40192 federal register /vol. 64, no. 141/friday, july 23 ... · 40192 federal register/vol. 64, no....

40192 Federal Register / Vol. 64, No. 141 / Friday, July 23, 1999 / Proposed Rules

ENVIRONMENTAL PROTECTIONAGENCY

40 CFR Parts 148, 261, 268, 271, and302

[SWH–FRL–6373–4]

RIN 2050–AD80

Hazardous Waste ManagementSystem; Identification and Listing ofHazardous Waste; Dye and PigmentIndustries; Land Disposal Restrictionsfor Newly Identified Wastes; CERCLAHazardous Substance Designation andReportable Quantities

AGENCY: Environmental protectionagency (EPA).ACTION: Notice of Proposed Rulemaking.

SUMMARY: The EPA is proposing to listtwo of three wastes from the dyes andpigment industries as hazardous wastesunder the Resource, Conservation, andRecovery Act (RCRA), which direct EPAto determine whether certain wastesfrom the dye and pigment industriespresent a hazard to human health or theenvironment. The effect of listing thesewastes will be to subject them tostringent management and treatmentstandards and to emergency notificationrequirements if there are releases ofthese hazardous wastes to theenvironment. EPA is proposingconcentration-based listings for the twowastes, such that waste generators havethe option of determining that theirspecific waste is nonhazardous. To havetheir waste classified as nonhazardous,generators must determine the levels ofconstituents in their wastes, and certifyto EPA that their wastes are below theregulatory levels of concern.DATES: EPA will accept publiccomments on this proposed rule untilSeptember 21, 1999; commentspostmarked after this date will bemarked ‘‘late’’ and may not beconsidered. Any person may request apublic hearing on this proposal by filinga request with Mr. David Bussard,whose address appears below, byAugust 6, 1999.ADDRESSES: If you wish to comment onthis proposed rule, you must send anoriginal and two copies of the commentsreferencing docket number F–1999–DPIP–FFFFF to: RCRA DocketInformation Center, Office of SolidWaste (5305G), U.S. EnvironmentalProtection Agency Headquarters (EPA,HQ), 401 M Street, SW, Washington, DC20460. Hand deliveries of commentsshould be made to the Arlington, VA,address listed below. You may alsosubmit comments electronically bysending electronic mail through the

Internet to: [email protected] the beginning of SupplementaryInformation for instructions onelectronic submission.

You should not submit electronicallyany confidential business information(CBI). You must submit an original andtwo copies of CBI under separate coverto: RCRA CBI Document Control Officer,Office of Solid Waste (5305W), U.S.EPA, 401 M Street, SW, Washington, DC20460. See the beginning ofSupplementary Information forinformation of viewing publiccomments and supporting materials.

Address requests for a hearing to Mr.David Bussard at: Office of Solid Waste,Hazardous Waste Identification Division(5304W), U.S. Environmental ProtectionAgency 401 M Street, SW, Washington,DC 20460, (703)308–8880.FOR FURTHER INFORMATION CONTACT: Forgeneral information, contact the RCRAHotline at (800) 424–9346 or TDD (800)553–7672 (hearing impaired). In theWashington, DC, metropolitan area, call(703) 412–9810 or TDD (703) 412–3323.For information on specific aspects ofthe rule, contact Narendra Chaudhari orRobert Kayser, Office of Solid Waste(5304W), U.S. Environmental ProtectionAgency, 401 M Street, SW, Washington,DC 20460. [E-mail addresses andtelephone numbers:[email protected],

(703) 308-0454;[email protected], (703)

308–7304)].SUPPLEMENTARY INFORMATION: Youshould identify comments in electronicformat with the docket number F–1999-DPIP-FFFFF. You must submit allelectronic comments as an ASCII (text)file, avoiding the use of specialcharacters and any form of encryption.If you do not submit commentselectronically, EPA is askingprospective commenters to voluntarilysubmit one additional copy of theircomments on labeled personal computerdiskettes in ASCII (text) format or aword processing format that can beconverted to ASCII (text). It is essentialto specify on the disk label the wordprocessing software and version/editionas well as the commenter’s name. Thiswill allow EPA to convert the commentsinto one of the word processing formatsutilized by the Agency. Please usemailing envelopes designed tophysically protect the submitteddiskettes. EPA emphasizes thatsubmission of comments on diskettes isnot mandatory, nor will it result in anyadvantage or disadvantage to anycommenter. Supporting documents inthe docket for this Notice are alsoavailable in electronic format on the

Internet. Follow these instructions toaccess these documents.WWW: http://www.epa.gov/epaoswer/

hazwaste/idFTP: ftp.epa/govLogin: anonymousPassword: your Internet addressFiles are located in /pub/gopher/

OSWRCRA.EPA will keep the official record for

this action in paper form. Accordingly,we will transfer all comments receivedelectronically into paper form and placethem in the official record, which willalso include all comments submitteddirectly in writing. The official record isthe paper record maintained at theaddress in ADDRESSES at the beginningof this document.

EPA responses to comments, whetherthe comments are written or electronic,will be in a notice in the FederalRegister or in a response to commentsdocument placed in the official recordfor this rulemaking. We will notimmediately reply to commenterselectronically other than to seekclarification of electronic comments thatmay be garbled in transmission orduring conversion to paper form, asdiscussed above.

You may view public comments andsupporting materials in the RCRAInformation Center (RIC), located atCrystal Gateway I, First Floor, 1235Jefferson Davis Highway, Arlington, VA.The RIC is open from 9 a.m. to 4 p.m.,Monday through Friday, excludingfederal holidays. To review docketmaterials, we recommend that you makean appointment by calling (703) 603–9230. You may copy a maximum of 100pages from any regulatory docket at nocharge. Additional copies cost $0.15/page. For information on accessingpaper and/or electronic copies of thedocument, see the SUPPLEMENTARYINFORMATION section.

How Can I Influence EPA’s Thinking onThis Proposed Rule?

In developing this proposal, we triedto address the concerns of all ourstakeholders. Your comments will helpus improve this rule. We invite you toprovide different views on options wepropose, new approaches we haven’tconsidered, new data, how thisproposed rule may effect you, or otherrelevant information. We welcome yourviews on all aspects of this proposedrule, but request comments on specificissues throughout this notice. Wegrouped these specific requests near theend of the sections in which we discussthe relevant issues. Your comments willbe most effective if you follow thesuggestions below:

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40193Federal Register / Vol. 64, No. 141 / Friday, July 23, 1999 / Proposed Rules

• Explain your views and reasoningas clearly as possible.

• Provide solid technical and costdata to support your views.

• If you estimate potential costs,explain how you arrived at the estimate.

• Tell us which parts you support, aswell as those with which you disagree.

• Provide specific examples toillustrate your concerns.

• Offer specific alternatives.• Refer your comments to specific

sections of the proposal, such as theunits or page numbers of the preamble,or the regulatory sections.

• Be sure to include the name, date,and docket number with yourcomments.

Contents of This Proposed Rule

The following outline lists thecontents of the preamble to thisproposed rule:I. Overview

A. Who Would Potentially be Affected byThis Proposed Rule?

B. Why Does This Proposed Rule ReadDifferently From Other Listing Rules?

C. What Are the Statutory Authorities forThis Proposed Rule?

II. BackgroundA. How Does EPA Define a Hazardous

Wastes?B. What Industries Are Covered in This

Proposed Rule?C. Confidential Business Information (CBI)

Issues Regarding This RuleD. What Wastes Are Covered in Today’s

Proposed Rule?E. What Information Did EPA Collect and

Use?III. Approach Used in This Proposed Listing

A. Summary of Today’s ActionB. What Is a Concentration-Based Listing?C. Why Is a Concentration-Based Approach

Being Used for This Listing?D. What Risk Assessment Approach Did

EPA Use?E. How Did EPA Estimate Exposure

Concentrations?F. What Exposure Assumptions and

Toxicity Levels Did EPA Use?G. What Uncertainties Are Associated With

the Risk Assessment?H. What Risk Level Do the Concentration

Levels Represent?

I. What Are the Proposed Listing Levels?IV. Proposed Listing Determinations and

RegulationsA. What Are the Proposed Regulations for

the Two Wastes?B. What Are We Proposing for

Anthraquinone Sludges?C. What Is the Status of Landfill Leachate

From Previously Disposed Wastes?V. Generator Requirements for

Implementation of Concentration-BasedListings

A. Do I Have to Determine Whether or NotMy Waste Is Hazardous?

B. How Do I Manage My Waste During thePeriod Between the Effective Date of theFinal Rule and Initial Hazardous WasteDetermination for My Waste?

C. What Are the Steps I Must Follow toDetermine Whether or Not My Waste IsHazardous?

D. What Are the Requirements for a WasteDetermined to be Nonhazardous, andHow Do I Claim My Waste to BeNonhazardous?

E. What Records Am I Required to KeepOn-site to Support a NonhazardousClaim for My Waste?

F. What Happens if I Do Not Meet theNotification and RecordkeepingRequirements for a Waste That I HaveDetermined to be Nonhazardous?

G. What Are the Follow-up Waste AnalysisRequirements for My NonhazardousWaste?

H. What Happens If My Waste ConstituentConcentrations Are No Longer Below theListing Concentrations?

I. Can I Treat My Waste to Below ListingConcentrations and Then Claim MyWaste to Be Nonhazardous?

J. Alternative Implementation ApproachVI. Proposed Treatment Standards Under

RCRA’s Land Disposal RestrictionsA. What are EPA’s Land Disposal

Restrictions (LDRs)?B. How Does EPA Develop LDR Treatment

Standards?C. What Treatment Standards Are

Proposed?D. Other LDR-Related ProvisionsE. Is There Treatment and Management

Capacity Available for These ProposedNewly Identified Wastes

VII. State Authority and ComplianceA. How Are States Authorized Under

RCRA?B. What Is the Effect of Today’s Proposal

on State Authorizations?C. Who Must Notify EPA That They Have

a Hazardous Waste?

D. What Do Generators and TransportersHave to Do?

E. Which Facilities Are Subject toPermitting?

VIII. CERCLA Designation and ReportableQuantities

A. What Is the Relationship Between RCRAand CERCLA?

B. Is EPA Proposing to Add Dye andPigment Production Wastes to CERCLA?

C. Is EPA Proposing to Adjust the StatutoryOne Pound RQ for K167 and K168Wastes?

D. When Do I Need to Report a Release ofK167 and K168 Wastes Under CERCLA?

E. How Do I Report a Release?F. What Is the Statutory Authority for This

Program?IX. Analytical and Regulatory Requirements

A. Is This a Significant Regulatory Action?(Executive Order 12866)

B. Why Is This Proposed Rule Necessary?C. What Regulatory Options Were

Considered?D. What Are the Potential Cost Impacts of

Today’s Proposed Rule?E. What Are the Potential Economic

Impacts to Industry From the ProposedRule?

F. What Are the Potential Benefits Fromthe Proposed Rule?

G. What Consideration Was Given to SmallEntities?

H. What Consideration Was Given toChildren’s Health?

I. What Consideration Was Given toEnvironmental Justice?

J. What Consideration Was Given toUnfunded Mandates?

K. What Consideration Was Given to TribalGovernments Analysis?

L. Was the National Technology Transferand Advancement Act Considered?

M. How is the Paperwork Reduction ActConsidered in Today’s Proposal?

I. Overview

A. Who Would Potentially Be Affectedby This Proposed Rule?

The action, if finalized, couldpotentially affect those who handle thewaste streams proposed for listing onEPA’s RCRA list of hazardous wastes.This action may also affect entities thatmay need to respond to releases of thesewastes as CERCLA hazardoussubstances. Those affected may include:

Category Affected entities

Industry ............................................................... Generators of the following listed wastes, or entities that treat, store, transport, or dispose ofthese wastes or materials derived from them.

K167 Spent filter aids, diatomaceous earth, or adsorbents used in the production of azo,anthraquinone, or triarylmethane dyes, pigments, or FD&C colorants.

K168 Wastewater treatment sludges from the production of triarylmethane dyes and pig-ments (excluding triarylmethane pigments using aniline as a feedstock).

State, Local, Tribal Govt ..................................... State and Local Emergency Planning entities.Federal Govt ....................................................... National Response Center, and any Federal Agency that handle the listed waste or chemical.

We do not intend this table to beexhaustive, but rather our aim is to

provide a guide for readers regardingentities likely to be regulated by this

action. This table lists those entities thatEPA now is aware potentially could be



affected by this action. However, thisaction may affect other entities notlisted in the table. To determinewhether your facility is regulated by thisaction, you should examine 40 CFRparts 260 and 261 carefully in concertwith the amended rules found at theend of this Federal Register document.Furthermore, we are proposing this ruleas a concentration-based listing, suchthat waste generators have the option ofdetermining that their specific waste isnonhazardous (see Sections IV and V oftoday’s rule). If you have questionsregarding the applicability of this actionto a particular entity, consult the personlisted in the preceding section entitledFOR FURTHER INFORMATION CONTACT.

B. Why Does This Proposed Rule ReadDifferently From Other Listing Rules?

Today’s proposed listingdetermination preamble and regulationsare written in ‘‘readable regulations’’format. The authors tried to use activerather than passive voice, plainlanguage, a question-and-answer format,the pronouns ‘‘we’’ for EPA and ‘‘you’’for the owner/generator, and othertechniques to make the information intoday’s proposed rule easier to read andunderstand. This new format is part ofthe Agency’s efforts at regulatoryreinvention, and it makes today’sproposed rule read differently fromother listing rules. The Agency believesthat this new format will increasereaders’ abilities to understand theregulations, which should then increasecompliance, make enforcement easier,and foster better relationships betweenEPA and the regulated community.

All of the requirements found intoday’s proposed regulations wouldconstitute binding, enforceable legalrequirements. The plain language formatused in today’s proposed regulationsmay appear different from other rules,but it would establish binding,enforceable legal requirements just asthose in the existing regulations.

C. What Are the Statutory Authoritiesfor This Proposed rule?

EPA is proposing these regulationsunder the authority of Sections 2002(a),3001 (a), (b) and (e)(2), 3004 (g) and (m),and 3007(a) of the Solid Waste DisposalAct (commonly referred to as RCRA), asamended by the Hazardous and SolidWaste Amendments of 1984 (HSWA).These statutes are codified in Volume42 of the United States Code (U.S.C.),sections 6901 to 6992(k).

Section 102(a) of the ComprehensiveEnvironmental Response,Compensation, and Liability Act of 1980(CERCLA), 42 U.S.C. 9602(a), is the

authority for the CERCLA aspects of thisproposed rule.

II. Background

A. How Does EPA Define a HazardousWaste?

EPA’s regulations establish two waysof identifying wastes as hazardousunder RCRA. Wastes may be hazardouseither if they exhibit certain properties(‘‘characteristics’’), or if the wastes areincluded on a specific list of wastes EPAhas determined are hazardous (‘‘listing’’a waste as hazardous). EPA’s regulationsin the Code of Federal Regulations (40CFR) §§ 261.20 through 261.24 definecharacteristic wastes. These regulationsclassify wastes that exhibit certainproperties as having the characteristic ofignitability, corrosivity, reactivity, ortoxicity. As a generator, you mustidentify wastes as characteristic wastesby sampling a waste, or by usingappropriate company recordsconcerning the nature of the waste, todetermine whether a waste has therelevant properties (see § 262.11(c)).There is no regulatory requirement toconduct sampling, but personsimproperly managing materials that arefound to be characteristic hazardouswastes are subject to enforcementactions under RCRA.

EPA may ‘‘list’’ wastes as hazardousif we conclude that the waste is capableof posing a substantial present orpotential hazard to human health or theenvironment when improperlymanaged. We have established criteriafor listing a hazardous waste at 40 CFR261.11(a)(3) for wastes that containhazardous constituents identified inAppendix VIII of 40 CFR part 261. Indeciding whether a wastes poses asubstantial hazard, we consider thefactors given in § 261.11(a)(3). We placeconstituents in Appendix VIII ifscientific studies have shown achemical has toxic effects on life forms(see 261.11(a)(3)). When listing a waste,we also add the hazardous constituentsthat serve as the basis for listing toAppendix VII to part 261.

The regulations at 40 CFR 261.31through 261.33 contain the varioushazardous wastes the Agency has listedto date. Section 261.31 lists wastesgenerated from non-specific sources,known as ‘‘F-wastes,’’ and containswastes that are usually generated byvarious industries or types of facilities,such as ‘‘wastewater treatment sludgesfrom electroplating operations’’ (seecode F006). Section 261.32 listshazardous wastes generated fromspecific industry sources, known as ‘‘K-wastes,’’ such as ‘‘Spent potliners fromprimary aluminum production’’ (see

code K088). Section 261.33 containslists of commercial chemical productsand other materials that becomehazardous wastes, known as ‘‘P-wastes’’or ‘‘U-wastes,’’ when they are discardedor intended to be discarded.

The proposed regulations in today’snotice would list wastes from a specificindustry and thus these wastes wouldbe added to § 261.32 with K-wastecodes. We are proposing to addconstituents that serve as the basis forthe proposed listings to Appendix VII,Part 261. For the chemicals not alreadylisted on the list of HazardousConstituents in Appendix VIII, we arealso proposing to add these chemicals tothat list.

Wastes listed as hazardous are subjectto federal requirements under RCRA.These regulations affect persons whogenerate, transport, treat, store ordispose of such waste. Facilities thatmust meet the hazardous wastemanagement requirements, includingthe need to obtain permits to operate,commonly are referred to as Subtitle Cfacilities. Subtitle C is Congress’ originalstatutory designation for that part ofRCRA that directs EPA to issue thoseregulations for hazardous wastes as maybe necessary to protect human health orthe environment. EPA standards andprocedural regulations implementingSubtitle C are found generally at 40 CFRParts 260 through 272.

Solid wastes that are not hazardouswastes may be disposed of at facilitiesthat are overseen by state and localgovernments. These are the so-calledSubtitle D facilities, which generallyimpose less stringent requirements onmanagement of wastes. Subtitle D isCongress’ original statutory designationfor that part of RCRA that deals withdisposal of solid waste. EPA regulationsaffecting Subtitle D facilities are foundgenerally at 40 CFR Parts 240 thru 247,and 255 thru 258. Regulations forSubtitle D landfills that acceptmunicipal waste (‘‘municipal solidwaste landfills’’) are given in Part 258.

Residuals from the treatment, storage,or disposal of most listed hazardouswastes are also classified as hazardouswastes based on the ‘‘derived-from’’ rule(40 CFR 261.3(c)(2)(i)). For example, ashor other residuals from treatment of thelisted wastes generally carry the originalwaste code and are subject to thehazardous waste regulations. Also, the‘‘mixture’’ rule (40 CFR 261.3(a)(2)(iv))provides that, with certain limitedexceptions, any mixture of a listedhazardous waste and a solid waste isitself a RCRA hazardous waste.However, when these wastes arerecycled as described in 40 CFR261.2(e)(1)(iii) or 261.4(a)(8), they are



not solid wastes and are not subject tohazardous waste regulations. Forexample, if a waste is collected andreturned in a closed-loop fashion to thesame process, the waste is not regulated.

All RCRA hazardous wastes are alsohazardous substances under theComprehensive EnvironmentalResponse, Compensation, and LiabilityAct (CERCLA), as described in section101(14)(C) of the CERCLA statute. Thisapplies to wastes listed in 261.31through 261.33, as well as any wastesthat exhibit a RCRA characteristic. Table302.4 at 40 CFR 302.4 lists CERCLAhazardous substances along with theirreportable quantities (RQs). Anyonespilling or releasing a substance at orabove the RQ must report this to theNational Response Center, as requiredin CERCLA Section 103. In addition,Section 304 of the Emergency Planningand Community Right-to-Know Act(EPCRA) requires facilities to report therelease of a CERCLA hazardoussubstance at or above its RQ to State andlocal authorities. Today’s rule proposesto establish RQs for the newly listedwastes. EPA is not taking action at thistime to adjust the one-pound statutoryRQs for the newly listed hazardoussubstances.

B. What Industries Are Covered in ThisProposed Rule?

1. The Dye and Pigment Industries

Today’s proposal applies to themanufacturers of organic dyes andpigments, and does not affect producersof only inorganic dyes or pigments. Wehave already issued final rulesgoverning the manufacturing ofinorganic pigments. Section 261.32contains wastes codes K002 throughK008 that list wastewater treatmentsludges and other residues from theproduction of inorganic pigments.

The organic dye and pigmentindustries are comprised of three relatedindustries, dye manufacturers, pigmentmanufacturers, and Food, Drug, andCosmetic (FD&C) colorantmanufacturers. Dyes are colored orfluorescent organic substances whichimpart color to a substrate. When a dyeis applied, it penetrates the substrate ina soluble form, after which it may ormay not become insoluble. Dyes areused to color fabrics, leather, paper, ink,lacquers, varnishes, plastics, cosmetics,and some food items. Dye manufacturein the U.S. includes more than 2,000individual dyes, the majority of whichare produced in quantities of less than50,000 pounds. The U.S. InternationalTrade Commission’s (USITC)production data for 1994 showed total

production of approximately 156,000tons for all organic dyes.

Organic pigments possess uniquecharacteristics that distinguish themfrom dyes and other colorants. Theprimary difference between pigmentsand dyes is that, during the applicationprocess, pigments are usually insolublein the substrate. Pigments also retain acrystalline or particulate structure andimpart color by selective absorption orby scattering of light. This is differentfrom dyes, which impart color byselective absorption. Pigments are usedin a variety of applications; the primaryuse is in printing inks. There are fewerpigments produced than dyes, thoughpigment batches are generally larger insize. The USITC publication, Industryand Trade Summary: Synthetic OrganicPigments, USITC (No. 3021, February1997), indicates that the total U.S.production was an estimated 71,500tons of organic pigments in 1995.

FD&C colorants are dyes andpigments that have been approved bythe Food and Drug Administration(FDA) for use in food items, drugs, and/or cosmetics. Typically, FD&C colorantsare azo or triarylmethane dyes and aresimilar or identical to larger-volume dyeproducts not used in food, drugs, andcosmetics. Manufacture of FD&Ccolorants is typically the same as thatfor the corresponding dye or pigment,except that the colorant undergoesadditional purification. Each FD&Ccolorant batch is tested and certified bythe FDA.

2. Previous Regulations of Wastes FromThis Industry

The 1984 Hazardous and Solid WasteAmendments (HSWA) to RCRA requireEPA to make listing determinations forwastes from the production of dyes andpigments (see RCRA section 3001(e)(2)).On June 1991 EPA entered into aproposed consent decree in a lawsuitfiled by the Environmental DefenseFund (EDF v. Browner, Civ. No. 89–0598(D.D.C.), hereafter referred to as theconsent decree). The consent decree setsout a series of deadlines forpromulgating RCRA listing decisions,and has been amended as necessary.Paragraph 1h. of the consent decreeobligates EPA to determine whether ornot to list as hazardous certain wastesfrom the production of dyes andpigments.

In the consent decree EPA agreed toexamine wastes from the manufacture ofthree classes of dyes and pigments forregulation: azo/benzidine,anthraquinone, and triarylmethane. Theagreement specifies that the listingdetermination is to address wastes fromthe azo, monoazo, diazo, triazo, polyazo,

azoic, and benzidine categories of theazo/benzidine dye and pigment class;the anthraquinone and perylenecategories of the anthraquinone dye andpigment class; and the triarylmethane,triphenylmethane, and pyrazolonecategories of the triarylmethane dye andpigment class. The settlement agreementalso specifies that the listingdetermination is to address thefollowing specific types of wastes wherethey are found: spent catalysts, reactorstill overheads, vacuum systemcondensate, process waters, spentadsorbent, equipment cleaning sludge,product mother liquor, productstandardization filter cake, dustcollector filter fines, recovery stillbottoms, treated wastewater effluent,and wastewater treatment sludge.

Due to the market demand for a widevariety of dye and pigment products, thedye and pigment industries typicallyoperate successive batch processesproducing varying dye and pigmentproducts. These batch operationsgenerate a wide variety of solid wasteson a periodic basis. These wastesgenerally can be divided into twogeneral types: commingled wastes andprocess-specific wastes. Commingledwastes are wastes combined frommultiple processes prior to management(e.g., wastewaters). Commingled wastesinclude secondary wastes generatedfrom the treatment of other commingledwastes (e.g., wastewater treatmentsludges). Process-specific wastes arewastes that are unique to a specificprocess and may be managedindependently of one another (e.g.,spent filter aids).

On December 22, 1994, EPApublished a notice that proposed listingdecisions for 11 of the wastes coveredin the consent decree. EPA deferred anylisting decisions on three other wastes.(See 59 FR 66072). As a result, EPA andEDF amended the consent decree(paragraph 1h(v)) to establish deadlinesfor promulgating listing decisions fortwo of the deferred wastes. In today’snotice, EPA is proposing listingdeterminations for all three of thedeferred wastes.

C. Confidential Business Information(CBI) Issues Regarding This Rule

For the purpose of developing thesupporting data for listing rulemakingsfor the dye and pigment industry, aquestionnaire was sent out to industrypursuant to RCRA Section 3007. Someof the information collected fromindustry and used in the 1994 proposedrule, as well as today’s proposed rule,was claimed as confidential. As a resultof a consent order and a subsequentpreliminary injunction in connection



with a case brought by some of the dyeand pigment industry to prevent thedisclosure of information claimed asCBI, Magruder et al. v. U.S. EPA, Civ.No. 94–5768 (D.N.J.), the EPA isenjoined from disclosing informationclaimed as confidential until all CBIdeterminations have been made on thedata intended to be published inconnection with these proposed rules.

Therefore, as with the 1994 proposedrule, we have removed information fromthis preamble and rule (and supportingbackground documents), if theinformation may disclose informationclaimed as CBI. We note the missinginformation in the text to this rule,where appropriate. However, we haveincluded data that are not claimed asCBI, whenever such data are available.We have also included data that weobtained from public or non-CBIsources. Wherever we are unable toinclude pertinent data in a table, thefollowing statement appears in afootnote: ‘‘Relevant data are notincluded at the present time due tobusiness confidentiality concerns.’’

At this time EPA expects that this rulewill also need some form of notice ofdata availability (NODA) or reproposalprior to promulgation as a final rulebecause of CBI problems. However, EPAis proceeding as noted above to allowpublication of as much of the proposedrule as can be shared at this time. Thus,commenters can see as much as possibleof EPA’s current thinking and cancomment on the basic approach, theimplementation issues, and otherportions of the rule that can reasonablybe commented upon, even with thecurrent redactions. We intend tosupplement the public record prior toissuing a final listing determination.

D. What Wastes Are Covered in Today’sProposed Rule?

Today’s proposal applies only to thedye and pigment manufacturingindustries. The end-user markets fordyes and pigments, which includetextiles, paper, leather, ink, paints,coatings, plastics, fibers, and other lowvolume markets, are not within thescope of our listing determination.Consistent with both HSWAAmendments of 1984 and the consentdecree, EPA is only making proposeddeterminations on wastes from theproduction and manufacturing of dyesand pigments.

In the 1994 proposed rule, the Agencydeferred action on three waste streamsbased on insufficient characterizationdata, or lack of health-based levels forspecific constituents of concern. The‘‘deferred’’ dye and pigment wastestreams are the subject of today’s

proposed rule. The three deferredwastes are:

• Spent filter aids, diatomaceousearth, or adsorbents used in theproduction of azo, anthraquinone, ortriarylmethane dyes, pigments, or FD&Ccolorants.

• Wastewater treatment sludge fromthe production of triarylmethane dyesand pigments (excluding triarylmethanepigments using aniline as a feedstock).

• Wastewater treatment sludge fromthe production of anthraquinone dyesand pigments.

This proposed rule will refer to thesewastes as ‘‘filter aids,’’ ‘‘TAM sludges,’’and ‘‘anthraquinone sludges’’respectively. Brief descriptions of thethree wastes are given below.

Filter AidsManufacturers add filter aids (e.g.,

diatomaceous earth) to some reactionprocesses to remove particulateimpurities. The spent filter aids then arecollected in a filter press and the presscake, sometimes called a clarificationsludge, is disposed as waste. In somecases, facilities also use filter aidsfollowing completed reactions to clarifyand purify certain products. The Agencygrouped spent filter aids, diatomaceousearth, and adsorbents used in theproduction of all relevant classes ofdyes and pigments, because thesewastes typically contain unreacted rawmaterials, by-products, and impurities.The constituent composition of thesefilter aids varies depending on the dyeor pigment produced and the rawmaterials used. The Agency deferred adetermination as to whether to list FilterAids in 1994 due to insufficient wastecharacterization data for this widelyvariable waste (see 59 FR 66103).

TAM SludgesAs described in the 1994 proposed

rule, EPA evaluated wastes from theproduction of TAM pigments that useaniline as starting material (‘‘feedstock’’)separately from other TAM wastewatersand wastewater treatment sludges. Thiswas because the process that usesaniline as a feedstock is somewhatdifferent (see 59 FR 66081 and 66096).We proposed listing decisions forwastes from TAM pigments derivedfrom aniline in the 1994 notice, butdeferred a decision for wastewatertreatment sludge from the production ofTAM dyes and pigments that do not useaniline. Today’s proposed ruleaddresses the wastewater treatmentsludges from production of TAM dyesand pigments, excluding TAM pigmentsusing aniline as a feedstock.

The typical wastewater treatmentsludge is generated via the treatment of

the following process waste streams:equipment washdown, plant run-off,spent scrubber liquid and mother liquor.Wastewater treatment steps usuallyinclude: neutralization to adjust pH,clarification, and biological treatment.Pretreatment sludges may be generatedfrom precipitation/filtration inneutralization tanks, and from treatmentwith adsorbents, such as activatedcarbon. Biological treatment can alsolead to generation of a wastewatertreatment sludge. Sludge streams arefurther processed, typically throughfiltration and dewatering, prior todisposal. Information related to themanagement of TAM sludges is notincluded due to business confidentialityconcerns.

In support of the 1994 proposed rule,we attempted to sample TAM sludges(from production of TAM pigments thatdo not use aniline as a feedstock).However, TAM dyes or pigments werenot being produced at the time EPAcollected its samples, and we could notattribute any constituents detected toTAM production. Thus, EPA deferredany listing decision for sludges from theproduction of TAM dyes and pigments(excluding TAM pigments using anilineas a feedstock) due to insufficient wastecharacterization data (see 59 FR 66095).

Anthraquinone Sludges

The typical anthraquinone sludge isgenerated via the treatment of processwastewater similar to that described forTAM sludges. From the data collectedfor the 1994 proposed rule, the onlyconstituents detected in the waste thatwe could attribute to anthraquinoneproduction did not have health-basedbenchmarks. EPA was unable to identifyany appropriate surrogate compound ofknown toxicity to estimate the toxicityof these constituents. Because of thelack of health-based benchmarks orreliable surrogates, we deferred anylisting determination in the 1994proposal. As part of the deferral, werequested toxicity data or any suitablesurrogates for the two wasteconstituents (see 59 FR 66101).

E. What Information Did EPA Collectand Use?

1. The RCRA Section 3007 Survey

In support of the 1994 proposed rule,EPA distributed a detailed RCRAsection 3007 survey to dye and pigmentmanufacturing facilities in 1992. Thepurpose of the questionnaire was tocollect information on the 12 specificresiduals identified in the 1991 consentdecree. Most questions in this surveyrequested information on wastegeneration and management activities in



1991. From data provided byquestionnaire respondents, EPAidentified facilities that manufactureazo, anthraquinone, or triarylmethanedyes or pigments (the number offacilities is not included due to businessconfidentiality concerns). In thequestionnaire, EPA collectedinformation regarding the productsmanufactured at each facility, rawmaterials and additives used, and 1991production volumes. The questionnairealso collected information on themanagement of the wastes generated byeach facility, including waste quantityand how the wastes were managed anddisposed.

EPA contacted companies generatingthe three deferred wastes at issue intoday’s proposed rule to update theinformation in the 1992 § 3007 survey.The updated information EPA collectedincludes the quantities of wastesgenerated (for the year 1997), and thewaste management practices used by thefacilities for each of the wastes. TheAgency used this updated informationin its risk assessment, as described inSection III.D. The following discussionsummarizes the information collectedfor each waste.

Filter AidsIn response to the 1992 questionnaire,

a number of dye and pigmentmanufacturers reported generating filteraid wastes. We are not includinginformation on the number of facilitiesgenerating this waste, nor the wastequantities reported for 1991, due tobusiness confidentiality concerns. Wealso cannot include informationcollected by EPA in 1998 on the numberof generators and the quantities for 1997for the same reason. Facilities thatgenerated spent filter aids may generatethis waste from the production of a widevariety of different dyes and pigments.For example, one facility reportedgenerating a total of 90 Mtons of filteraid wastes in 1997, comprised of 18filter aids arising from the production ofdyes and/or pigments.

TAM SludgesIn response to the 1992 questionnaire,

a number of dye and pigmentmanufacturers reported generating TAMwastewater treatment sludges. We arenot including information on thenumber of facilities generating thiswaste, nor the waste quantities reportedfor 1991, due to business confidentialityconcerns. We also cannot includeinformation collected by EPA in 1998on the number of generators and thequantities for 1997 for the same reason.As noted previously, EPA was unable tocollect samples of this waste.

Anthraquinone Sludges

In response to the 1992 questionnaire,a number of dye and pigmentmanufacturers reported generatinganthraquinone wastewater treatmentsludges. We are not includinginformation on the number of facilitiesgenerating this waste, nor the wastequantities reported for 1991, due tobusiness confidentiality concerns. Wealso cannot include informationcollected by EPA in 1998 on the numberof generators and the quantities for 1997for the same reason.

As noted above, the only chemicalsdetected in sludge that could beattributed to anthraquinone productionin 1994 did not have health-basedbenchmarks. EPA did not receive anyinformation in comments on the 1994proposal that would assist us incalculating health benchmarks.Furthermore, EPA has not subsequentlyfound any suitable surrogates toestimate the toxicity of the compoundsin question.

2. Sampling and Analysis Data

For the 1994 proposed rule, theAgency performed sampling tocharacterize the wastes generated at dyeand pigment manufacturing facilities.EPA collected a total of 34 wastesamples from facilities to characterizethe residuals under evaluation. Theanalytical results for all the wastes aresummarized in the BackgroundDocument for Identification and Listingof the Deferred Dye and PigmentWastes, Appendix A (hereafter calledthe Listing Background Document) fortoday’s proposal, which is available inthe docket. (Note however, that wecannot release much of the analyticaldata due to business confidentialityconcerns). The dye and pigmentmanufacturers also provided a limitedamount of additional waste samplingand analysis data in 1994. Theseadditional data include aggregatedanalytical results from 19 industryanalyses of samples that EPA and thefacilities split during sampling visits.An industry trade group (Color PigmentManufacturers’ Association, or CPMA)aggregated this analytical informationand submitted this information to EPAin April 1994. CPMA also included thisinformation in the group’s publiccomments on the 1994 proposed rule(see Docket No. F–94–DPLP–FFFFF,item DPLP–0025). We used the availablesampling data from these sources toidentify potential constituents ofconcern for use in today’s proposedrule.

For the 1994 proposed rule, EPAcollected limited sampling data for

spent filter aids. Our sampling resultswere inconclusive for TAM sludgesbecause these products were notmanufactured during our sampling visit.While we did succeed in obtainingsamples of anthraquinone sludge, we donot have health benchmarks for the twoconstituents that could be attributed toproduction of anthraquinone products.

III. Approach Used in This ProposedListing

A. Summary of Today’s Action

In listings promulgated by EPA, wetypically describe the scope of thelisting in terms of the waste materialand the industry or process generatingthe waste. However, in today’s rule weare proposing to use a new approach inthese listings, a ‘‘concentration-basedlisting.’’ In a concentration-basedlisting, a waste would be hazardousunless a determination is made that itdoes not contain any of the constituentsof concern at or above specified levelsof concern. This approach draws fromthe concept of the characteristicapproach to defining a hazardous waste,in that whether a waste is hazardousdepends on the levels of keyconstituents in the wastes. We describethis concept in detail later in this notice.

We are proposing concentration-basedlistings for two of the deferred wastes:

• Spent filter aids, diatomaceousearth, or adsorbents used in theproduction of azo, anthraquinone, ortriarylmethane dyes, pigments, or FD&Ccolorants.

• Wastewater treatment sludge fromthe production of triarylmethane dyesand pigments (excluding triarylmethanepigments using aniline as a feedstock).

For both wastes, the listings wouldapply if the wastes contain any of theconstituents identified in the regulationat a concentration equal to or greaterthan the hazardous level set for thatconstituent (see tables IV–1 and IV–2 forlevels). We are also proposing a set ofconditions and requirements that mustbe met if a facility wishes to claim itswaste does not exceed these levels andis, therefore, not covered by the listing.

We are proposing not to list ashazardous the third waste considered:

• Wastewater treatment sludge fromthe production of anthraquinone dyesand pigments.

In the following sections we describethe concept of a concentration-basedlisting and the risk assessmentmethodology we used to developconcentration limits for each wastes. Wedescribe our proposed decisions in moredetail in Section IV.



B. What Is a Concentration-BasedListing?

A concentration-based listingspecifies constituent-specific levels in awaste that causes the waste to becomea listed hazardous waste. In thisproposed rule, we identify constituentsof concern likely to be present in twocategories of dye and pigment wastes.Using risk assessment tools developedto support our hazardous wasteidentification program, we assessed thepotential risks associated with theconstituents of concern. From thisanalysis, we developed ‘‘listingconcentrations’’ for each of theconstituents of concern in the two wastecategories.

If you generate any of the wastesincluded in the two categories of dyeand pigment wastes referenced above,you must either determine whether ornot your waste is hazardous or assumethat it is hazardous as-generated. We areproposing that you determinerepresentative concentrations for theconstituents of concern in your wastethrough sampling and analyses, unlessyou can use process knowledge todemonstrate that certain constituentsare not present in your waste. Based onthis information, you must make adetermination as to whether or not yourwaste is a listed hazardous waste. Yourwaste would be a listed hazardous wasteif it contains any of the constituents ofconcern at a concentration equal to orgreater than the hazardousconcentration identified for thatconstituent. If all of the constituents ofconcern in your waste were below theirrespective listing concentrations, youwould need to notify EPA that yourwastes are nonhazardous. The detaileddescriptions of the steps you would berequired to follow to implement theconcentration-based listing aredescribed later in this proposed rule.

C. Why Is a Concentration-BasedApproach Being Used for This Listing?

There are several reasons for using aconcentration-based approach for listingthe deferred dyes and pigments wastes.First, these wastes are generated by anindustry that uses batch processes tomanufacture a variety of products, inresponse to market demand for a widevariety of dye and pigment products.Batch operations may result in highlyvariable wastes at the same facility ordifferent facilities. A concentration-based approach allows the variablewastes generated at these facilities to beevaluated individually for hazard, soonly the truly hazardous wastes arelisted. This tailored approach is morecost-effective for the industry than a

standard listing, and avoids theunnecessary regulation of nonhazardouswaste.

Alternatively, EPA could haveattempted to collect more informationon these specific wastes to support astraightforward listing, i.e., without anyconcentration limits. However, such adata collection effort would have beendifficult due to the wide variety ofindividual dye or pigment productsproduced and the potential variabilityin the waste characteristics. Forexample, one facility generated 18 filteraid wastes in 1997 arising from theproduction of different dyes and/orpigments. Gathering sufficient samplesto evaluate all potential filter aid wasteswould require a large commitment ofscarce Agency resources that wouldhave been beyond the reasonable scopeof this rulemaking, especially given thetime constraints of the existing ConsentDecree. Given the relatively lowquantities of the individual filter aidsproduced, EPA does not feel such aneffort was justified.

Second, many manufacturers in thedye and pigment industries want tokeep facility-specific product and wasteinformation confidential. Thesemanufacturers are concerned thatrelease of such information could causecompetitive harm. A concentration-based listing allows us to rely less onCBI, since we do not use thisinformation directly to set the listingconcentrations. This means we don’tuse specific information, such asproduct formulations or concentrationsof constituents in the wastes, to sethazardous concentration levels forconstituents of concern. As notedearlier, however, in this particularlisting EPA still must resolve the CBIclaims on some specific data prior torelease.

Finally, a concentration-based listingapproach may provide an incentive forhazardous waste generating facilities tomodify their manufacturing processes ortreat their wastes. For example, if afacility has a listed hazardous wastebased on constituent-specificconcentration levels established by EPA,it also knows the requiredconcentrations levels of constituents inits waste below which its waste wouldbecome nonhazardous. Therefore, thefacility may decide to modify itsmanufacturing process in order togenerate a nonhazardous waste. Thus,this approach encourages wasteminimization.

Section 1003 of the HSWA indicatesthat one of RCRA’s goals is to promoteprotection of human health and theenvironment and to conserve valuablematerial and energy resources by

‘‘minimizing the generation ofhazardous waste and the land disposalof hazardous waste by encouragingprocess substitution, materials recovery,properly conducted recycling, and reuseand treatment.’’ Section 1003 furtherprovides that it is a national policy ofthe United States that, wheneverfeasible, the generation of hazardouswaste is to be reduced or eliminated asexpeditiously as possible.

The Pollution Prevention Act of 1990(42 U.S.C. 13101 et seq., Pub. L. 101–508, November 5, 1990) provides ahierarchy of pollution preventionapproaches. Pollution should beprevented or reduced; pollution thatcannot be prevented should be recycledor reused in an environmentally safemanner; pollution that cannot beprevented/reduced or recycled shouldbe treated; and disposal or release intothe environment should be chosen onlyas a last resort. A concentration-basedlisting may prevent pollution bydiscouraging generation of wastes withhigh levels of toxic constituents. If EPAprovides a concentration-based target inthe listing, generators would have theregulatory and economic incentive tomeet the reduced levels.

D. What Risk Assessment Approach DidEPA Use?

Under a concentration-based listingapproach, EPA must calculateconcentration levels, or ‘‘listing levels,’’in the waste that would present ahazard. To accomplish this, the Agency:(1) Selected constituents of potentialconcern in the waste, (2) chose aplausible waste management scenario,(3) calculated exposure concentrationsby modeling the release and transport ofthe constituents from the wastemanagement unit to the point ofexposure, and (4) calculated wasteconcentrations that would yield thetarget risk level at the point of exposure.

The following sections present anoverview of the analysis EPA used tocalculate risk-based listing levels forfilter aids and TAM sludges generatedduring the manufacture of organic dyeand pigment products. You will findmore details of how we selected theconstituents of concern in the ListingBackground Document. Details of therisk assessment are provided in thedocument in the docket entitledDevelopment of Risk-Based ListingConcentrations for HazardousConstituents Contained in Spent FilterAids and Triarylmethane (TAM)Wastewater Treatment Sludges(hereafter called the Risk AssessmentBackground Document).



1. Choosing the Constituents of Concern

Our initial universe of constituents ofpotential concern included anyconstituent detected in any wastestreamfrom the production of all classes ofdyes and pigments we examined (i.e.,all wastes sampled associated with theproduction of azo, TAM, andanthraquinone dyes or pigments,including FD& C colorants). Wetypically obtain samples from thespecific wastes of concern for a standardlisting evaluation. However, obtainingrepresentative samples of filter aids andTAM sludges was difficult, as noted inthe 1994 proposal (see 59 FR 66095 and66103), due to widely varying wastesand batch processes. We believe that thebroad universe of constituents detectedin all wastes examined provides anappropriate starting point for selectingconstituents of concern for filter aids,because these wastes may be generatedfrom the production of many kinds ofdyes and pigments. Because TAMsludge is a much more narrowly definedwaste, we relied on availableinformation regarding constituents usedin TAM production to determine whatconstituents we expect in the waste.

Our primary source of potentialconstituents was the set of analyticaldata EPA collected to support the 1994proposed rule described in Section I.E.2of today’s notice. We also examined thelimited analytical data from industry toconfirm the presence of constituents.These data sets included samplingresults for all wastes underconsideration in the 1994 proposal,because the available analytical data forthe three specific wastes at issue arelimited. For filter aids, EPA obtainedsome samples in support of the 1994proposed rule. However, filter aids maypotentially contain a variety ofconstituents, depending on whatproducts and processes are in use bydifferent facilities. Therefore, thelimited waste analysis data for filter aidsalone were not adequate to establishconstituents of concern. We have nowaste analysis data that would allow usto identify specific constituents ofconcern for TAM or anthraquinonesludges. As noted in Section II.D, oursampling results were inconclusive forTAM sludges because TAM dyes orpigments were not being produced atthe time EPA collected its samples.While we did succeed in obtainingsamples of anthraquinone sludge, we donot have health benchmarks for the twoconstituents that could be attributed toproduction of anthraquinone products.Thus, we did not pursue a listing forthis waste.

We used the analytical data from allwastes to develop an initial list ofpotential chemicals of concern. We thenreduced and augmented this list basedon several factors. First, we can onlydevelop a concentration level if a healthbenchmark exists for the chemical.Therefore, we removed constituentswithout health benchmarks from furtherevaluation. The sources we used forhealth benchmark data are summarizedbelow; the Risk Assessment BackgroundDocument contains further information(see Appendix E).

Due to the lack of health-basedbenchmarks, we excluded certainconstituents from consideration intoday’s proposed rule that wepreviously evaluated for azo dye andpigment wastes in the 1994 proposedrule. These constituents areacetoacetanilide (AAA), acetoacet-o-toluidine (AAOT), and acetoacet-o-anisidine (AAOA). For the 1994proposal, we derived health basednumbers based on a Structural ActivityRelationship (SAR) analysis. TheAgency has since reevaluated andrevised the SAR analysis based oncomments received in response to the1994 proposal. The revised analysis,which has been independently peerreviewed, concludes that the currentavailable data are insufficient to make aquantitative estimation of thecarcinogenic potential of thesecompounds, or to establish provisionalnon-cancer benchmarks. The revisedtoxicological analysis for thesecompounds and the peer reviewdocuments are provided in Appendix Ato the Risk Assessment BackgroundDocument.

We then screened the remainingpotential constituents to removechemicals that we believed were of littleuse in defining the hazardouscharacteristic of the two wastes at issue.In this screen we considered theprevalence with which a constituent isused in the manufacturing of thedifferent classes of dyes and pigments atissue in the consent decree, thelikelihood that a chemical could beattributed to such production, and thefrequency with which a chemical wasdetected in wastes samples. Inconsidering if the constituents detectedare likely to be derived from dye orpigment production, we used publiclyavailable information from the ColourIndex International (3rd edition, 1996).For example, we retained any chemicalsthat were detected that are commonlyused as raw materials in the productionof the dyes and pigments at issue (e.g.,aniline is widely used in the productionof azo products; see Colour Index, vol.4, pages 4009 and 4699). We also kept

some chemicals detected that have noapparent use as raw materials, becausethey may be impurities or degradationproducts from chemicals used in themanufacturing process (e.g.,naphthalene may be an impurity in acommonly used raw material, beta-naphthol). We removed someconstituents, such as acetone andmethylene chloride, that were detectedfrequently in samples, because they arecommon laboratory contaminants and/or common solvents that have noreported use in the production of thesedyes and pigments. While suchconstituents may be present in wastes,we did not consider them furtherbecause we could not reasonablyattribute them to dye and pigmentproduction processes sampled. Wedropped other constituents that hadlittle or no reported use in the ColourIndex; the dropped constituents werealso rarely found in waste samples.

We are proposing to include theselected core chemicals in Table III–1 asconstituents of concern for defining thetwo listed wastes. This tablesummarizes the frequency with whichwe detected the chemicals in wastesamples, and prevalence of use of thechemicals in the production of the threedye and pigment classes (azo, TAM, andanthraquinone) as found in the ColourIndex. For filter aids we includedconstituents on the final list ofconstituents of concern if we detectedthe chemicals with at least a lowfrequency (i.e, in more than onesample), and we found some evidencethat industry used the chemicals in theproduction of the dyes and pigments atissue. We also selected severalchemicals that we believe may bedegradation products of other rawmaterials (e.g., p-phenylenediamine), orpossible impurities in other startingmaterials (e.g., naphthalene). Finally,we included several compounds thatmay arise from TAM production, asdescribed below, even though we do nothave analytical data showing thesechemicals are present in wastes fromthis industry. (More details of ourrationale for choosing chemicals ofconcern are given in the ListingBackground Document, Section 4).

We chose to add two chemicals forconsideration as constituents of concernthat were reported to be used in theproduction of TAM products, eventhough we did not find them in anywaste samples. In the case ofbenzaldehyde, we did not analyze anyof the wastes for this compound.However, this chemical is reported to beused in the production of TAM products(see Colour Index, vol.4, page 4727). Weanalyzed for the other chemical (the



identity is not given due to businessconfidentiality concerns), but we didnot find it in any samples. However, the3007 Survey indicated significant use ofthis chemical in the production of TAMdyes. EPA did not succeed in obtainingwaste samples during the production ofTAM dye and pigments (excluding TAMpigments using aniline as a feedstock).Therefore, based on the known uses inTAM manufacturing, we consideredthese two chemicals as potentialconstituents of concern.

In the case of TAM sludges, weconsidered proposing the same list ofcore constituents used for filter aids. Weconsidered this option primarilybecause we have no analytical data thatreflects wastes arising from TAMproduction. (We do have data for wastesfrom the production of TAM pigmentsusing aniline as a feedstock; this subsetof TAM wastes were dealt with in the1994 proposed rule and is not at issuein today’s notice. We decided topropose a list based on the constituentsthat are known to be used in themanufacturing of TAM dyes orpigments. Using public sources ofinformation (i.e., Colour Index), wewere able to identify reactants reportedin use for TAM products. Except as

noted previously, the constituentsidentified in this way are consistentwith the constituents reported in the3007 Survey. This analysis led to the listof constituents of concern for TAMsludges.

The publicly available information weused was consistent with theinformation provided by industry inresponses to the 3007 Survey, except ina few cases. In some instances (theidentities are not given due to businessconfidentiality concerns), the ColourIndex showed low to moderate use ofthe chemicals that was not confirmed inthe 3007 Survey. Conversely, in the caseof another chemical (the identity is notgiven due to business confidentialityconcerns), the 3007 Survey indicatedsignificant use in the production ofTAM dyes, while the Colour Index didnot. In cases where we had thesediscrepancies, we relied on the sourcethat showed use and assumed that thesechemicals may be used in production.

In choosing core constituents ofconcern for a concentration-basedlisting for filter aids and TAM sludges,we considered adding other constituentsshown in Table III–2. We consideredthese chemicals because they weredetected with a moderate frequency,

they had some use in manufacturing thedye and pigment products of concern, orthey are in a class of compounds thathave been historically linked to dyeproduction (benzidines). However, webelieve that these constituents areunlikely to be present in these twospecific wastes at levels of concern.Some of the chemicals in Table III–2could not be linked to the production ofthe dye and pigment classes at issue. Wedid not include chemicals in the finallist of core constituents of concernunless we could find some evidencethat the presence of a chemical wasrelated to the production of the classesof the dyes and pigments of interest (forfilter aids, the production of azo, TAM,or anthraquinone products; for TAMsludges, the production of TAMproducts, excluding TAM pigmentsusing aniline as a feedstock). This isbecause many waste samples werewastewaters or sludges collected fromcombined wastewater treatmentsystems, and such systems typicallyreceive waste streams from variousother production processes at facilities.We did not include other chemicalsbecause they were never or rarelydetected in EPA’s analysis.

TABLE III–1.—CORE CONSTITUENTS OF CONCERN IN FILTER AIDS AND TAM SLUDGES

Constituent

Core con-stituentsof con-cern for

filter aids(FA) and/or TAMsludges

(T)

Frequency of detection1 Use in production of dye and pigmentclasses2 Comments

Aniline ..................... FA High; S .............................. High use (Azo); some use in TAM pig-ment (aniline based)

Benzaldehyde ......... FA, T Not analyzed .................... Moderate use in TAM products** ......... Not analyzed, but common reactant inTAM production.

Chloroaniline, p- ..... FA Moderate, S ...................... Rare use (Azo) ..................................... Aromatic amine; possible contaminant.Cresol, p- ................ FA Moderate, S ...................... Low use (Azo) found in Colour Index;** Industry split samples did not distin-

guish meta and para isomers.Dimethoxybenzidine,

3,3′-.FA Low, S .............................. Moderate use (Azo)

Dimethylaniline,N,N-.

FA, T Rare .................................. Moderate to high use found for TAMdye production; rare use otherwise.

Rarely detected, but TAM waste notsampled and common reactant inTAM production.

Diphenylamine ........ FA, T Moderate .......................... Low use (Azo); rare use in TAMs ........ Indistinguishable from N-Nitrosodiphenylamine by EPA meth-od (GC/MS).

Diphenylhydrazine,1,2-.

FA Moderate .......................... None reported ...................................... Possible oxidation product of aniline;indistinguishable from azobenzeneby EPA method (GC/MS).

Formaldehyde ......... FA, T Moderate, S ...................... Moderate use for TAM; low use forothers

Naphthalene ........... FA Moderate/High .................. None reported ...................................... Possible impurity in common Azo rawmaterial (beta-naphthol).

Phenol ..................... FA Moderate/High, S ............. Moderate use (Azo) .............................Phenylenediamine,

p-(4-aminoaniline).FA Low/Moderate ................... Moderate use (Azo) ............................. Possible hydrolysis product of other

azo raw materials(aminoacetoacetanilide); indistin-guishable from o-isomer in EPAanalysis.



TABLE III–1.—CORE CONSTITUENTS OF CONCERN IN FILTER AIDS AND TAM SLUDGES—Continued

Constituent

Core con-stituentsof con-cern for

filter aids(FA) and/or TAMsludges

(T)

Frequency of detection1 Use in production of dye and pigmentclasses2 Comments

Toluidine, o-(2-aminotoluene).

FA, T Moderate, S ...................... Moderate use (Azo); low use (TAM) .... Hydrolysis product of raw materials(AAOT); EPA could not separate o-and p-isomers during analysis.

Toluidine, p-(4-aminotoluene).

FA, T Moderate, S ...................... Low to moderate uses (TAM andanthraquinone).

EPA could not separate o-and p-iso-mers during analysis.

(**)(**)

1 As found in EPA analysis of samples of all dye and pigment wastes from production of azo, TAM, and anthraquinone dyes/pigments and FD&C colorants; ‘‘ND’’ means not detected; ‘‘S’’ denotes reported in industry split samples.

2 From the Colour Index International, 3rd edition, 1996.**Relevant data are not included at the present time for a number of constituents due to business confidentiality concerns.

TABLE III–2.—OTHER CONSTITUENTS OF POSSIBLE CONCERN

Constituent Frequency of detection 1 Use in production of dyeand pigment classes 2 Comments

Benzene ........................................ Moderate, S ...................... None reported ................ Found in waste, but no use; common contaminantfrom many industrial processes.

Benzidine ....................................... Low ................................... No reported use domesti-cally.

Used historically (Azo), but no current domesticuse reported; only found in wastes from proc-esses that do not use filter aids.

Chlorobenzene .............................. Moderate, S ...................... None reported ................ No known use; other uses as solvent.Chloroform ..................................... Moderate, S ...................... None reported ................ No use; contaminant from treated water supplies;

other uses as solvent.Dichlorobenzene, 1,2- ................... Moderate .......................... None reported ................ No use in azo/TAM/anthraquinone production; sol-

vent uses in other dye production (Oxazinedyes).2

Phenylenediamine, o-(2-aminoaniline).

(See comments) ............... Low use (anthraquinone) EPA found analytical methods unreliable (verypoor recoveries); may be indistinguishable fromp-isomer.

Toluidine, 5-nitro-o-(2-methyl-5-ni-troaniline).

ND, S ................................ Moderate use (Azo) ........ Not detected in any EPA samples of azo wastesand reported in only 1 industry sample.

(**)

1 As found in EPA analysis of samples of all dye and pigment wastes from production of azo, TAM, and anthraquinone dyes/pigments and FD&C colorants; ‘‘ND’’ means not detected; ‘‘S’’ denotes reported in industry split samples.

2 From the Colour Index International, 3rd edition, 1996.** Relevant data are not included at the present time for a number of constituents due to business confidentiality concerns.

We believe that using analytical datafrom all dye and pigment wastessampled is clearly appropriate for filteraids. This is because filter aids are usedto treat and purify a wide variety ofwastes derived from all of the classes ofdye and pigment products (azo,triarylmethane, and anthraquinone).The shorter list for TAM sludges also isappropriate, due to the more limited setof potential waste constituents for thissingle dye and pigment class. Wecalculated concentration limits for allconstituents in Tables III–1 and III–2 forboth spent filter aids and TAM sludges,as we describe later in this notice.

We are seeking comment on whetherthe constituents of concern we selectedare appropriate for the concentration-based listings for the two wastes underconsideration. We are interested in any

information on the potential for these,or any other constituents in Table III–2,to be in these wastes at levels ofconcern. We believe that it is reasonableto select constituents that we can link tothe dye and pigment processes underevaluation. To require testing for anextensive list of constituents withoutadequate reason would lead tounnecessary analysis by industry inevaluating if their wastes meet thelisting levels. After consideringinformation provided in comments ontoday’s proposed rule, we may choose toadd potential constituents from TableIII–2, or delete proposed constituents forthe two wastes.

Analytical Issues

We found problems in our chemicalanalysis of dye and pigment waste

samples for some of the constituents inTable III–1. In a few cases, our analysescould not distinguish between twocompounds when we used the usualEPA methods for semivolatile organicchemicals, GC/MS method 8270 in TestMethods for Evaluating Solid Wastes,Physical/Chemical Methods; SW–846,hereafter called SW–846). We foundproblems for four pairs of compounds:diphenylamine/N-nitrosodiphenylamine; 1,2-diphenylhydrazine/azobenzene; o-toluidine/p-toluidine; and o-phenylenediamine/p-phenylenediamine. We propose to dealwith these problems as outlined below.

N-Nitrosodiphenylamine breaks downto diphenylamine in the method weused; therefore these two chemicalscould not be distinguished. This means



that detection by this method could bedue to either compound being in thewaste. We found no reported use of theN-nitroso-derivative, but we did finddiphenylamine has some use in theproduction of azo and TAM products.Therefore, for this pair we selecteddiphenylamine as the likely constituentof concern. This means that, if wefinalize diphenylamine as a constituentin the concentration based listings,generators would analyze for thisconstituent and assume anyconcentration measured isdiphenylamine.

Similarly, we could not distinguishthe compounds 1,2-diphenylhydrazineand azobenzene in the analyticalmethod used, because these chemicalsinterconvert readily under analyticalconditions. Thus, our data showed thatone or both of these compounds werepresent in waste samples, but we couldnot tell which one. In this case, we didnot find any reported use of eitherchemical in dye or pigment productionprocesses. However we believe that thepresence of either may be explained byoxidation of aniline from processes thatuse aniline as a reactant. Thus, in thiscase we are proposing to include theconstituent with the lowerconcentration level (1,2-diphenylhydrazine) to be protective.This means that generators wouldanalyze their waste for the total level of1,2-diphenylhydrazine/azobenzene, andassume that the amount detected is dueonly to the more toxic 1,2-diphenylhydrazine. This is alsoreasonable because these compoundsmay readily interconvert in wastes orthe environment, thus it is prudent toset the listing level for the more toxiccomponent.

In our analysis we also could notseparate two isomers of toluidine (o-toluidine and p-toluidine) andphenylenediamine (o-phenylenediamine and p-phenylenediamine). While it may bepossible to distinguish these isomersusing other analytical methods, we haveno data at this time to indicate this. Forthe toluidine isomers, we are proposingto include both isomers as constituentsof concern. If generators cannot separatethese isomers, they could determine atotal quantity for both. In the absence ofinformation on which isomer isexpected in the waste, generators wouldassume that the measured concentrationis due to the more toxic o-toluidine.Generators could use their knowledge oftheir production processes, however, todefinitively rule out the presence of oneof the isomers, and in this way identifywhich isomer is present. For example, ifgenerators know that only one isomer is

used in any of the relevant processes,they could document this and claim thisas part of their determination. Note thatthe risk-based concentration levels wepropose to set for these two chemicalsare similar (i.e, they differ by less thana factor of two for both wastes), thus thepractical distinction between theseisomers is relatively unimportant,unless generators measure them atlevels approaching the listing levels.

For the o- and p-phenylenediamineisomers, we reviewed the analytical dataand now believe that o-phenylenediamine cannot be reliablymeasured. We found that we could notreliably recover the chemical fromsamples with known concentrations(spiked samples). In addition, thereported usage of o-phenylenediaminein the production of dyes and pigmentsis relatively limited compared to the useof p-phenylenediamine (see ColourIndex, vol. 4, page 4822). Furthermore,p-phenylenediamine may also formfrom the degradation of a widely usedazo precursor, p-aminoacetoacetanilide.Therefore, because of these analyticalproblems, and also because its use indye or pigment production is limited,we are proposing not to include o-phenylenediamine in the list ofconstituents of concern for either waste.Thus, if we finalize phenylenediamineas a constituent of concern for filteraids, generators would be required onlyto determine if p-phenylenediamine ispresent in their wastes below the listinglevels.

We seek comment on these analyticalissues associated with the potentialconstituents of concern. We areespecially interested in any informationon methods that may reliably resolvethe analytical problems noted above. Wealso seek comment on the problematicchemicals we identified, and whetherEPA should adopt another approach.One approach might be to simply avoidusing any of these compounds on thelist of constituents of concern due to theanalytical problems. However, due totheir potential importance, we believe atthis time that the above approach is areasonable attempt to use thesechemicals in setting listing levels.Another approach would be to use theapproach described for the 1,2-diphenylhydrazine/azobenzene pair,i.e., if the generators cannot resolve theconstituents in the chemical analysis,they would always assume that themore toxic constituent was in factpresent. We believe this may be overlyconservative in some cases, but solicitcomment on this and other possibleapproaches.

2. Choosing the Risk AssessmentScenarios To Evaluate

For both filter aids and TAM sludges,we evaluated the scenario of disposal inunlined municipal landfills andassessed the impact of the release ofleachate from these landfills to thegroundwater. In past listings we havefound that landfill disposal ofwastewater treatment sludges andsimilar solids is quite common (e.g., seeEPA’s recent listing for petroleumrefining wastes, 63 FR 42110; August 6,1998). The updated information wecollected for both wastes showed thatsome generators sent these wastes tomunicipal landfills. In both cases, EPAchose to evaluate this scenario. Howeverdue to constraints on release ofinformation claimed as CBI, we cannotdiscuss in detail the prevalence of thisdisposal practice or the extent of otherpractices.

We used the updated 1997 wastevolumes (i.e., waste quantities) reportedby facilities in our modeling of potentialreleases from municipal landfills. In thecase of filter aids, we combined thefilter aids generated by each facility andarrayed these combined waste volumesinto a distribution that would representquantities of filter aids that go tomunicipal landfills. We then used thisdistribution of waste volumes as a keyinput parameter into our modeling.

For TAM sludges (excluding sludgesassociated with TAM pigments usinganiline as a feedstock), the updated datashowed few generators of this waste.One facility sent 57 metric tons ofsludge derived solely from theproduction of TAM dyes or pigments toa municipal landfill. This specificsludge was generated from wastewaterthat arose from the production of TAMproducts, and did not includewastewaters from other productionprocesses. We cannot discuss thevolumes or management practices of theother facilities at this time due to CBIconstraints. We used the one volumeassociated with the dedicated sludge inall modeling for TAM sludge disposal inmunicipal landfills.

Under Federal regulations, generatorsare free to send either waste to anySubtitle D municipal landfill. Weassumed that any municipal landfilldescribed in EPA’s nation-widedistribution of municipal landfills waspossible, with some geographiclimitations reflecting the locations of thedye and pigment manufacturers(described further below). Therefore, weused the distribution of data availablefor each of the parameters needed tomodel potential risk associated withdisposal of dye and pigment waste



streams in municipal landfills. Theprimary source of data from which weselected key modeling inputs (e.g.,surface area, active life, distance to well)is EPA’s 1988 National Survey of SolidWaste Municipal Landfill Facilities.These parameters are described in moredetail in the Risk AssessmentBackground Document (Section 4).

EPA has promulgated regulationsgoverning the design and operation ofmunicipal landfills (see 40 CFR Part258), and our modeling assumptionsreflected some of these requirementswhen appropriate (e.g., daily cover). Wechose to model a landfill without thefull liner system described in theregulations, because it is reasonable toassume that many landfills now and inthe future may not have synthetic liners.For example, the design criteria in258.40 apply only to new units or lateralexpansions of existing units. Existinglandfills (i.e., those in existence prior tothe effective date as defined in§ 258.1(e)) do not have to meet thedesign requirements in § 258.40 (e.g.,liner systems). Furthermore, theregulations allow exemptions from thestandards depending on the locationand size of the landfill (Section258.1(f)), and States may approvealternative designs for new units orlateral expansions based onperformance standards (§ 258.40(a)(1)).Finally, EPA is in the process ofauthorizing States to implement themunicipal landfill regulations, andStates are still working to issue permitsand bring all landfills up to theregulatory requirements. Given theexisting exemptions in the regulations,and the uncertainty in how manylandfills have liner systems, we believeit is prudent to base our modeling onlandfills without a liner.

Another reason the modeling ofunlined landfills appears prudent isbecause industrial wastes also can go tounlined landfills that do not takemunicipal waste (i.e., industrialnonhazardous waste landfills), and thuswould not be subject to those standards.We are unaware of any legalrequirement that these wastes could notgo to such non-municipal wastelandfills. Given the similarities in thedisposal practices (municipal andindustrial nonhazardous wastelandfills), we believe that an unlinedlandfill scenario is reasonable.

EPA used the approximate geographiclocations of the facilities that generatedspent filter aids and TAM sludges toestimate location parameters needed toconduct the risk assessment. We usedgeographic location to identify the soil,climate, and hydrogeologic parametersused in the fate and transport modeling.

Location related parameters required forthe risk assessment and specific inputsand data distributions used to modelrisk from these units are described indetail in the Risk AssessmentBackground Document (Section 4).

As noted above, there is uncertaintyin how many landfills that mightreceive these waste have liner systemsin place. EPA acknowledges that a linersystem would serve to contain wasteleachate, and would lessen the riskwhile such a liner system was intact.We seek comment as to whether analternative regulatory approach shouldbe taken for wastes sent to landfills withliners or certain environmental controls.

3. The Receptors and ExposurePathways Evaluated

The primary receptors we consideredin this analysis are adults and childrenexposed via ingestion (i.e., drinkingwater) and noningestion (e.g.showering) exposure pathways to waterfrom groundwater wells contaminatedby the leachate from the municipallandfill receiving filter aid or TAMsludge wastes. We considered onlyreceptors with residential drinkingwater wells for the groundwaterpathway. We assumed all communitywells and other municipal watersupplies are treated and, therefore,would not be contaminated withconstituents from the wastes of concern.

We also evaluated receptors fromnongroundwater pathways in oursensitivity analysis. We assumed thereceptors for these pathways werefarmers and their children who live inclose proximity to the municipallandfill. We chose these receptorsbecause their exposure results in thehighest potential risk fornongroundwater pathways, which wasappropriate for the initial sensitivity orscreening analysis. Nongroundwaterexposure pathways for filter aids andTAM sludges disposed in municipallandfills result from the emission ofvapors from these landfilled wastes. Weevaluated exposure from both direct andindirect nongroundwater pathways. Thedirect pathway consists of dispersal ofvapors from the landfill through the airpathway directly to the receptor via theinhalation. Indirect pathways includedeposition to soil, transfer to fruits,vegetables, grain, and forage (air-to-plant transfer and soil-to-plant transfer),and uptake by grazing animals. Theplant and animal products are thenconsumed by the farm family.

E. How Did EPA Estimate ExposureConcentrations?

1. Risk Assessment MethodsTo calculate listing levels for

constituents of concern, we needed todetermine what concentrations at thepoint of exposure would be associatedwith levels in the wastes. We conductedthe risk assessment in three stages: (1)the sensitivity analysis, (2) thedeterministic analysis, and (3) theprobabilistic analysis for thegroundwater pathways. For thenongroundwater pathways, the Agencyused results from the sensitivityanalysis to screen out nongroundwaterrisks, because they were not significantrelative to potential groundwater risksassociated with disposal of wastes inlandfills.

a. Sensitivity Analysis. The purpose ofour sensitivity analysis was to identifythe most sensitive or risk-drivingparameters in the risk assessment modeland to determine high-end and centraltendency values for subsequent use inthe deterministic analysis. A high-endparameter corresponds to its 90th or10th percentile value depending onwhether a high or low value of thatparameter results in a higher predictedrisk. We conducted the sensitivityanalysis by varying each parameter orset of linked parameters to high endsone at a time, while holding all othervariables in the analysis at centraltendency. We then compared the riskresults using a single high-endparameter to the results obtained whenall values are set at central tendency.Using this method, we identified thetwo most sensitive high end parametersthat resulted in the highest risks. Wethen set these parameters to their high-end values in the subsequentdeterministic analysis. For thegroundwater pathway, we used thesensitivity analysis to identify high-endparameters for use in the deterministicassessment of risk from groundwater.

For the nongroundwater pathway, wewere able to use the results from thesensitivity analysis as a screening levelanalysis of nongroundwater risks.Originally, we intended to use thenongroundwater sensitivity analysis toidentify the most sensitive parametersfor use in a deterministic analysis ofnongroundwater risks from the dye andpigment waste streams. However, wewere able to use the results of thenongroundwater sensitivity analysis toscreen out or eliminate nongroundwaterrisks as a primary concern for dye andpigment industry wastes. We screenedout nongroundwater risks by comparingthe results of the nongroundwatersensitivity analysis to the results of the



groundwater sensitivity analysis, whichwe performed using the same inputs forcommon parameters. In all cases, thegroundwater risk analysis producedhigher risk estimates for all constituents.Since the purpose of this analysis wasto set risk-based concentration limits,we focused our analysis on the pathwayof most concern (i.e., highest risk) todetermine protective concentrations.Because the groundwater pathwaypresented the highest risk, we onlyevaluated the groundwater pathwayfurther using deterministic and MonteCarlo analyses. In other words, risk-based concentrations set based ongroundwater pathway risks will also beprotective of nongroundwater pathwayrisks. Based on this finding, no furthermodeling of nongroundwater risks wasconducted. The Risk AssessmentBackground Document describes thesensitivity analysis for bothgroundwater and nongroundwaterpathways and presents the results inAppendices A and H.

b. Deterministic Analysis. The‘‘deterministic’’ method uses singlevalues for input parameters in themodels to produce a point estimate ofrisk or hazard. For this analysis, weused a double high-end risk assessment.In this method, we set the twoparameters identified to be mostsensitive at their high-end values and allother parameters are set at centraltendency. A central tendency riskestimate is the point estimate in whichall variables are set at central tendencyvalues. We presume the high-end riskestimate to be a plausible estimate ofindividual risk for those persons at theupper end of the risk distribution. Byusing these descriptors we intend toconvey estimates of exposure in theupper end of the distribution (i.e., abovethe 90th percentile), while avoidingestimates that are beyond the truedistribution. (See the EPA guidancememo entitled, Guidance on RiskCharacterization for Risk Managers,1992; hereafter known as the Habichtmemo, 1992). We applied thedeterministic methodology to assessgroundwater pathway risks fromdisposal of spent filter aid and TAMsludges in municipal landfills. Theparameters that we found to be the twokey high-end parameters variedsomewhat by chemical and waste.However, these parameters were somecombination of waste quantity, welllocation, and duration of exposure.

c. Probabilistic Analysis (Monte CarloMethod). In the probabilistic analysis,we vary sensitive parameters for whichdistributions of data are available.Parameters varied for this analysisinclude waste volumes, landfill size,

parameters related to the location of thelandfill such as climate andhydrogeologic data, location of thereceptor, and exposure factors (e.g.,drinking water ingestion rates). Theprobabilistic analysis is conductedusing a Monte Carlo methodology.Monte Carlo analysis provides a meansof quantifying some variability anduncertainty in risk assessments by usingdistributions that describe the full rangeof values that the various inputparameters may have. Some of theparameters in the probabilistic analysisare set as constant values because (1)there are insufficient data to develop adistribution, (2) simplifyingassumptions are made, (3) site specificconstants are available, or (4) theanalysis has not been shown to besensitive to the values of the parameter,that is, even if the parameter is varied,the risk results do not vary significantly.

Monte Carlo simulation is a statisticaltechnique that calculates an individualrisk value or hazard quotient for eachcategory of parameters that affect ordetermine risk. For each calculation, theMonte Carlo simulation uses parametervalues that are randomly selected fromthe distribution of values available foreach parameter. The range of valuesselected for the input parametersreflects the distribution of valuescorresponding to each input parameter.The repetitive calculations take manyrandomly selected combinations ofinput parameters to generate a range ofrisk results. Based on the distribution ofthe output, we can determine a risk orhazard level representing the high end(e.g., 90th or 95th percentile) or centraltendency (i.e., 50th percentile).Although the simulation is internallycomplex, commercial software performsthe calculations as a single operation,presenting a distribution of risk results.From these results, we can determinethe percentile distribution of exposurepoint concentrations and risks for theselected risk assessment scenario. Weassessed potential groundwater pathwayrisks from disposal of filter aid andTAM wastes in municipal landfillsusing the probabilistic risk assessmentmethod.

Monte Carlo simulation can be usedto simulate the effects of naturalvariability and informationaluncertainty that often accompany manyactual environmental conditions.Further, information on the range andlikelihood of possible values for theseparameters is produced using thistechnique. When compared withalternative approaches for assessingparameter uncertainty or variability, theMonte Carlo technique has theadvantages of very general applicability,

no inherent restrictions on inputdistributions or input-outputrelationships, and relativelystraightforward computations. Also,Monte Carlo application results can beused to satisfactorily calculateuncertainty, and to quantify the degreeof conservatism used. Withdeterministic analyses, an alternative toMonte Carlo, it is often not possible toquantify the level of protectionrepresented by the results. However,some potential limitations may existwhen applying Monte Carlo techniquesin modeling efforts. Variability (inherentvariation in a measure over time andspace) and uncertainty (lack ofknowledge) are often difficult todistinguish within applications. Also,one must account for correlationsamong the various data parameters toavoid distorting results. As explained inSection III.H, we relied on the MonteCarlo approach to set listing levels fortoday’s proposal.

2. Fate and Transport ModelingThe risk analysis employs several key

fate and transport models. The modelsinclude a landfill partitioning modelbased upon the equations presented ina series of articles by Jury et al. We usedthis model to estimate the concentrationof leachate from the landfill and theemission rate for volatile constituentsfrom the landfill. We applied EPA’sIndustrial Source Complex Short Term,version 3 (ISCST3) to estimate thedispersion and deposition of vaporsemitted from the municipal landfill. Forestimating the concentration ofconstituents of concern at theresidential drinking water well, we usedthe groundwater model EPACMTP orEPA’s Composite Model for LeachateMigration with TransformationProducts. Further details and referencesfor these models are presented in theRisk Assessment Background Document(Section 5.2.2).

a. Landfill Partitioning Model. Weused the Jury equations to estimate fateand transport of constituents in thenongroundwater pathways from thelandfill to the receptor and to estimateleachate from the landfill. Using amodel based on the Jury equations, weprojected the contaminant loss from alandfill due to volatilization, run-off,degradation, and leaching. The Juryequations partition the waste in thelandfill to waste, air, and pore water andcalculate potential losses from leaching,volatilization, and degradation. Thelandfill partitioning model evaluatescontaminant losses over both the activewaste disposal period and after thelandfill is closed. We used the landfillpartitioning model to conduct the



sensitivity, deterministic, and MonteCarlo analyses.

b. Air Model. We used the ISCST3 airdispersion and deposition model toestimate the vapor air concentrationsand deposition rates needed to developrelative risk estimates associated withvapor air emissions from the municipallandfill. We estimated air pathway risksusing emissions estimates from thelandfill partitioning model as inputs tothe ISCST3 air model, and using ISCST3to estimate the air concentration anddeposition of vapor for each constituentat receptor locations. This modelingstep was only needed for the sensitivityanalysis to estimate risks from non-groundwater pathways.

c. Groundwater Model. We used theEPACMTP groundwater model toestimate the concentration ofconstituents of concern at theresidential drinking water well. Weconducted the groundwater modelingusing six surrogate compounds torepresent the movement of allconstituents of concern through thegroundwater pathway. Identification ofsurrogate compounds provides a meansof minimizing the modeling runsrequired to model the large number ofconstituents evaluated for thisassessment. For this assessment, organicconstituents are grouped into sixcategories based on like chemical andphysical properties. Sorption potentialand hydrolysis rate are the keyparameters used to group constituents;however, for the constituents of concernin today’s proposed rule, hydrolysis wasnot important. Therefore, the onlyconstituent-specific parameter ofimportance for transport of the organiccompounds of interest was the sorptionpotential (i.e., the organic carbonpartition coefficient, Koc; this is ameasure of the tendency for a chemicalto adsorb to organic material in soils).For computational efficiency, we onlymodeled the surrogate constituent ineach category, and then applied themodeling results for the surrogate toeach constituent in the category. Wefound that the dilution and attenuationof the constituents we evaluated did notvary significantly (i.e., less that a factorof 2), even with larger differences in Koc.Thus, the use of surrogates did notintroduce any appreciable uncertaintyinto the final results. See Appendix C ofthe Risk Assessment BackgroundDocument for details of the designationof constituent categories andidentification of surrogate compounds.

We used the EPACMPT model toconduct the sensitivity analysis,deterministic analysis, and Monte Carloanalysis for the groundwater pathway.The groundwater pathway modeling

yields the groundwater exposureconcentrations resulting from therelease of waste constituents from thelandfill. Precipitation that percolatesthrough the waste unit generatesleachate, which can infiltrate from thebottom of the landfill into thesubsurface. The waste constituentsdissolved in the leachate (as predictedby the partitioning model) are thentransported via aqueous phase migrationthrough the vadose zone to theunderlying saturated zone and thendown gradient to a ground waterreceptor well. We project theconcentration at the intake point of ahypothetical groundwater drinkingwater well or receptor well, located ata specified distance from the downgradient edge of the waste managementunit.

We located the residential wells downgradient from the landfill and within thetop ten meters of a plume ofgroundwater contaminated by theleachate from the municipal landfill. Asnoted previously, we used distances ofreceptor wells from waste managementunits from EPA’s National Survey ofMunicipal Landfills. The distance fromthe landfill to the receptor well, and thelocation of the well in relation to theplume of contaminated groundwater,are important parameters in thegroundwater model. This is because theprojected concentrations of constituentsat the well, and the corresponding risks,increase as the well location is movedcloser to the source within the plume.

For the Monte Carlo analysis, weplaced the receptor well downgradientfrom the waste management unit at aradial distance of up to 1,610 m; thedistance for each simulation was takenfrom the distribution of distancesgathered by EPA in its survey notedabove. We assumed the lateral locationof the well to be randomly distributedwithin the estimated lateral extent of theplume. For the deterministic analysis,the downgradient receptor well locationwas fixed within the lateral extent of theplume (most often at the high end valueof 102 meters from the landfill).

The objective of this ground-watermodeling was to compute the amount ofdilution and attenuation a contaminantmay undergo as it migrates from alandfill to a ground-water well. Theamount of dilution and attenuation isexpressed as a dilution/attenuationfactor (DAF), which represents the ratioof the initial leachate concentrationleaving the landfill to the ground-waterreceptor well concentration. The high-end DAFs for the different constituentsdid not vary much for the two wastes,i.e., the DAFs were in the range of 3 to5.

The groundwater model accounts forthe following processes affectingcontaminant fate and transport:advection, hydrodynamic dispersion,linear or nonlinear equilibriumsorption, chained first-order decayreactions, and dilution from recharge inthe saturated zone. EPACMTP was runin both deterministic mode and MonteCarlo mode. In the deterministic mode,we set the two most sensitive variablesto their high end values, while keepingall other parameters set at centraltendency. In the probabilistic MonteCarlo mode, the model randomlyselected parameter values from theirrespective statistical distributions. TheMonte Carlo procedure allowsassessment of the uncertainty associatedwith ground-water well concentrationsthat result from uncertainty andvariability in climatic andhydrogeologic characteristics of wastemanagement units across the range oflocations associated with the Dyes andPigments industry.

F. What Exposure Assumptions andToxicity Levels Did EPA Use?

We used values from EPA’s ExposureFactors Handbook (EPA, 1997) to set theexposure assumptions for this analysis.We applied the recommended values forthe central tendency and high endintake rates in the deterministicanalysis, and we used a distribution ofvalues developed from the datapresented in the Exposure FactorsHandbook in the Monte Carlo analysis.Section 6.0 of the Risk AssessmentBackground Document discusses thesevalues in detail.

The health benchmark data used inthe analysis are based upon the valuespresented in the Integrated RiskInformation System (IRIS) onlinedatabase of verified health benchmarksor in the Health Effects AssessmentSummary Tables (HEAST) document.Appendix E of the Risk AssessmentBackground Document containstoxicological profiles used in ouranalysis. The studies used as the basisfor these benchmarks have beenreviewed and summaries of thesestudies, along with references to thecomplete studies, are presented inAppendix E of the Risk AssessmentBackground Document.

G. What Uncertainties Are AssociatedWith The Risk Assessment?

Uncertainty is inherent in the riskassessment process. It occurs becausethe risk assessment process is complex,and variability is inherent in theenvironment. We may classify thesources of uncertainty as parameteruncertainty and variability, exposure



scenario uncertainty, and modeluncertainty. Parameter uncertaintyoccurs when parameters appearing inequations cannot be measured preciselyand/or accurately. Variability refers tothe normal variations in physical andbiological processes that we cannotreduce with additional data. We haveaddressed variability in this riskassessment by using a probabilisticanalysis. Exposure scenario uncertaintyoccurs because of the inability tomeasure exposure of receptors toconstituents of concern. Modeluncertainty is associated with allmodels used in risk assessment andoccurs because computer modelsrequire simplifications of reality, andthus exclude some variables andinteractions that influence fate andtransport but cannot be included inmodels due to complexity or lack ofdata. We discuss each of these issues indetail in Section 8 of the RiskAssessment Background Document.

One important area of uncertainty thatwe believe should be noted is theuncertainty involving estimates of risksto children from carcinogeniccompounds. We used the same overallapproach for estimating cancer risks inboth adults and children from the dyeand pigment waste streams evaluated.We modified the exposure factors forchildren to account for differencesbetween adult and child receptors (e.g.,body weight, exposure duration).However, we recognize that significantuncertainties and unknowns existregarding the estimation of lifetimecancer risks in children. Methodologiesfor estimating environmental threats tochildren’s health are relatively new.They are currently being debated withinthe scientific community, and willcontinue to evolve. The analysis ofcancer risks in children undertaken forthis assessment has not been externallypeer reviewed.

H. What Risk Level Do theConcentration Levels Represent?

In calculating concentration limits forthe two wastes, we assumed theresidential drinking water wellconcentration is equal to EPAestablished protective or health-basedlevel for each constituent for the mostsensitive receptor (adult or child).Protective concentrations are those atwhich adverse health effects from anysingle constituent present incontaminated drinking water and/orwater used for bathing or showering donot exceed a one in 100,000 (1 ×10¥5)individual lifetime cancer risk or a non-cancer hazard quotient of 1 (where thehazard quotient is the ratio of theconcentration in the water to the

concentration at which no non-cancereffects are expected). The use of theserisk levels is consistent with the initialcancer-risk and HQ ‘‘levels of concern’’that we described in the discussion onEPA’s hazardous waste listing policy inthe 1994 proposed rule for dye pigmentwastes (see 59 FR 66075). As notedpreviously, we based the concentrationson the groundwater pathway, which isthe pathway of most concern for allconstituents of concern for this industrywhen disposed in municipal landfills.Section 5 of the Risk AssessmentBackground Document provides themethodology we used to derive risklimiting waste concentrations in greaterdetail.

I. What Are the Proposed Listing Levels?Table III–3 presents the risk-based

concentration levels for all potentialconstituents of concern calculated forboth spent Filter Aids and TAM sludgesbased on our risk assessment. Theselevels represent protectiveconcentrations for constituents that maybe present in the wastes, and are basedon the receptor that yielded the lowestallowable waste concentration (i.e, adultor child). Using the partitioning modeldescribed above, we calculatedprotective levels for constituents in boththe waste itself and for leachate that isreleased from the landfill. We areproposing to set the concentration levelsin the listing at the levels calculated forthe constituents in the two wastes. Ifyou generate either waste underconsideration, your wasteconcentrations would have to be belowthese levels, or else your waste will bea listed hazardous waste. Therefore,under this proposal, you would beassessing constituent concentrations inthe waste itself.

1. Selection of Listing Levels in WastesVersus Leachate

We considered using the landfillleachate levels in Table III–2 instead ofthe waste levels to define the listedwaste. We could do this if we requiregenerators to evaluate their wastes usinga test designed to predict leaching fromlandfills. The Toxicity CharacteristicLeaching Procedure (TCLP) is onepossible method available. The ToxicityCharacteristic (TC) regulation uses theTCLP to decide whether wastes arehazardous under this characteristic (see40 CFR 261.24). However, we decidednot to use the TCLP approach for severalreasons. First, we did not perform TCLPanalysis for these constituents in any ofthe dye and pigment wastes examined.Thus, we are uncertain how the methodmight perform for the wastes at issue.The partitioning model also factors in

the placement of the wastes into thelandfill and provides a leaching rate thatreflects how the volumes of wastes areassumed to be disposed over time. TheTCLP approach is appropriate fordefining levels of concern under the TCfor all wastes on a nationwide basis,where we have no specific informationon waste quantities disposed. In today’sproposed rule we have information onthe specific quantities of the twoselected wastes in the dyes andpigments industries. Finally, we believethat the analysis of the waste itself ismore straightforward to implement, andwould not require measuring levels in aderived leachate that are much lowerthan those in the waste. Therefore, wechose to propose the concentrationbased levels for the waste itself.

However, the TCLP does represent anactual measurement of leach potentialas opposed to a value generated by amodel. Thus, the Agency may stillconsider a final regulation based on theTCLP, depending on comments receivedand additional information provided.

2. Selection of Probabilistic VersusDeterministic Modeling Results

The constituent concentrations inTable III–3 reflect the results of theprobabilistic modeling assessment. Wechose to use the probabilistic results,rather than rely on the deterministicresults. While the Agency has used theresults of deterministic analyses for pastlisting decisions, EPA has more recentlyused Monte Carlo analyses foradditional verification (see PetroleumListing final rule, 63 FR 42110; August6, 1998). As we have developed andrefined the Monte Carlo approach, webelieve it provides some distinctadvantages. As noted earlier, whencompared with alternative approachesfor assessing parameter uncertainty orvariability, the probabilistic techniquehas the advantages of generalapplicability and no inherentrestrictions on input distributions orinput-output relationships.

An additional factor the Agencyconsidered was the highly variablenature of the data available. Theconstituents of concern, theirconcentrations, and waste volumes canbe highly variable across the differentindustry processes, a factor which madethe Agency reluctant to rely on selectedpoint estimates for its assessment. Alsoof particular concern was the difficultywe found in choosing what set ofparameters would truly represent a‘‘high-end’’ analysis for multiplepathways, constituents, and locations.The issues associated with choosinghigh-end parameters are discussed inthe Risk Assessment Background



Document, which presents thedeterministic as well as the probabilisticresults.

The probabilistic simulations used inthis proposed rulemaking assessed thefull distributions of critical input data(e.g., distance to well, waste volumes,landfill area) to randomly generatereceptor well concentrations of keyconstituents for certain landfillsituations, and then combined theresults from many runs to produce aprobability distribution of risks. Wewere then able to choose points alongthe probability distribution of risk forcomparison to the high-end analysis.For example, a risk that corresponds tothe 90th percentile for a specific wasteconstituent in a landfill means that therisk would be below this level in 90percent of the runs.

The concentration levels in Table III–3 represent the probabilistic modelingresults at the 90th percentile. Asdiscussed previously, we are attemptingto calculate estimates of exposure in theupper end of the distribution (i.e., abovethe 90th percentile), while avoidingestimates that are beyond the truedistribution. (See Habicht memo, 1992.)The Agency’s policies do not indicate

that there is any particular point on aMonte Carlo distribution that should bethe point at which the Agency regulatesor does not regulate. This conceptualrange is not meant to precisely definethe limits of this descriptor, but shouldbe used by the assessor as a target rangefor characterizing ‘‘high-end risk.’’Therefore, a high-end estimate that fallswithin the range (above the 90thpercentile but still realistically on thedistribution) is a reasonable basis for adecision.

We believe that the 90th percentilelevels calculated for the wasteconcentrations in today’s proposed ruleare protective. For filter aids, the high-end deterministic results gaveconcentrations that were somewhathigher than the 90th percentile levelsfrom the probabilistic analysis (by afactor of 2–4 fold). Therefore, we believethat using the 90th percentile values (asopposed to higher percentile values)provides results that are more consistentwith previous listing determinationsbased on high-end deterministicassessments. For TAM sludges, the 90thpercentile probabilistic levels are alsoclose to the deterministic results,

although for this waste the probabilisticlevels for most constituents are slightlyabove the deterministic values(approximately two-fold). Thus, the90th percentile results appear to agreereasonably well overall with thedeterministic results. Furthermore, theprobabilistic DAFs predicted fortransport of landfill leachate from thelandfill to the receptor well werealready quite low at the 90th percentile(i.e., 2–5), also suggesting that the 90thpercentile is adequately protective.

We are soliciting comments on boththe use of the probabilistic modelingresults, rather than the deterministicanalyses, and also our use of the 90thpercentile risk level, rather than anyother level. For example, the 95thpercentile probabilistic results yieldsconcentrations that are about two-foldlower. Details of the deterministicmodeling results, and levels calculatedusing other percentiles from theprobabilistic analysis, are given in theRisk Assessment Background Document(Appendix F). We also seek comment onthe setting of the regulatory levels forthe waste itself, rather than the optionof using the TCLP values.

TABLE III–3.—CALCULATED RISK-BASED CONCENTRATION LEVELS FOR POSSIBLE CONSTITUENTS OF CONCERN FOR DYEAND PIGMENT WASTES1

Constituents

Concentration levels for filteraids **

Concentration levels for TAMsludges

Waste (mg/kg) Leachate (mg/ml) Waste (mg/kg) Leachate (mg/

ml)

Aniline ............................................................................................................ ........................ ........................ 17 0.03Benzaldehyde ................................................................................................ ........................ ........................ 5000 5.6Benzene ......................................................................................................... ........................ ........................ 370 0.11Benzidine ....................................................................................................... ........................ ........................ 0.027 0.000023Chloroaniline, p- ............................................................................................. ........................ ........................ 250 0.25Chlorobenzene ............................................................................................... ........................ ........................ 36 0.0036Chloroform ..................................................................................................... ........................ ........................ 100 0.042Cresol, p- ....................................................................................................... ........................ ........................ 330 0.33Dichlorobenzene, 1,2– ................................................................................... ........................ ........................ 1100 0.043Dimethoxybenzidine, 3,3’- ............................................................................. ........................ ........................ 520 0.38Dimethylaniline, N,N- ..................................................................................... ........................ ........................ 300 0.11Diphenylamine ............................................................................................... ........................ ........................ 27,000 1.1N-Nitrosodiphenylamine ................................................................................. ........................ ........................ 7,400 0.62Diphenylhydrazine, 1,2- ................................................................................. ........................ ........................ 31 0.0042Azobenzene ................................................................................................... ........................ ........................ 720 0.013Formaldehyde ................................................................................................ ........................ ........................ 7000 11Naphthalene ................................................................................................... ........................ ........................ 17 0.0028Phenol ............................................................................................................ ........................ ........................ 28,000 34Phenylenediamine, o-(2-aminoaniline) .......................................................... ........................ ........................ 61 0.11Phenylenediamine, p-(4-aminoaniline) .......................................................... ........................ ........................ 5,000 10Toluidine, o-(2-aminotoluene) ........................................................................ ........................ ........................ 13 0.022Toluidine, p-(4-aminotoluene) ........................................................................ ........................ ........................ 23 0.029Toluidine, 5-nitro-o-(2-Methyl-5-nitroaniline) .................................................. ........................ ........................ 220 0.15(**)

1 Levels represent the 90th percentile risk derived from the probabilistic analysis.** Relevant data are not included at the present time for a number of constituents due to business confidentiality concerns.



IV. Proposed Listing Determinationsand Regulations

A. What Are the Proposed Regulationsfor the Two Wastes?

We are proposing that, if you generateeither of the two categories of dye andpigment wastes at issue, you must eitherdetermine whether or not your waste isa listed hazardous waste within aspecified time, or assume that it ishazardous as generated. Your wastewould become a listed hazardous wasteif it contains any of the constituents ofconcern at a concentration equal to orgreater than the hazardousconcentration identified for thatconstituent. You must make adetermination that all of theconstituents of concern in your wasteare below the hazardous concentrationsto claim that your wastes remainnonhazardous. We are proposing thefollowing specific regulatory languagefor the two wastes:

K167 Spent filter aids, diatomaceousearth, or adsorbents used in the productionof azo, anthraquinone, or triarylmethanedyes, pigments, or FD&C colorants, unlessthese wastes do not contain any of theconstituents identified in § 261.32(b)(3)(iii) ata concentration equal to or greater than thehazardous level set for that constituent asdemonstrated by the procedures specified in§ 261.32(b).

K168 Wastewater treatment sludges fromthe production of triarylmethane dyes andpigments (excluding triarylmethane pigmentsusing aniline as a feedstock), unless thesewastes do not contain any of the constituentsidentified in § 261.32(b)(3)(iii) at aconcentration equal to or greater than thehazardous level set for that constituent asdemonstrated by the procedures specified in§ 261.32(b).

The constituents and levels in theselisting descriptions would be thosegiven in Tables IV–1 for Filter Aids andTable IV–2 for TAM sludges. Section Vdescribes the steps you must follow toimplement the concentration-basedlisting.

We solicit comment on the proposedlist of constituents and their levels.Specifically, based on the rather highlevels set for some constituents (e.g.,diphenylamine, formaldehyde for TAMsludges), EPA is considering removingthese. These levels may be unlikely inthese wastes, and may not meritanalysis. We seek any information thatmay assist us in deciding on whether weshould retain all of these constituents.We also solicit comment as to whetherany other constituents (e.g., any othersin Table III–3) should be added to theregulatory lists in Tables IV–1 or IV–2.

TABLE IV–1.—CONCENTRATIONLEVELS FOR SPENT FILTER AIDS

ConstituentsConcentra-tion levels(mg/kg)**

AnilineBenzaldehydeChloroaniline, p-Cresol, p-Dimethylaniline, N,N-Dimethoxybenzidine, 3,3′-DiphenylamineDiphenylhydrazine, 1,2-FormaldehydeNaphthalenePhenolPhenylenediamine, p-Toluidine, o-Toluidine, p-(**)(**)

** Relevant data are not included at thepresent time due to business confidentialityconcerns.

TABLE IV–2.—CONCENTRATIONLEVELS FOR TAM SLUDGES

ConstituentConcentra-tion levels(mg/kg)

Benzaldehyde ........................... 5000Dimethylamine, N,N- ................ 300Diphenylamine .......................... 27,000Formaldehyde ........................... 7000Toluidine, o- .............................. 13Toluidine, p- .............................. 23(**) (** )

**Relevant data are not included at thepresent time due to business confidentialityconcerns.

As required under § 261.30(b), we areadding those constituents that are thebases for listings to Appendix VII of Part261, ‘‘Basis for Listing HazardousWaste.’’ Thus, we are proposing to addthe constituents in Table IV–1 for K167(filter aids), and the constituents inTable IV–2 for K168 (TAM sludges) toAppendix VII. In addition, severalconstituents in Tables IV–1 and IV–2 arenot currently listed on Appendix VIII toPart 261, ‘‘Hazardous Constituents.’’EPA places constituents on AppendixVIII if they have been shown inscientific studies to have toxic,carcinogenic, mutagenic, or teratogeniceffects on humans or other life forms(see 261.11(a)(3)). The Risk AssessmentBackground Document contains thedetailed toxicological data for allconstituents we evaluated, including thespecific chemicals that we are proposingto add to Appendix VIII in today’s rule:benzaldehyde, N,N-dimethylaniline, p-cresol, and p-phenylenediamine, andanother chemical, the identity of whichis not given due to business

confidentiality concerns. While cresoland phenylenediamine are currentlylisted on Appendix VIII, the preciseisomers are not specified. Therefore, weare proposing to add these specificisomers. If, in response to comment, wedecide to add any additionalconstituents to the chemicals of concernin either concentration-based listing,then we would also add thoseconstituents to Appendix VII, and toAppendix VIII, if necessary.

In proposing to promulgate aconcentration-based listing for filter aidsand TAM sludges under 40 CFR261.11(a)(3), we considered the factorsgiven under 40 CFR 261.11(a)(3) andbelieve that these wastes pose asubstantial present or potential hazardto human health or the environment atthe proposed listing levels. Weconsidered nearly all of these factors aspart of the risk assessment described intoday’s rule. Specifically, we consideredthe constituents’ toxicity/concentration,mobility, persistence, andbioaccumulation potential in setting theconcentration-based levels(corresponding to factors (I) through (vi)given in § 261.11(a)(3)). As described inthe risk assessment section, weconsidered municipal landfills as the‘‘plausible’’ management practice (factor(vii)), and evaluated the waste quantitiesgenerated by facilities (factor viii).Concerning factor (ix), we examineddamage cases for the dye and pigmentindustries for the 1994 proposed rule(see Risk Assessment Support for Dyeand Pigment Listing Determination,November 29 1994; document numberS0333, EPA Docket No. F–94–DPLP–FFFFF). However none of those casesprovide any information on the possibledamages associated with the two wastesat issue in today’s proposal. Finally, weconsidered other regulatory programs(factor (x)), when appropriate. No otherregulatory program EPA identifiedadequately addressed the risks posed bythe wastes. However, as noted inSection IV.C, we considered theprotection afforded by the Clean WaterAct, and the regulations beingconsidered for leachate from landfills.As a result of this consideration, we areproposing to temporarily defer anyregulation of landfill leachate that maybe derived from the wastes proposed forlisting, provided certain conditions aremet.

B. What Are We Proposing forAnthraquinone Sludges?

We are proposing not to listwastewater treatment sludges from theproduction of anthraquinone dyes andpigments. As described earlier in thisnotice, the only constituents that were



found in wastes that could be attributedto anthraquinone production ( theidentities are not given due to businessconfidentiality concerns) do not havehealth-based benchmarks. We did notreceive any data in comments on the1994 proposed rule that would allow usto estimate such benchmarks.

Discussion of the details of wastegeneration and management for thiswaste cannot be released at this timedue to business confidentialityconcerns.

Therefore, we are proposing not to listanthraquinone sludges because wecannot identify any health threat fromthese wastes. Further discussion on thegeneration of this waste cannot bereleased at this time due to CBIconstraints. We do not find anydemonstrated risk from the constituentsthat we can attribute to anthraquinoneproduction. We seek comment on thisdecision not to list this waste.

C. What Is the Status of LandfillLeachate From Previously DisposedWastes?

Leachate derived from the treatment,storage, or disposal of listed hazardouswastes is classified as a hazardous wasteby virtue of the ‘‘derived-from’’ rule in40 CFR 261.3(c)(2). The Agency hasbeen clear in the past that hazardouswaste listings apply to wastes disposedof prior to the effective date of a listing,even if the landfill ceases disposal of thewaste when the waste becomeshazardous (see 53 FR 31147; August 17,1988). We also have a well-establishedinterpretation that listings likewiseapply to leachate derived from thedisposal of listed hazardous wastes,including leachate derived from wastesdisposed before a listing effective datewhich meet the listing description. Weare not reopening any of these issues bythe present notice.

Of course, as set out in detail in theAugust 1988 notice, this does not meanthat landfills holding wastes which aresubsequently listed as hazardousbecome subject to Subtitle C regulation.However, previously disposed wastesnow meeting a listing description,including residues such as leachatewhich are derived from such wastes,which are ‘‘actively managed’’ dobecome subject to Subtitle C regulation(id.). In many, indeed mostcircumstances, active management ofleachate would be exempt from SubtitleC regulation because the usualmanagement practice is discharge eitherto POTWs via the sewer system, whereleachate mixes with domestic sewageand is excluded from RCRA jurisdiction(see RCRA Section 1004(27) and 40 CFR261.4(a)(1)), or to navigable waters, also

excluded from RCRA jurisdiction (seeRCRA Section 1004(27) and 40 CFR261.4(a)(2)). In addition, management ofleachate in wastewater treatment tanksprior to discharge under the CWA isalso exempt from RCRA regulation (40CFR 264.1(g)(6)).

However, we believe, because theproposed listings for the two categoriesof dye and pigment wastes (K167–K168)are concentration-based listings, itwould be difficult to know whether thepreviously disposed wastes that meetthe narrative description of K167–K168are in fact K167–K168 hazardous wastesthat exceed the listing levels. We don’tanticipate that records documenting theconcentrations of proposed constituentsof concern for these wastes exist forpreviously disposed wastes. Therefore,absent a finding that the wastes, whendisposed, would have met the listingbeing proposed today, the previouslydisposed wastes (including landfillleachate and gas condensate derivedfrom these wastes that are activelymanaged) could not be classified asK167–K168.

However, if actively managed landfillleachate and gas condensate derivedfrom the two categories of dye andpigment wastes proposed to be listed intoday’s rule could be classified as K167–K168, we are concerned about thepotential disruption in current leachatemanagement that could occur and thepossibility for redundant regulation.Recently, this issue was raised to theAgency in the context of the petroleumrefinery waste listings (see 63 FR 42173;August 6, 1998). A commenterexpressed concern that, because some oftheir nonhazardous waste landfillsreceived petroleum wastes which arenow listed, the leachate that is collectedand managed from these landfills wouldbe classified as hazardous. Thecommenter argued that this could leadto increased treatment and disposalcosts without necessarily anyenvironmental benefit. After examiningand seeking comment on this issue, wepublished a final rule that temporarilydefers regulation of landfill leachate andgas condensate derived from certainlisted petroleum refining wastes (K169–K172) that were disposed before, but notafter, the new listings became effective,provided certain conditions are met (see64 FR 6806; February 11, 1999).

At the time this issue was brought tothe Agency’s attention in the context ofthe petroleum refinery waste listings,EPA’s Office of Water had recentlyproposed national effluent limitationsguidelines and pretreatment standardsfor wastewater discharges—mostnotably, leachate—from certain types oflandfills (see 63 FR 6426; February 6,

1998). In support of this proposal, EPAconducted a study of the volume andchemical composition of wastewatersgenerated by both Subtitle C (hazardouswaste) and Subtitle D (nonhazardouswaste) landfills, including treatmenttechnologies and management practicescurrently in use. EPA proposed effluentlimitations (for nine pollutants in theNonhazardous Subcategory) for directdischargers (see 63 FR 6463). Mostpertinent to finalizing the temporarydeferral for the petroleum refiningwastes, EPA did not proposepretreatment standards for Subtitle Dlandfill wastewaters sent to POTWsbecause the Agency’s informationindicated that such standards were notrequired.

The conditions included in thetemporary deferral published onFebruary 11, 1999 are that the leachateis subject to regulation under the CleanWater Act, and the leachate is not storedin surface impoundments after February13, 2001. See 40 CFR 261.4(b)(15). Webelieved that it was appropriate totemporarily defer the application of thenew waste codes to such leachate inorder to avoid disruption of ongoingleachate management activities whilethe Agency decides how to integrate theRCRA and CWA regulations consistentwith RCRA section 1006(b)(1). Asdiscussed above, we do not anticipatethat this situation is likely to occurbecause the nature of the concentration-based listing makes it difficult todetermine whether the wastespreviously disposed met theconcentrations at the time of disposal.However, to the extent previouslydisposed of dye and pigment wastescould be determined to meet the listingdescription and levels, we believe thatthe same rationale fully discussed in theFebruary 11, 1999 rulemaking applies inthis situation as well. As such, wewould be concerned about forcingpretreatment of leachate even thoughpretreatment is neither required by theCWA nor needed. Therefore, we areproposing to temporarily defer landfillleachate and gas condensate derivedfrom the two categories of dye andpigment wastes, with the sameconditions as described in 40 CFR261.4(b)(15) for petroleum wastes. Webelieve the issue of whether disruptionscan be minimized through integration ofCWA and RCRA rules will be moreamenable to resolution once the CWArulemaking is completed.

We request any available informationon whether or not the two categories ofdye and pigment wastes previouslydisposed in nonhazardous landfillscontained constituents of concernidentified for these wastes at



concentrations equal to or greater thanthe proposed listing levels. Even if wedon’t receive any information thatpreviously disposed dye and pigmentwastes will result in generation ofhazardous landfill leachate and gascondensate, we nonetheless intend tofinalize the temporary deferral forlandfill leachate and gas condensatefrom these wastes. This is becausesomeone may discover this problemlater (after the effective date of thelisting), so, by having a temporarydeferral in place, it would be possible toavoid disruption of ongoing leachatemanagement activities while we furtherexamine this issue and await the CWAfinal rule.

V. Generator Requirements forImplementation of Concentration-BasedListings

We are proposing that theconcentration-based listings be self-implementing. This requires that you(the waste generator) meet the necessaryconditions to determine whether or notyour waste is hazardous based on theprocedures we describe below. We haveidentified the constituents of concernfor the two categories of dye andpigment wastes in Tables IV–1 and IV–2. We have also identified the listinglevel for each of these constituents inthe same tables. We are proposing thatyou use this information, in conjunctionwith waste analysis results, todetermine if your waste is a listedhazardous waste.

Unless you make a determination thatyour waste is nonhazardous using thespecified procedures, you are subject tothe existing requirements under RCRAfor persons who generate hazardouswaste. Thus, if you are not already ahazardous waste generator, you mustnotify the EPA, according to section3010 of RCRA, that you generate ahazardous waste. You are also subject toall applicable requirements forhazardous waste generators in 40 CFR262.

If you determine that your waste isnonhazardous, we are proposing torequire, under the authority of sections2002 and 3007 of RCRA, that you keepcertain records of your waste andsubmit a notification and certification tothe EPA claiming you have anonhazardous waste. Following anonhazardous claim, you would have acontinuing obligation to ensure thatyour waste meets all of the proposedconditions and requirements for thewaste to be deemed nonhazardous.

A. Do I Have to Determine Whether orNot My Waste Is Hazardous?

If you want to assume that your wasteis hazardous as-generated or you don’twant to analyze it to make a hazardouswaste determination, you may do that.In such a case, we are proposing yourwaste would be considered hazardousas-generated and subject to allapplicable RCRA Subtitle C hazardouswaste requirements, effective as of theeffective date of the final rule or initialgeneration of the waste. However, if youwant your waste to be nonhazardous as-generated, you must perform the wasteanalysis steps in V.C and determineyour waste to be nonhazardous. If yourwaste is determined to be nonhazardousand claimed to be nonhazardous within60 days (see V.D) following the effectivedate of the final rule or initialgeneration of the waste, we areproposing that none of the wastegenerated following the effective date ofthe rule or initial generation ishazardous as-generated.

If you elect not to make thisdetermination by the 60th day, oralternatively determine that your wasteis hazardous, you may use the samewaste analysis procedures (see V.C) tomake a nonhazardous determination foryour waste at anytime after the 60thday. If this determination shows yourwaste as-generated is nonhazardous, itcan be claimed to be nonhazardous (seeV.D). We are proposing that thenonhazardous claim for waste as-generated, if submitted more than 60days after the effective date of the ruleor initial generation, would onlybecome effective on the date when youreceive a written receipt or confirmationthat your notification and certificationhas been delivered to the EPA. After youhave received this receipt orconfirmation, any waste generated on orafter the generation date of the wastethat was analyzed for the nonhazardousdetermination may be claimed anonhazardous waste that is not subjectto Subtitle C, including LDRrequirements. Any waste generatedprior to that generation date remainshazardous.

We request comment on whether the60 day time limit for making ahazardous or nonhazardous wastelisting determination and nonhazardouswaste claim should be longer (e.g., 90days) to allow adequate time forsampling and analyses.

B. How Do I Manage My Waste Duringthe Period Between the Effective Date ofthe Final Rule and Initial HazardousWaste Determination for My Waste?

You cannot dispose of your waste asnonhazardous until you complete aninitial determination to show that yourwaste is nonhazardous. Because thepotential hazard from your waste is dueto its placement on land, we areproposing that, as a condition of thewaste being nonhazardous, you muststore your waste in containers, or inanother manner that does not involveland placement.

Because the interim storage period forthe waste prior to a hazardous wastedetermination is relatively short (60days), we request comment on whetherit is necessary to impose such acondition. Given that the generatorwould be subject to enforcement forimproper storage if the waste turns outto be hazardous, generators may haveadequate incentives to store the waste incompliance with Subtitle Crequirements during the interim period.

Alternatively, we could condition thewaste being nonhazardous on thegenerator’s storing the waste inaccordance with the requirementsdescribed in 40 CFR 262.34. This wouldbe an appropriate precaution in case thewaste turns out to be hazardous. Wealso request comment on this approach.

C. What Are the Steps I Must Follow ToDetermine Whether or Not My Waste IsHazardous?

We are proposing the following wasteanalysis steps for making adetermination that your waste isnonhazardous as-generated:

1. You must collect a minimum offour representative samples of yourwaste and analyze each for theconstituents of concern identified inTables IV–1 or IV–2. These samplesmust be adequate to determine themaximum levels of constituents thatmay be in your waste. Instead ofanalyzing for a constituent, you mayalso apply process knowledge(knowledge of the constituents in yourwaste based on the materials,degradation products, andmanufacturing processes used) todocument that a constituent could notbe present in the waste. You shouldnote, however, that process knowledgecannot be used to determine a level ofconstituent in your waste.

2. Compare the sampling and analysesresults or process knowledgeinformation (documentation that aconstituent could not be present in thewaste) for the constituents of concern inyour waste to the hazardous



concentration levels set for theseconstituents.

3. If none of your waste samplescontain any of the constituents ofconcern at concentrations equal to orgreater than the hazardousconcentration levels set for theseconstituents, you can determine thatyour waste is nonhazardous. However,if any of your waste samples containsany of the constituents of concern at aconcentration equal to or greater thanthe hazardous concentration level set forthat constituent, your waste is a listedhazardous waste and subject to allapplicable RCRA Subtitle C hazardouswaste requirements.

We would consider requiring lessthan four representative samples of thewaste for the initial hazardous wastedetermination if this could besupported. We request comment onwhether generators can reliablydetermine the maximum concentrationof constituents in the waste with lessthan four samples. We also requestcomment on whether the generatorsshould be allowed to use processknowledge information, in lieu oftesting, to support claims thatconstituents of concern could not bepresent in their wastes. Alternatively,we could require testing for allconstituents of concern in the initialtesting.

We are proposing that the maximumconcentration of any constituentdetected in any sample must be belowthe established listing level in order foryou to determine that the waste isnonhazardous. We are proposing thisapproach because we believe it is themost protective, and because it does notrely on any statistical manipulation ofwaste analysis data to determineconstituent concentrations in the waste.However, we request comment onwhether the generator should beallowed to average constituent levels inmultiple waste samples. Under thatapproach, the generator would calculateconcentrations using an upperconfidence limit on the mean (e.g., 95thpercent) and compare this limit to thelisting levels established for theconstituents.

D. What Are the Requirements for aWaste Determined To Be Nonhazardous,and How Do I Claim My Waste To BeNonhazardous?

We are proposing that after you havedetermined your waste is nonhazardous,but prior to disposing the waste asnonhazardous, you must claim yourwaste to be nonhazardous as follows:

1. You must submit a one-timenotification to the EPA. The notificationmust include the facility name, address,

and telephone number of an authorizedrepresentative, description of the wasteand potential waste code, and anestimate of the average annual volumeof waste claimed to be nonhazardous.The notification must also include acertification that none of your wastesamples contain any of the constituentsof concern identified for your waste atconcentrations equal to or greater thanthe hazardous concentration levels setfor these constituents, and these levelswere determined without dilution of thewaste. By dilution, we mean addition ofother waste or media to your waste aftergeneration, which do not meet thenarrative listing description for yourwaste, in order to reduce theconcentration of the constituents ofconcern in your waste to below listinglevels.

2. The notification and certificationmust be sent by certified mail returnreceipt, or by written confirmation ofdelivery from a commercial deliveryservice.

3. The certification must be signed bya responsible corporate official andmust state as follows: ‘‘I certify underpenalty of law that none of the wastesamples contain any of the constituentsof concern identified for this waste atconcentrations equal to or greater thanthe hazardous concentration levels setfor these constituents, and that theselevels were determined without dilutionof the waste. Based on information andbelief formed after reasonable inquiry,the statements and information in thedocument are true, accurate, andcomplete. I am aware that there aresignificant penalties for submitting afalse certification, including thepossibility of fine and imprisonment.’’

We are proposing to require thenotification and certification under theauthority of Sections 2002 and 3007 ofRCRA. The notification and certificationwill provide confirmation that certainwastes that meet the narrativedescription for the two categories of dyeand pigment wastes are not RCRAhazardous wastes. We are not proposingto require submission of waste analysisdata to the EPA for review or approval.Instead, we propose to require, alsounder the authority of sections 2002 and3007 of RCRA, that certain records bekept on-site (see below). We requestcomment on whether generators shouldbe required to submit waste analysesdata along with the notification.

E. What Records am I Required To KeepOn-Site To Support a NonhazardousClaim for My Waste?

We are proposing that you must, at aminimum, keep the followinginformation on-site:

1. A copy of the notification andcertification sent to the EPA anddocumentation that it was received.

2. The sampling and analysis planused for collecting and analyzingrepresentative samples of your waste.

3. The initial sampling and analysesdata and process knowledge information(if used) that support a nonhazardousclaim for your waste.

4. All follow-up sampling andanalyses data and process knowledgeinformation (if used) for the most recentthree years.

F. What Happens if I Do Not Meet theNotification and RecordkeepingRequirements for a Waste That I HaveDetermined To Be Nonhazardous?

We are requiring notification andrecordkeeping under the authority ofsections 2002 and 3007 of RCRA. Theseprovisions are requirements, notconditions of the waste beingnonhazardous. Failure to comply withthese requirements may result in anenforcement action under Section 3008of RCRA. This section of the statutepermits the imposition of civil penaltiesin an amount up to $27,500 for each dayof noncompliance.

G. What Are the Follow-Up WasteAnalysis Requirements for MyNonhazardous Waste?

You must analyze a minimum of onerepresentative sample of thenonhazardous waste every calendar yearit is generated. You must also analyze aminimum of one representative sampleof the nonhazardous waste anytime,after the initial waste analysis, there isa process change that may increase theconcentrations of hazardousconstituents of concern in the waste. Ifprocess change has not occurred, youmay use the results of the initial wasteanalysis to create a more tailored list ofthe constituents of concern in yourwaste and test just for thoseconstituents. If your waste is in facthazardous (i.e., if it contains anyconstituent of concern at or above theregulatory level), you are liable forcompliance with Subtitle Crequirements.

We request comment on whether aminimum of four representative samplesshould be required for follow-up wasteanalysis and whether follow-up wasteanalysis required every calendar yearshould be terminated after threeconsecutive years of verification that thewaste remains nonhazardous. Thiswould be based on the waste generatorperforming the required follow-upanalysis on the waste and finding thatnone of the waste samples contain anyof the constituents of concern at



concentrations at or above thehazardous concentration levels set forthese constituents for three consecutiveyears.

H. What Happens if My WasteConstituent Concentration Are NoLonger Below the ListingConcentrations?

If follow-up waste analysis (or anyanalysis of your waste after the initialwaste analysis) finds your wastecontains one or more constituents ofconcern at concentrations at or abovetheir hazardous concentrations, yourwaste is a listed hazardous waste andsubject to all applicable RCRA SubtitleC hazardous waste requirements. Toclaim the waste nonhazardous again,you must repeat the initial wasteanalysis and show that none of thewaste samples contain any of theconstituents of concern at or above theirhazardous concentrations. You mustalso submit a new notification andcertification for your waste.

I. Can I Treat My Waste to Below ListingConcentrations and Then Claim MyWaste To Be Nonhazardous?

If your waste is hazardous as-generated, you can treat the waste tomake it nonhazardous. However, if yourwaste is hazardous as-generated, it issubject to all applicable RCRA SubtitleC hazardous waste requirements andwould be required to be treated in anycase to meet the proposed LDRtreatment standards before anyplacement in a land-based unit. Underthe proposed LDR treatment standards(see Section VI), the wastes must betreated using specified technologies(‘‘technology standards’’). We believethat compliance with LDR treatmentstandards is likely to result innonhazardous concentrations ofconstituents in the waste. However,based on the mixture and derived-fromrules, the treated waste would still carrythe hazardous waste code. Therefore,you may choose to use the initial wastedetermination procedures for waste as-generated (see V.C above) to determineif your treated waste is nonhazardous. Ifyour treated waste is determined to benonhazardous and you want to claim itas nonhazardous, you must follow thesame procedures as those required toclaim ‘‘as-generated’’ wastenonhazardous (see V.D above). We areproposing that the non-hazardousclaims for treated waste would onlybecome effective on the date when youreceive a written receipt or confirmationthat your notification and certificationhas been delivered to the EPA. Thus,prior to the effective date, your wastestill remains a listed hazardous waste

and must meet all applicable RCRASubtitle C hazardous wasterequirements.

J. Alternative Implementation Approach

As an alternative to theimplementation approach proposed intoday’s rule, we may adopt a morestreamlined approach for wastegenerators to use in self-implementingthe concentration-based listings forthese wastes. Under a streamlinedapproach, we would not require thewaste generator to perform samplingand analysis procedures as conditions todetermine that its waste (which meetsthe narrative description of K167 orK168) is nonhazardous. We would alsonot have notification and recordkeepingrequirements for a waste determined tobe nonhazardous. However, the levelsfor the constituents of concern in thewaste would have to be below thelisting levels, if the waste generatedafter the effective date of the rule is tobe handled as nonhazardous waste.Therefore, after the effective date of therule, if the waste is in fact hazardous(i.e., if it contains any constituent ofconcern at or above the regulatorylevel), the waste would be subject toSubtitle C requirements. We may alsoadopt an approach somewhere in themiddle that includes some minimalwaste characterization requirements.

The streamlined implementationapproach discussed above for theconcentration-based listings would besimilar to the existing program fordetermining whether a waste exhibits ahazardous characteristic. At this time,EPA believes the approach presentedearlier in today’s proposal (see V. A–I)is the more appropriate approach forthis listing since, in contrast to thesituation with characteristic wastes, wehave performed analyses specific to thisindustry and have determined that theconstituents of concern are likely to bepresent in the industry’s waste.However, we will give carefulconsideration to any argumentspresented or relevant waste analysisdata submitted in response to today’sproposal (e.g., data showing that only asmall portion of the wastestreams in theindustry exceed the listing levels) inorder to decide whether a morestreamlined approach is warranted. Werequest comment on possibly allowingthe waste generators to use a morestreamlined approach for self-implementing the concentration-basedlistings proposed in today’s rule.

VI. Proposed Treatment StandardsUnder RCRA’s Land DisposalRestrictions

A. What Are EPA’s Land DisposalRestrictions (LDRs)?

The statute requires EPA to establishtreatment standards for all hazardouswastes that are land disposed. These arethe so called ‘‘land disposalrestrictions’’ or LDRs. For anyhazardous waste identified or listedafter November 8, 1984, EPA mustpromulgate these LDR treatmentstandards within six months of the dateof identification or final listing (RCRASection 3004(g)(4), 42 U.S.C. 6924(g)(4)).The statute also requires EPA to set asthese treatment standards ‘‘* * * levelsor methods of treatment, if any, whichsubstantially diminish the toxicity ofthe waste or substantially reduce thelikelihood of migration of hazardousconstituents from the waste so thatshort-term and long-term threats tohuman health and the environment areminimized.’’ (RCRA Section 3004(m)(1),42 U.S.C. 6924(m)(1)).

Wastes that meet treatment standardsestablished by EPA may be landdisposed. Wastes that do not meet thesestandards are prohibited from landdisposal (except in units meeting astringent no-migration test). Each wasteproposed for listing as hazardous in thisrule will be subject to all the landdisposal restrictions on the same daytheir respective listing becomeseffective.

B. How Does EPA Develop LDRTreatment Standards?

To establish LDR treatment standards,EPA first identifies the bestdemonstrated available technology(BDAT) for the hazardous constituentspresent in the hazardous waste, andthen determines what constituentconcentrations can be achieved by thetechnology or technologies identified asBDAT.

EPA typically has establishedtreatment standards based onperformance data from the treatment ofthe waste at issue, if such data areavailable, and also from the treatment ofwastes with similar chemical andphysical characteristics or similarconcentrations of hazardousconstituents. Treatment standardstypically cover both wastewater andnonwastewater waste forms on aconstituent-specific basis. Theconstituents selected for regulationunder the LDR program are notnecessarily limited to those present in aproposed listing , but also may includethose constituents or parameters thatwill ensure that treatment technologies



1 This is not to say that the listing levelsnecessarily represent ‘‘minimize threat’’ levels forthese constituents. EPA is pursuing these questionsin the HWIR rulemaking. Our point here is that thelevels justifying the listing certainly are not lowerthan whatever levels EPA may eventuallydetermine minimize threat levels to be, and that anumerical standard developed using our standardmethodology would be higher still (essentially dueto high detection limits).

2 There are two exceptions. Where the treatmenttechnology is not appropriate to the waste,regulations provide a petition process whereby thegenerator or treatment facility may petition theAdministrator for a variance (see 40 CFR 268.44).In addition, persons may petition the Administratorfor an alternate treatment method by showing thatthe alternate method can achieve a measure ofperformance equal to the method specified by rule(see 40 CFR 268.42(b)).

are operated properly. For listed wasteEPA identifies these as ‘‘regulatedconstituents’’ and they appearindividually in the Table at 40 CFR268.40, along with their respectivetreatment standards.

EPA may either designate a method oftreatment as the treatment standard ordevelop a numerical treatment standard,which could be satisfied by use of anytreatment technology (that doesn’t entailimpermissible dilution). On the otherhand, if the treatment standard is adesignated method, that is the onlypermissible means of treating the waste.

After developing the LDR treatmentstandards, we must also determine iftreatment capacity is available to treatthe expected volumes of wastes. If so,the LDR treatment standards becomeeffective essentially at the same time alisting does. If not, EPA may grant upto a two-year national capacity variance(NCV) during which time the LDRtreatment standards are not effective.

For a more detailed overview of theAgency’s approach for developingtreatment standards for hazardouswastes, see the final rule on solventsand dioxins (51 FR 40572, November 7,1986) and section III.A.1 of thepreamble to the final rule that set landdisposal restrictions for the ‘‘ThirdThird’’ wastes (55 FR 22535, June 1,1990). EPA also has explained its BDATprocedures in ‘‘Best DemonstratedAvailable Technology (BDAT)Background Document for QualityAssurance/Quality Control Proceduresand Methodology (EPA/OSW, October23, 1991)’’. This document is availablein the docket supporting this proposedrulemaking.

C. What Treatment Standards AreProposed?

The Agency has previouslypromulgated technology-specificstandards—i.e., in the words of thestatute, ‘‘methods of treatment’’—for thefollowing K167 core constituents ofconcern: 3,3′-dimethoxybenzidine(U091), 1,2-diphenylhydrazine (U099),formaldehyde (U121), o-toluidine(U328), p-toluidine (U353), and otherchemical(s), the identities of which arenot included due to businessconfidentiality concerns. We alsopromulgated technology-specificstandards for K168 core constituents ofconcern: formaldehyde, o-toluidine, andp-toluidine. Analytical complicationsformed the basis of the Agency’sdecision to promulgate technology-based BDAT treatment standards (see 55FR 22611, June 1, 1990).

These pre-existing technology-specificstandards provide the starting point forour analysis. We also assessed the

potential of developing numericalstandards for these and the otherconstituents of concern in K167 andK168. We found that numericaltreatment standards based onperformance of BDAT (combustion)would nonetheless potentially result insituations where threats to humanhealth and the environment are notminimized, as required by section3004(m). This seeming anomaly isexplained by the fact that numericaltreatment standards based onperformance of combustion consist of ananalytical detection limit times avariability factor. In this instance, thisnumerical value would be significantlyabove the risk-based model levels ofconcern which justify the listing, largelydue to high analytical detection limitsfor some constituents. Thus, thenumerical treatment standardscalculated in the accepted mannerwould arguably not meet the ‘‘minimizethreat’’ language governing LDRtreatment standards in RCRA section3004(m).1 As a result, we are notinclined to pursue the use of numericaltreatment standards for K167 and K168.

In looking further at technology-specific standards, we find that there issignificant structural similarity amongall the constituents of concern,including those for which we have notpreviously set technology-specificstandards. The constituents of concerneither have been demonstrated to betreated effectively by the BDATtechnology to below detection, or are ofstructural similarity that it can beinferred that they would not be moredifficult to treat via combustion or otherdestructive procedures. Hence, weexpect that all constituents of concernfor these two wastes are amenable tosimilar methods of treatment. Therefore,we find the previously promulgatedtechnology-specific standards to be theBDAT for the K167 and K168.

We propose that the technology ofcombustion (CMBST) be specified fornonwastewater waste forms. Forwastewater waste forms, we propose tospecify that one of two alternatives beused: either a treatment train consistingwet air oxidation (WETOX) or chemicaloxidation (CHOXD) followed by carbonadsorption (CARBN), or treatment bycombustion (CMBST). We are confidentthat these technologies in units subject

to either Subtitle C rules, or eventually,MACT standards for hazardous wastecombustors, both of which requirecombustion units to meet specificstandards to assure proper combustionat all times, will substantially diminishthe toxicity of the K167 and K168wastes so that short-term and long-termthreats to human health and theenvironment are minimized. We repeatthat, because we are proposing toexpress the treatment standards asspecified technologies, wastes must betreated by the required technologiesbefore disposal.2

D. Other LDR-Related Provisions

The provisions in 40 CFR 268.45would also be applicable for thetreatment and disposal of hazardousdebris cross-contaminated with K167 orK168. Debris contaminated with K167and/or K168 would be required to betreated prior to land disposal, usingspecific technologies from one or moreof the following families of debristreatment technologies: extraction,destruction, or immobilization.Hazardous debris contaminated with alisted waste that is treated by animmobilization technology specified in40 CFR 268.45 Table 1 is a hazardouswaste and must be managed in ahazardous waste facility. Residualsgenerated from the treatment of debriscontaminated with K167 or K168 wouldremain subject to the treatmentstandards proposed today. Residualsthat no longer exceed the hazardouslisting levels may be disposed innonhazardous waste units. See 57 FR37277, August 18, 1992, for additionalinformation on the applicability, scope,and content of the hazardous debrisprovisions.

Lastly, because land disposal alsoincludes placement in injection wells(40 CFR 268.2(c)) application of the landdisposal restrictions to K167 and K168requires the modification of injectionwell requirements found in 40 CFR 148.We propose that K167 and K168 beprohibited from underground injection.Therefore, K167 and K168 wastes maynot be underground injected unless theyhave been treated in compliance withthe LDR treatment standards or a nomigration petition for these wells hasbeen approved.



E. Is There Treatment and ManagementCapacity Available for These ProposedNewly Identified Wastes?

1. What Is a Capacity Determination?When EPA develops new hazardous

waste LDR regulations, the law (RCRA)requires us to determine whetheradequate alternative treatment capacityexists nationally to manage the wasteand meet the new treatment standards.The LDRs are effective whenpromulgated unless EPA grants anational capacity variance from theotherwise-applicable date andestablishes a different date (not toexceed two years beyond the statutorydeadline) based on ‘‘* * * the earliestdate on which adequate alternativetreatment, recovery, or disposal capacitywhich protects human health and theenvironment will be available’’ (RCRAsection 3004(h)(2), 42 U.S.C.6924(h)(2)).

Our capacity analysis methodologyfocuses on the amount of wastecurrently disposed on the land, whichwill require alternative or additionaltreatment as a result of the LDRs. Thequantities of wastes that are notdisposed on the land, such as dischargesregulated under NPDES, discharges to aPOTW, or treatment in a RCRA exempttank, are not included in the quantitiesrequiring additional treatment as aresult of the LDRs. Also, land disposedwastes that do not require alternative oradditional treatment are excluded fromthe required capacity estimates (i.e.,those that are currently treated to meetstandards). Land disposed wastesrequiring alternative or additionaltreatment or recovery capacity that isavailable on-site or within the samecompany also are excluded from therequired commercial capacity estimates.The resulting estimates of requiredcommercial capacity are then comparedto estimates of available commercialcapacity. If adequate commercialcapacity exists, the waste is restrictedfrom further land disposal. If adequatecapacity does not exist, EPA has theauthority to grant a national capacityvariance.

In making the estimates describedabove, the volume of waste requiringtreatment depends on the current wastemanagement practices employed by thewaste generators before this proposedregulation is finalized and becomeseffective. Data on waste managementpractices for these wastes were collectedduring the development of thisproposed rule. However, we realize thatas the regulatory process proceeds,generators of these wastes may decide tominimize or recycle their wastes orotherwise alter their management

practices. Thus, EPA will monitorchanges and update data on currentmanagement practices as these changeswill affect the volume of wastesultimately requiring commercialtreatment or recovery capacity.

The commercial hazardous wastetreatment industry can change rapidly.For example, national commercialtreatment capacity changes as newfacilities come on-line or old facilitiesgo off-line and as new units and newtechnologies are added at existingfacilities. The available capacity atcommercial facilities also changes asfacilities change their commercial status(e.g., changing from a fully commercialto a limited commercial or ‘‘captive’’—company owned—facility). Thus, EPAalso continues to update and monitorchanges in available commercialtreatment capacity.

We request data on the annualgeneration volumes and characteristicsof wastes affected by this proposed rule,including K167 and K168 in wastewaterand nonwastewater forms, soil or debriscontaminated with these wastes,residuals generated from the treatmentor recycling of these wastes, and thecurrent and planned managementpractices for the wastes, waste mixtures,and treatment residuals. We also requestdata on the current treatment orrecovery capacity capable of treatingthese wastes, facility and unit permitstatus related to treatment of theproposed wastes and any plans thatfacilities may have to expand or reduceexisting capacity, or construct newcapacity. Of particular interest to us arewaste characteristics, such as pH, totalorganic carbon content, constituentconcentrations, and physical forms thatmay limit the availability of treatmenttechnologies.

2. What Are the Capacity AnalysisResults?

This preamble only provides a briefsummary of the capacity analysisperformed to support this proposedregulation. For additional and moredetailed information, please refer to the‘‘Background Document for CapacityAnalysis for Land Disposal Restrictions:Newly Identified Dye and PigmentProcess Wastes (Proposed Rule), June1999.’’

For this capacity analysis, weexamined data on waste characteristicsand management practices gathered forthe purpose of the dyes and pigmentshazardous waste listing determination.The source for these data is primarilythe 1992 RCRA Section 3007 survey andthe follow-up survey specific to thesewastes conducted in 1997 (see thedocket for more information on these

survey instruments—BackgroundDocument for proposed hazardouswaste listing of Dyes and PigmentsWastes). The available data sourcesindicate that there are no quantities ofeither the K167 or K168 wastewater thatwill require alternative commercialtreatment, and therefore this volume isassumed to be zero. There is adequatewastewater treatment capacity availableshould the need for treatment of thewastewater form of these wastes arise.EPA estimates of the quantity ofnonwastewater forms of K167 and K168that may require alternative commercialtreatment and be managed off-site at acommercial hazardous waste treatmentfacility are not included due to businessconfidentiality concerns. Also, theultimate volume of waste estimated torequire alternative or additionalcommercial treatment may change if thefinal listing determination changes;should this occur, we will revise thecapacity analysis accordingly. Theactual quantity of waste requiringcommercial treatment may be smallerdue to facility closures after 1992 (theyear of RCRA Section 3007 survey) andchanges in product formulations. Werecognize the batch process nature ofthis industry and the speed at whichfacilities may change productformulations.

As described in the BDAT sectionabove, EPA is proposing that thetreatment standards be mandatedtreatment methods. The proposedtreatment standard for nonwastewatersis combustion. We estimate that thecommercially available sludge and solidcombustion capacity is at least 300,000tons per year and therefore sufficient totreat the lesser volume of these wasteswhich would newly require treatment.Therefore, we are proposing to not granta national capacity variance from LDRtreatment standards for these wastes.

For soil and debris contaminated withthese wastes, we believe that the vastmajority of contaminated soil and debriswill be managed on-site and thereforewould not require substantialcommercial treatment capacity.Therefore, we are proposing to not granta national capacity variance forhazardous soil and debris contaminatedwith the newly listed wastes coveredunder this proposal. Based on thequestionnaire responses, there are nodata showing mixed radioactive wastesor underground injected wastesassociated with the proposed listings.We are also proposing to not grant anational capacity variance for mixedradioactive wastes (i.e., radioactivewastes mixed with K167 or K168) orwastes being underground injected.



We solicit any updated or additionalinformation pertinent to thisdetermination. We also requestcomments on current and futuremanagement practices and the volumesmanaged for these wastes.

VII. State Authority and Compliance

A. How Are States Authorized UnderRCRA?

Under section 3006 of RCRA, EPAmay authorize qualified States toadminister and enforce the RCRAhazardous waste program within theState. (See 40 CFR Part 271 for thestandards and requirements forauthorization.) Following authorization,EPA retains enforcement authorityunder Sections 3007, 3008, 3013, and7003 of RCRA, although authorizedStates have primary enforcementresponsibility.

Before the Hazardous and Solid WasteAmendments of 1984 (HSWA) amendedRCRA, a State with final authorizationadministered its hazardous wasteprogram entirely in lieu of the Federalprogram in that State. The Federalrequirements no longer applied in theauthorized State, and EPA could notissue permits for any facilities located inthe State with permitting authorization.When new, more stringent Federalrequirements were promulgated orenacted, the State was obligated to enactequivalent authority within specifiedtime-frames. New Federal requirementsdid not take effect in an authorized Stateuntil the State adopted the requirementsas State law.

By contrast, under Section 3006(g) ofRCRA, 42 U.S.C. 6926(g), newrequirements and prohibitions imposedby the HSWA (including the hazardouswaste listings finalized in this notice)take effect in authorized States at thesame time that they take effect in non-authorized States. While States muststill adopt HSWA-related provisions asState law to retain final authorization,EPA is directed to implement thoserequirements and prohibitions inauthorized States, including theissuance of permits, until the State isgranted authorization to do so.

Authorized States are required tomodify their programs only when EPApromulgates Federal standards that aremore stringent or broader in scope thanexisting Federal standards. Section 3009of RCRA allows States to imposestandards more stringent than those inthe Federal program. See also 40 CFR271.1(I). For those Federal programchanges, both HSWA and non-HSWA,that are less stringent or reduce thescope of the Federal program, States arenot required to modify their programs.

Less stringent regulations, both HSWAand non-HSWA, do not go into effect inauthorized States until those Statesadopt them and are authorized toimplement them.

B. What Is the Effect of Today’s Proposalon State Authorizations?

We are proposing today’s rulepursuant to HSWA authority. Thelisting of the new K-wastes ispromulgated pursuant to RCRA Section3001(e)(2), a HSWA provision.Therefore, we are adding this rule toTable 1 in 40 CFR 271.1(j), whichidentifies the Federal programrequirements that are promulgatedpursuant to HSWA and take effect in allStates, regardless of their authorizationstatus. The land disposal restrictions forthese wastes are promulgated pursuantto RCRA Section 3004(g) and (m), alsoHSWA provisions. Table 2 in 40 CFR271.1(j) is modified to indicate thatthese requirements are self-implementing. States may apply foreither interim or final authorization forthe HSWA provisions in 40 CFR271.1(j), as discussed below. Until theStates receive authorization for thesemore stringent HSWA provisions, EPAwill implement them.

A State submitting a programmodification for the portions of this rulepromulgated pursuant to HSWAauthority may apply to receive eitherinterim authorization under RCRAsection 3006(g) or final authorizationunder 3006(b), if the State requirementsare, respectively, substantiallyequivalent or equivalent to EPA’srequirements. States can only receivefinal authorization for programmodifications implementing non-HSWArequirements. The procedures andschedule for final authorization of Stateprogram modifications are described in40 CFR 271.21. It should be noted thatall HSWA interim authorizations arecurrently scheduled to expire onJanuary 1, 2003 (see 57 FR 60129,February 18, 1992).

Section 271.21(e)(2) of EPA’s Stateauthorization regulations (40 CFR Part271) requires that States with finalauthorization modify their programs toreflect Federal program changes andsubmit the modifications to EPA forapproval. The deadline by which theStates must modify their programs toadopt this regulation is determined bythe date of promulgation of a final rulein accordance with section 271.21(e)(2).Table 1 at 40 CFR 271.1 is amendedaccordingly. Once EPA approves themodification, the State requirementsbecome RCRA Subtitle C requirements.

States with authorized RCRAprograms already may have regulations

similar to those in this proposed rule.These State regulations have not beenassessed against the Federal regulationsbeing finalized to determine whetherthey meet the tests for authorization.Thus, a State would not be authorizedto implement these regulations as RCRArequirements until State programmodifications are submitted to EPA andapproved, pursuant to 40 CFR 271.21.Of course, States with existingregulations that are more stringent thanor broader in scope than current Federalregulations may continue to administerand enforce their regulations as a matterof State law. In implementing theHSWA requirements, EPA will workwith the States under agreements toavoid duplication of effort.

C. Who Must Notify EPA That TheyHave a Hazardous Waste?

Under RCRA Section 3010, theAdministrator may require all personswho handle hazardous wastes to notifyEPA of their hazardous wastemanagement activities within 90 daysafter the wastes are identified or listedas hazardous. This requirement may beapplied even to those generators,transporters, and treatment, storage, anddisposal facilities (TSDFs) that havepreviously notified EPA with respect tothe management of other hazardouswastes. The Agency has decided towaive this notification requirement forpersons who handle wastes that arecovered by today’s listings and havealready (1) notified EPA that theymanage other hazardous wastes, and (2)received an EPA identification number.However, any person who generates,transports, treats, stores, or disposes ofthese wastes and has not previouslyreceived an EPA identification numbermust obtain an identification numberpursuant to 40 CFR 262.12 to generate,transport, treat, store, or dispose of thesehazardous wastes 90 days after theeffective date.

D. What Do Generators andTransporters Have To Do?

Persons that generate newly identifiedhazardous wastes may be required toobtain an EPA identification number ifthey do not already have one (asdiscussed above). In order to be able togenerate or transport these wastes afterthe effective date of this rule, generatorsof the wastes listed today will be subjectto the generator requirements set forthin 40 CFR 262. These requirementsinclude standards for hazardous wastedetermination (40 CFR 262.11),compliance with the manifest (40 CFR262.20 to 262.23), pretransportprocedures (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 to262.60). The generator accumulationprovisions of 40 CFR 262.34 allowgenerators to accumulate hazardouswastes without obtaining interim statusor a permit only in units that arecontainer storage units or tank systems;the regulations also place a limit on themaximum amount of time that wastescan be accumulated in these units. Ifthese wastes are managed in units thatare not tank systems or containers, theseunits are subject to the permittingrequirements of 40 CFR 264 and 265,and the generator is required to obtaininterim status and seek a permit (ormodify interim status or a permit, asappropriate). Also, the regulationsrequire that persons who transportnewly identified hazardous wastes toobtain an EPA identification number asdescribed above; such transporters willbe subject to the transporterrequirements set forth in 40 CFR Part263.

E. Which Facilities Are Subject toPermitting?

1. Facilities Newly Subject to RCRAPermit Requirements

Facilities that treat, store, or disposeof wastes that are subject to RCRAregulation for the first time by thisproposed rule (that is, facilities thathave not previously received a permitpursuant to Section 3005 of RCRA andare not currently operating pursuant tointerim status), might be eligible forinterim status (see Section3005(e)(1)(A)(ii) of RCRA). In order toobtain interim status based ontreatment, storage, or disposal of suchnewly identified wastes, eligiblefacilities are required to comply with 40CFR 270.70(a) and 270.10(e) byproviding notice under Section 3010and submitting a Part A permitapplication no later than 6 months afterdate of publication of the final rule.Such facilities are subject to regulationunder 40 CFR Part 265 until a permit isissued.

In addition, under Section 3005(e)(3)and 40 CFR 270.73(d), not later than 6months after date of publication of thefinal rule, land disposal facilities newlyqualifying for interim status undersection 3005(e)(1)(A)(ii) also mustsubmit a Part B permit application andcertify that the facility is in compliancewith all applicable groundwatermonitoring and financial responsibilityrequirements. If the facility fails tosubmit these certifications and a permitapplication, interim status willterminate on that date.

2. Existing Interim Status Facilities

Pursuant to 40 CFR 270.72(a)(1), allexisting hazardous waste managementfacilities (as defined in 40 CFR 270.2)that treat, store, or dispose of the newlyidentified hazardous wastes and arecurrently operating pursuant to interimstatus under section 3005(e) of RCRA,must file an amended Part A permitapplication with EPA no later than theeffective date of today’s rule, (i.e., 6months after date of publication of afinal rule). By doing this, the facilitymay continue managing the newly listedwastes. If the facility fails to file anamended Part A application by thatdate, the facility will not receive interimstatus for management of the newlylisted hazardous wastes and may notmanage those wastes until the facilityreceives either a permit or a change ininterim status allowing such activity (40CFR 270.10(g)).

3. Permitted Facilities

Facilities that already have RCRApermits must request permitmodifications if they want to continuemanaging newly listed wastes (see 40CFR 270.42(g)). This provision Statesthat a permittee may continue managingthe newly listed wastes by followingcertain requirements, includingsubmitting a Class 1 permitmodification request by the date onwhich the waste or unit becomes subjectto the new regulatory requirements (i.e.,the effective date of a final rule),complying with the applicablestandards of 40 CFR Parts 265 and 266and submitting a Class 2 or 3 permitmodification request within 180 days ofthe effective date.

Generally, a Class 2 modification isappropriate if the newly listed wasteswill be managed in existing permittedunits or in newly regulated tank orcontainer units and will not requireadditional or different managementpractices than those authorized in thepermit. A Class 2 modification requiresthe facility owner to provide publicnotice of the modification request, a 60-day public comment period, and aninformal meeting between the ownerand the public within the 60-day period.The Class 2 process includes a ‘‘defaultprovision,’’ which provides that if theAgency does not reach a decision within120 days, the modification isautomatically authorized for 180 days. Ifthe Agency does not reach a decision bythe end of that period, the modificationis permanently authorized (see 40 CFR270.42(b)).

A Class 3 modification is generallyappropriate if management of the newlylisted wastes requires additional or

different management practices thanthose authorized in the permit or ifnewly regulated land-based units areinvolved. The initial public notificationand public meeting requirements are thesame as for Class 2 modifications.However, after the end of the 60-daypublic comment period, the Agency willgrant or deny the permit modificationrequest according to the more extensiveprocedures of 40 CFR Part 124. There isno default provision for Class 3modifications (see 40 CFR 270.42(c)).

Under 40 CFR 270.42(g)(1)(v), fornewly regulated land disposal units,permitted facilities must certify that thefacility is in compliance with allapplicable 40 CFR Part 265 groundwatermonitoring and financial responsibilityrequirements no later than 6 monthsafter the date of publication of a finalrule. If the facility fails to submit thesecertifications, authority to manage thenewly listed wastes under 40 CFR270.42(g) will terminate on that date.

4. UnitsUnits in which newly identified

hazardous wastes are generated ormanaged will be subject to allapplicable requirements of 40 CFR 264for permitted facilities or 40 CFR 265 forinterim status facilities, unless the unitis excluded from such permitting byother provisions, such as the wastewatertreatment tank exclusions (40 CFR264.1(g)(6) and 265.1(c)(10)) and theproduct storage tank exclusion (40 CFR261.4(c)). Examples of units to whichthese exclusions could never applyinclude landfills, waste piles,incinerators, and any othermiscellaneous units in which thesewastes may be generated or managed.

5. ClosureAll units in which newly identified

hazardous wastes are treated, stored, ordisposed after the effective date of thisregulation that are not excluded fromthe requirements of 40 CFR 264 and 265are subject to both the general closureand post-closure requirements ofSubpart G of 40 CFR 264 and 265 andthe unit-specific closure requirementsset forth in the applicable unit technicalstandards Subpart of 40 CFR 264 or 265(e.g., Subpart N for landfill units). Inaddition, EPA promulgated a final rulethat allows, under limitedcircumstances, regulated landfills orsurface impoundments to ceasemanaging hazardous waste, but to delaySubtitle C closure to allow the unit tocontinue to manage nonhazardous wastefor a period of time prior to closure ofthe unit (see 54 FR 33376, August 14,1989). Units for which closure isdelayed continue to be subject to all



applicable 40 CFR 264 and 265requirements. Dates and procedures forsubmittal of necessary demonstrations,permit applications, and revisedapplications are detailed in 40 CFR264.113(c) through (e) and 265.113(c)through (e).

VIII. CERCLA Designation andReportable Quantities

A. What Is the Relationship BetweenRCRA and CERCLA?

CERCLA defines hazardoussubstances to include RCRA hazardouswastes. When EPA adds a hazardouswaste under RCRA, the Agency alsoadds the waste to its list of CERCLAhazardous substances. CERCLA alsoestablishes a reportable quantity or RQfor each CERCLA hazardous substanceas one pound and authorizes EPA toadjust the RQ based on an evaluation ofits physical, chemical, and toxicproperties. If you are the person incharge of a vessel or facility that releasesa CERCLA hazardous substance in anamount that equals or exceeds its RQ,then you must report that release to theNational Response Center and State andlocal authorities. EPA provides a list ofthe CERCLA hazardous substancesalong with their RQs in Table 302.4 at40 CFR 302.

B. Is EPA Proposing To Add Dye andPigment Production Wastes to CERCLA?

Yes. Today, EPA is proposing to addthe dye and pigment production wastes(K167 and K168) to the list of CERCLAhazardous substances. Specifically, EPAis proposing to add the K167 and K168waste streams as EPA defines them at 40CFR Part 261 to Table 302.4 at 40 CFRPart 302.

C. Is EPA Proposing To Adjust theStatutory One Pound RQ for K167 andK168 Wastes?

No. Today, EPA is proposing to retainthe statutory RQ of one pound for bothK167 and K168 wastes. Some of theinformation on which the Agency isbasing its decision to list the waste hasbeen claimed to be confidential businessinformation (CBI) collected for thepurposes of RCRA. The Agency wouldhave to rely on some of this informationto establish RQs for these wastes underCERCLA. EPA adjusts an RQ of a wastestream based on an evaluation of all ofthe listed constituents of that waste.Both K167 and K168 wastes maycontain hazardous constituents thathave been claimed to be CBI. At thispoint, the Agency has been enjoinedfrom releasing any information claimedas CBI and collected pursuant to thisrulemaking. Until the Agency solves

pending questions regarding the use ofinformation collected pursuant to RCRAand claimed as CBI for this listing andfor the CERCLA RQ determination, EPAis deferring making adjustments to thestatutory RQs of these wastes.

D. When Do I Need To Report a Releaseof K167 and K168 Wastes UnderCERCLA?

If EPA promulgates today’s proposedrule, you will need to report a releaseof either K167 or K168 waste if you arethe person in charge of a vessel orfacility that releases either waste andthe amount that is released equals orexceeds one pound.

E. How Do I Report a Release?To report a release of any CERCLA

hazardous substance (including K167and K168, if EPA promulgates this rule)that equals or exceeds its RQ, you mustimmediately notify the NationalResponse Center (NRC) as soon as youhave 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 also are required to report therelease to State and local authorities (see40 CFR 355). The Emergency Planningand Community Right-to-Know Act(EPCRA) requires that owners andoperators of certain facilities reportreleases of CERCLA hazardoussubstances and EPCRA extremelyhazardous substances to State and localauthorities. After the release of an RQ ormore of any CERCLA hazardoussubstance, you must immediately reportthe release to the community emergencycoordinator of the local emergencyplanning committee for any area likelyto be affected by the release, and to theState emergency response commissionof any State likely to be affected by therelease.

F. What Is the Statutory Authority forThis Program?

Section 101(14) of CERCLA definesthe term hazardous substance byreferring to substances listed underseveral other environmental statutes, aswell as those substances that EPAdesignates as hazardous under CERCLAsection 102(a). In particular, CERCLAsection 101(14)(C) defines the termhazardous substance to include ‘‘anyhazardous waste having thecharacteristics identified under or listedpursuant to section 3001 of the SolidWaste Disposal Act.’’ CERCLA section102(a) gives EPA authority to determineRQs for CERCLA hazardous substances.CERCLA section 102(b) establishes aone pound RQ for all hazardous

substances unless and until EPA adjuststhe RQ under section 102(a). CERCLAsection 103(a) requires any person incharge of a vessel or facility that releasesa CERCLA hazardous substance in anamount equal to or greater than its RQto report the release immediately to thefederal government. EPCRA section 304requires owners or operators of certainfacilities to report releases of CERCLAhazardous substances and EPCRAextremely hazardous substances to Stateand local authorities.

We invite comments today’s proposalto designate the K167 and K168 wastesunder CERCLA and how it may affectyou.

IX. Analytical and RegulatoryRequirements

A. Is This a Significant RegulatoryAction? (Executive Order 12866)

Under Executive Order 12866, EPAmust determine whether a regulatoryaction is significant and, therefore,subject to OMB review and the otherprovisions of the Executive Order. Asignificant regulatory action is definedby Executive Order 12866 as one thatmay:

(1) Have an annual effect on theeconomy of $100 million or more oradversely affect in a material way theeconomy, a sector of the economy,productivity, competition, jobs, theenvironment, public health or safety, orState, local, or tribal governments orcommunities;

(2) Create a serious inconsistency orotherwise interfere with an action takenor planned by another agency;

(3) Materially alter the budgetaryimpact of entitlements, grants, user fees,or loan programs or rights andobligations or recipients thereof; or

(4) Raise novel legal or policy issuesarising out of legal mandates, thePresident’s priorities, or the principlesset forth in Executive Order 12866.

Under the terms of Executive Order12866, we have determined that thisrule is a ‘‘significant regulatory action’’because of point four (4) above: the ruleraises novel legal or policy issuesarising out of legal mandates, thePresident’s priorities, or the principlesset forth in this Executive Order.Today’s proposed concentration-basedlisting action deviates from the Agency’sstandard or historic listing approach.Historically, the Agency’s listingprogram has captured entire quantitiesof targeted wastestreams posingunacceptable risks to human health andthe environment. Today’s approachidentifies targeted wastestreams butproposes listing only those quantitiescontaining one or more constituents of



concern at concentration levels thatreflect unacceptable risks. This action,therefore, was submitted to OMB forreview. Changes made in response toOMB suggestions or recommendationsare documented in the public record.

Although this rule is not‘‘economically significant,’’ the Agencyhas prepared an economic supportdocument for today’s rule entitled:Economic Assessment for the ProposedListing of Wastewater Treatment Sludgefrom the Production of Triarylmethane(TAM) Dyes and Pigments, and SpentFilter Aids from Azo, Anthraquinone, orTriarylmethane Dyes, Pigments, andColorants. This Economic Assessmentaddresses, among other factors,compliance costs to the regulatedcommunity, industry economic impacts,qualitative benefits, small entityimpacts, children’s health, andenvironmental justice. A summary offindings from this EconomicAssessment is presented below. Thecomplete Economic Assessmentdocument is available in the RCRAdocket for today’s rule.

Today’s proposed action is projectedto result in incremental annualcompliance costs to the organic dyesand pigments industries, however atthis time we cannot include the range ofaggregate costs due to businessconfidentiality concerns. Estimatedimpacts on potentially affected landdisposal facilities are highly variable,depending upon the regulatory option.Due to business confidentialityconcerns, we are currently not able toinclude annual aggregate nationwidecompliance costs to land disposalfacilities.

B. Why is This Proposed RuleNecessary?

While waste produced by dye andpigment facilities already is regulated toa certain extent, certain waste streamsgenerated by these facilities still poseboth human health and ecological risks.Current disposal practices for both spentfilter aids and TAM wastewatertreatment sludge have the potential topollute soil and water. To date, themarket and other private sectorinstitutions have failed to addresspollution issues associated with thesetwo wastestreams for several reasons.

First, because individuals notresponsible for the pollution bear thecosts in human health and ecologicaldamages, insufficient incentives existfor dye and pigment facilities to incurthe additional costs for implementingpollution control measures. In this case,the private industry costs of productiondo not fully reflect the human healthand environmental costs of management

of these two wastestreams. Thissituation, referred to as ‘‘environmentalexternality,’’ represents a type of marketfailure. A non-regulatory approach, suchas educational outreach programs,would be largely ineffective because thepeople who are made aware of thepotential health risks (e.g., those peopleliving near landfills where these twowastestreams are disposed) have limitedability to reduce exposure withoutincurring significant costs.

Second, the parties harmed by thepollution of soil and water are not likelyto obtain compensation from dye andpigment facilities through legal or othermeans. This is due to the hightransaction costs involved, and thedifficulty citizens may have inestablishing a causal relationshipbetween the damage incurred andactivity at the dye or pigment facility.Establishing a direct link between aspecific dye or pigment facility andhuman health and/or other damagesincurred would be especially difficultsince under current practices manyfacilities dispose of wastes in landfillswhere it is co-mingled with many otherwastes.

We believe that federal governmentintervention is necessary to correct forthese market distortions and to fairlyand consistently internalize costsassociated with these negativeexternalities. We feel that federalregulation is the optimal means ofcorrecting these market failures. EPA,therefore, is proposing a concentrationbased hazardous waste listing for spentfilter aids and TAM wastewatertreatment sludge.

C. What Regulatory Options WereConsidered?

We considered three regulatoryoptions for management of the twowaste streams examined in thisassessment. These were: no listing-status quo, the standard listing approach(covering the entire quantity of allaffected wastestreams), and aconcentration-based listing approach.The no-list option would result inaffected facilities not incurring anyincremental management andadministrative costs under RCRASubtitle C. This option, however, mayresult in affected facilities facing futurehuman health and environmentalliabilities for groundwater damages. Thestandard listing (includes all affectedwastes) option would require that allaffected facilities comply with RCRASubtitle C regulations. These facilitieswould incur incremental managementand administrative costs required underRCRA Subtitle C. The concentration-based listing approach requires that

affected facilities determine whether ornot their waste contains constituentconcentrations that exceed regulatorylimits. If concentrations exceedregulatory limits, the waste is regulatedunder RCRA Subtitle C and the facilitywill incur incremental management,administrative, and analytical costs.Because of the wide variation in thetypes of constituents and concentrationspresent in these two waste streams, theAgency is proposing a concentration-based listing approach in today’s action.

D. What are the Potential Cost Impactsof Today’s Proposed Rule?

1. Introduction and Scope of Analysis

The value of any regulatory policy istraditionally measured by the netchange in social welfare that itgenerates. The Economic Assessmentconducted in support of today’sproposed action examines both costsand benefits in an effort to anticipate theoverall change in social welfare. Theprimary focus of the analysis is oncompliance costs and economic impactspotentially borne by the dyes andpigments industries. Benefits areexamined on a qualitative basis. Otherregulatory issues covered in theEconomic Assessment include smallentity impacts, environmental justice,children’s health, and unfundedmandates. The Economic Assessmentalso examines potential impacts on landdisposal facilities which have receivedwastes considered in this rulemaking.

2. Key Data Sources

The primary source of informationused to establish baseline conditions inthe dyes and pigments industries wasfrom RCRA 3007 questionnaires. TheRCRA 3007 data used in this analysisrepresent the total number of facilitiesbelieved to be generating TAM andspent filter aid waste. Other key datasources include: the 1992 Census ofManufacturers, the U.S. InternationalTrade Commission, and various newssources which report on industrytrends. Because our data were limited,the estimated findings from this analysisshould be viewed as national, and notspecific to any discernible facility.

3. Industry Profile and Market Overview

Today’s proposed action is expectedto affect three different industries; theorganic dyes industry, the organicpigments industry, and the municipaland industrial solid waste landfillindustry. The organic dyes andpigments industries produce dyes andpigments for a wide variety ofintermediate and end users includingthe automotive, textile, printing, and



plastics industries. The municipal andindustrial solid waste landfill industryreceives and manages waste fromindustries generating nonhazardous orexempt materials. A hazardousdetermination for wastes previouslyaccepted as nonhazardous may requiremodified management procedures forthe leachate generated from municipaland industrial facilities that havepreviously accepted these wastes.

Organic Dyes and Pigments Industries—General

Both the organic dyes industry andthe organic pigments industry areclassified under the North AmericanIndustry Classification System (NAICS)as 325132, Synthetic Organic Dye andPigment Manufacturing. The Ecologicaland Toxicological Association of theDyestuffs Manufacturing Industry(ETAD) defines dyes as ‘‘intenselycolored or fluorescent organicsubstances which impart color to asubstrate by selective absorption oflight.’’ The Color PigmentManufacturers’ Association (CPMA)defines pigments as ‘‘colored, black,white, or fluorescent particulate organicor inorganic solids, which usually areinsoluble in, and essentially physicallyand chemically unaffected by, thevehicle or substrate in which they areincorporated.’’

More than 2,000 individual dyes aremanufactured, generally in multiplesmall batch quantities. This largenumber of dyes is attributable to themany different types of materials towhich dyes are applied and the differentconditions of service for which dyes arerequired. There are fewer pigmentsproduced than dyes, however, pigmentbatches are generally larger in size.Organic dyes are classified in severalways including their chemical structureor class, general dye chemistry, andapplication process. Chemical structureclassifications include azos,triarylmethanes (TAM),diphenylmethanes, anthraquinones,stilbenes, methines, polymethines,xanthenes, phthalocyanines, andsulfurs. Organic pigments are derived inwhole or in part from benzenoidchemicals and colors and are describedas toners or lakes. These pigmentsessentially are the same in final form,but differ in their preparation method.This proposed waste listing isconcerned with TAM wastewatertreatment sludges and spent filter aidwaste streams resulting from theproduction of azo, anthraquinone, ortriarylmethane dyes, pigments, andcolorants.

In 1992, the most recent year forwhich consistent data are available,

there were reportedly 38 establishmentslisted under Standard IndustrialClassification (SIC) 28652, SyntheticOrganic Dyes, and 42 establishmentslisted under SIC Code 28653, SyntheticOrganic Pigments, Lakes, and Toners(Bureau of the Census, 1992 Census ofManufacturers). Total employment wasestimated at 5,200 individuals for thesynthetic organic dyes industry and4,500 individuals for the syntheticorganic pigments industry. Aggregateannual wages for both the dyes andpigments industries totaledapproximately $375 million in 1992.

There are significant barriers to entryin both the dyes and pigmentsindustries in terms of capital investmentand environmental liability. Both dyesand pigments are produced by organicsynthesis, which translates into capital-and time-intensive requirements,making a certain level of economy toscale a necessity. During the 1980s,many smaller dyes businesses eitherclosed or were acquired by largercompanies. The smaller dye producersthat remain operating today typicallysupply niche markets not serviced bythe large producers because ofprofitability, environmental concerns, orsmall volumes. During the 1980s, thecolored pigments industry wasdramatically restructured due toglobalization of pigment markets,competitive factors, and the increasingcost of plant improvements to meetgovernmental standards, particularly inthe United States. A number of smallerproducers, unable to compete withlarger international firms, closed theirplants or were acquired by larger firms,primarily from Western Europe orJapan.

Consolidation has continued in thedyes and pigments industriesthroughout the 1990s, and is expected tocontinue through the year 2000 as theindustries face increasing pressure fromthe growth of low-cost producers inAsia and other developing countries.The synthetic organic pigments industrycurrently consists of a few largemultinational companies and a numberof smaller pigment companies thatspecialize in a few product lines. Salesof organic pigments make up a relativelysmall portion of these multinational’soverall chemical sales. The majority ofthe U.S. dye business is currentlycontrolled by European-ownedcompanies operating in the UnitedStates.

The U.S. International TradeCommission’s (USITC) production datafor the five-year period from 1990through 1994 indicated that dyeproduction was highest in 1993 atapproximately 160,000 tons. Production

declined in 1994 to approximately156,000 tons. More recent productioninformation is not available. TheChemical Market Reporter, December22, 1997, indicates that the demand fororganic dyes is likely to increasebetween 2.0 and 2.5 percent annuallythrough the end of the decade. Theaverage unit value of all dyes has variedfrom approximately $6,000 to $6,800per ton during the 1990 through 1993period; data for 1994 are not available.The total production value of dyes inthe mid 1990’s was approximately $1.0billion. The Industry and TradeSummary: Synthetic Organic Pigments,USITC Publication 3021, February 1997,indicates that total U.S. production oforganic pigments grew from 56,400 tonsin 1991 to an estimated 71,500 tons in1995. The average unit value of allorganic pigments has varied from about$14,800 to $16,100 per ton over the1991 through 1995 period. The totalproduction value of organic pigments isestimated at $1.2 billion for 1997.

The majority of organic dye imports tothe U.S. in the mid 1990’s came fromWestern Europe. Most of these importsrepresented intra company salesbetween European dye manufacturersand their U.S. subsidiaries. Asiaaccounted for the vast majority ofremaining imports. Industry expertspredict that this distribution will remainunchanged through the year 2,000. Thepigments industry is a global industrywith imports having a significant impacton the U.S. market. The major syntheticorganic pigments suppliers to theUnited States have been Germany,Japan, Switzerland, and the UnitedKingdom. In 1995, these four countriesaccounted for 73 percent of the value oforganic pigments imports. In recentyears, imports of lower technicalrequirement pigments have increased,with the Republic of Korea and Japanbeing the major suppliers. In recentyears, China and India have emerged asimportant suppliers to the U.S.synthetic organic pigment market.Analysts expect this trend to continueand indicate that increased Chineseimports place downward pressure onprices.

The largest export markets for the U.S.dye industry in 1992, in terms ofquantity, were Canada, Mexico, UnitedKingdom, the Netherlands, and Japan.U.S. exports to Western Europe weremostly intra company sales betweenEuropean dye manufacturers and theirU.S. subsidiaries. The primary exportmarkets for U.S. synthetic organicpigments are Canada, Belgium, theUnited Kingdom, and Japan. During1991–95, total U.S. organic pigmentsexports increased 50 percent from $200



million in 1991, to $299 million in1994, with a slight decline in 1995. Alarge portion of U.S. exports to Europewere believed to be sales by largeEuropean-owned multinationalcompanies with production facilities inthe U.S. The strength of the U.S. dollarwill have a significant impact on theultimate strength of U.S. exports.

The Municipal and Industrial SolidWaste Landfill Industry

A disposal practice for nonhazardousorganic dye and pigment industrywastes is off-site disposal in industrialand/or municipal solid waste landfills.The leachate derived from these wasteshas traditionally been collected andrecirculated, treated, or disposed.Because of the proposed listing,collected leachate from landfills (i.e.,cells) that have accepted these wastesmay be hazardous under the Derived-from Rule. Also, when the leachate fromthese two wastes mixes with leachatefrom other wastes, the entire leachatequantity from the affected landfill (orcell) may be considered hazardousunder the Mixture Rule. By changingthe regulatory status of the proposedwastes, the collected leachate from thedisposal of these wastes will be coveredunder Subtitle C of RCRA. MunicipalSolid Waste (MSW) and industriallandfills that have previously acceptedand generated leachate from thesewastes may face increased leachatemanagement costs.

The EPA Report, Characterization ofMunicipal Solid Waste in the UnitedStates: 1997 Update, EPA530–R–98–007, May 1998, estimates there wereapproximately 2,400 MSW landfills inthe contiguous U.S. for 1996. Based onthe best available data, we havedetermined the number of MSW andindustrial landfills that received the twoorganic dye and pigment industrywastes proposed for listing. Thisinformation, however, is not includeddue to business confidentialityconcerns.

It is highly probable that theselandfills are located within 50 miles ofthe organic dyes and pigments facilities.Leachate quantities generated by each ofthese landfills are dependent upon thegeographic location, area, leachatecollection system design, and operationof the landfill. Recent information fromthe Solid Waste Digest indicates thatlandfills receiving anywhere from 250 to1,500 tons of waste per day arerepresentative of landfills receiving dyeand pigment wastes. Based on anaverage national tipping fee, theapproximate annual sales for a landfillthat, on average, accepts 750 tons ofwaste per day, would be about $7.7

million. Aggregate nationwidemunicipal landfill revenues areestimated in the range of $6.2 to $37.1billion per year.

4. Baseline Waste ManagementProcedures and Costs

This section briefly summarizes thebaseline management procedures andcosts the dyes and pigments industriesare subject to in contending with theproposed wastes. Baseline leachatemanagement procedures and costsexperienced by landfills accepting theproposed dye and pigment wastes arealso discussed.

Organic Dyes and Pigments—ProposedWastestream Listings

The two wastes generated during theproduction of dyes and pigments thatwe are proposing for listing ashazardous under RCRA are identified asK167 and K168. These are describedbelow:

K167—Spent filter aids, diatomaceousearth, or absorbents used in theproduction of azo, anthraquinone, ortriarylmethane dyes or pigments.

K168—Wastewater treatment sludgefrom the production of TAM dyes andpigments (excluding triarylmethanepigments using aniline as a feedstock).

The annual generation of theseproposed hazardous wastes areestimated and analyzed as combinedquantities. Further discussion onmanagement practices is not includeddue to business confidentialityconcerns. This analysis applies baselinescenarios using both MSW lined andindustrial D unlined landfill facilities.

Costs for baseline waste managementpractices were derived from publishedsources and industry submitted data.The cost for waste disposal in a linedMSW landfill with leachate collection isestimated at $75 per ton. Disposal in anunlined landfill is estimated at $63 perton. Waste disposal costs for Facilitiescurrently managing under Subtitle C areestimated at $650 per ton forincineration and $213 per ton fordisposal in a Subtitle C landfill. Wastedischarge to a POTW is estimated tocost $1.50 per 1,000 gallons. TheSubtitle C transportation cost isestimated at $53 per ton, within a 200-mile limit.

Dye and Pigment LeachateManagement—Affected Landfills

Our analysis indicates that a numberof landfills are likely to be affected bythe proposed dye and pigment listing.The number of affected landfills,however, is not included here due tobusiness confidentiality concerns. Dataon leachate management practices for

these landfills are extrapolated from apetroleum sample leachate managementdistribution. Applying the distributionof management practices identified inthe petroleum sample to the populationof landfills affected by the two wastesindicates results that cannot be includeddue to business confidentialityconcerns.

The average leachate and condensatequantities generated per representativelandfill over the 5-year expectedgeneration scenario are as follows: 5.0million gallons per year discharge via aNPDES-permit, 4.2 million gallons peryear to a POTW, 2.0 million gallons peryear trucked to an off-site POTW, 1.6million gallons per year for which aportion is trucked and the remainder(0.6 million gallons per year) isrecirculated.

Baseline leachate and condensatemanagement cost data were provided byrepresentative landfill facilities. Thesedata were used to develop average unitcost estimates on a per year per landfillbasis for each leachate managementpractice. Average leachate managementcosts are estimated as follows: truck toan off-site POTW ($0.07/gallon), truck aportion to an off-site POTW andrecirculate the remaining fraction($0.05/gallon), discharge to an NPDESoutfall ($0.04/gallon), discharge via pipeto POTW ($0.03/gallon), and recirculate($0.01/gallon).

5. Compliance Waste ManagementProcedures and Costs

We considered three regulatoryoptions in analyzing compliant wastemanagement procedures and costs forgenerators of the proposed wastelistings: no listing-status quo,concentration-based listing, andstandard listing. The no-list optionresults in no incremental compliancecosts. The concentration-based listingrequires sampling and analysis costs notnormally required under a standardlisting, but may result in reduced wastequantities managed as hazardous waste.The assessment conducted for today’saction examines the economic impactsto the affected facilities under theproposed concentration-based listingand assumes 100 percent of all affectedwastestreams must be managed ashazardous waste. This assumptionresults in a high-end, or worst casescenario for examining industryeconomic impacts.

We also considered three regulatoryoptions in the evaluation of compliantprocedures and costs for leachategenerated from landfills that haveaccepted the proposed dye and pigmentwastestreams. These options are: no list,a Clean Water Act temporary deferral



option with a two-year impoundmentdeferral, and, a standard listing leachatemanagement option that treats theleachate as hazardous waste subject toSubtitle C regulation. The no-list optionwould result in no incrementalmanagement and cost impacts toaffected landfills. The Clean Water Acttemporary deferral option wouldexempt the landfill leachate from beingRCRA Subtitle C regulation if it ismanaged under the Clean Water Act.After two years, impoundments wouldno longer be allowed to manage exemptleachate. The standard listing optionwould require that landfills treat theleachate as hazardous waste and subjectto Subtitle C regulation under theDerived-from and Mixture Rules.Existing exemptions would apply. Weexamined compliance managementprocedures and incremental cost tolandfills under the Clean Water Acttemporary deferral and standard listingoptions.

Organic Dyes and Pigments Industries—Proposed Wastestream Listings

Future post listing compliance wastemanagement practices assume thepromulgation of land disposalrestrictions (LDRs). The compliancemanagement practice assumed is RCRASubtitle C hazardous waste incineration,with disposal of the resulting ash in aSubtitle C landfill. Stabilization of theincinerator ash is not assumed given thelack of significant hazardous metalconstituents in the wastes. Ourassumptions for other managementpractices reported are not included dueto business confidentiality concerns.Cost estimates for compliancemanagement activities have beenderived using unit costs from publishedsources and additional data obtainedfrom Agency and contractor knowledge.Subtitle C incineration and ash disposalin a Subtitle C landfill is estimated at$650/ton and $213/ton, respectively.Shipping costs to Subtitle C facilities isbased on a flat fee of $53/ton for a 200-mile radius.

Facilities generating the proposedwaste listings are subject to Part 262 ofRCRA. There are four primaryrequirements specified in the Part 262standards: plants must obtain an EPAidentification number, an approvedmanifest system must be established,pre transport requirements must besatisfied (labeling, marking, placarding),and, specified record keeping andreporting requirements are triggered. Allof the facilities affected by this proposedlisting are assumed to have already beenaffected by the previous proposedlisting. Therefore, minimal incrementaladministrative costs are assumed to be

incurred as a result of today’s proposedlisting. This analysis assumes thatRCRA Parts 264 and 270 do not apply.

Sampling and analysis costs in thisassessment are based on the assumptionthat wastes produced at each facilitywill be sampled each year. Aggregatesampling and analysis costs are basedon an average and worst case number ofchemicals. Sampling and analysis costsinclude taking the sample, packaging,transportation, analysis of the sample,and reporting the results. Costs wereestimated assuming analysis for totalconcentrations. The annualizedsampling costs for constituents areestimated to be $153/sample, and thesampling costs for the worst-casenumber of constituents are estimated tobe $246/sample.

Corrective action compliance costsassociated with non-permitted facilitiesinclude the cost to conduct a RCRAFacility Investigation (RFI), a CorrectiveMeasures Study (CMS), and remediatesolid waste management units (SWMUs)and areas of concern (AOCs). Because ofthe previous listing, we assumed allfacilities affected by this proposed rulewill already have triggeredquanitification of the above correctiveaction compliance costs. No incrementalcosts for corrective action complianceare assumed to be incurred as a resultof this proposed listing.


Under the Standard Listing regulatoryoption, the leachate collected fromlandfill cells that received these twowaste streams will be managedaccording to the requirements specifiedunder Subtitle C of RCRA. Under theClean Water Act temporary deferralregulatory option, the Agency willexempt the leachate from beingregulated as hazardous under Subtitle Cif it is managed in tank systems underthe Clean Water Act (including POTWs)or through recirculation. Under a no listregulatory option, leachate quantitiesgenerated at MSW landfills willcontinue to be regulated under SubtitleD of RCRA and leachate quantitiesgenerated at industrial waste landfillswill be subject to state and localregulations.

Cost estimates for leachatecompliance management andtransportation activities were derivedusing unit costs from published sources,annualized costs (updated) developed inthe previously proposed organic dyeand pigment hazardous waste listings,and the recent final listing of fourpetroleum refining waste streams. Costestimates have been developed on anannualized per landfill basis for capital

and O&M requirements, based on a 5-year, 10-year, and 20-year period ofamortization. These periods aredesigned to reflect the period underRCRA regulation and the remaining lifeof the landfill. The cost estimate rangesalso cover the expected five-yearleachate generation and ten-yearconservative leachate generation case.Because there are fewer commercialtreatment/POTW facilities permitted toreceive manifested hazardouswastewaters (i.e., leachate), totaltransport distances are assumed toincrease with the promulgation of therule.

We have developed compliance costestimates for the following leachatemanagement practices: truck to aPOTW, truck to a POTW plus reticulate,reticulate only, hardpipe to a POTW,and discharge via NPDES. RCRAadministrative costs are also estimated.Annualized compliance costs on a perlandfill basis, presented in milliondollars, are estimated as follows: truckto a POTW ($1.71–$7.00), truck to aPOTW plus reticulate ($1.38–$5.64),reticulate only ($0.01–$0.02) , hardpipeto a POTW (same as baseline), anddischarge via NPDES ($0.10–$0.27).These costs encompass the full range ofamortization over the five, ten, andtwenty year period. RCRAadministrative costs associated withcompliance are estimated to be no morethan $4,000 per landfill per year.

6. Incremental Aggregate ComplianceCosts

This section summarizes the projectedincremental compliance costs associatedwith today’s proposed action.Incremental costs are estimated for thegenerators of the proposed dye andpigment wastes, and the Subtitle Dlandfill facilities that accepted thesewastes.

Organic Dyes and Pigments—ProposedWastestream Listings

Total baseline management andcompliance management costs werecalculated on a per unit basis for eachactivity. Incremental costs are thedifference between baseline andcompliance costs, includingadministrative, and sampling andanalysis costs. The total incrementalcost is the summation of this differencebetween baseline and compliance costsacross all affected waste quantities/facilities. Our analysis indicates thattotal incremental costs associated withthe proposed listing may fall within abroad range. We are not able to presentthese findings due to businessconfidentiality concerns. Presentation ofthe average incremental cost per ton is



also subject to business confidentialityrestrictions. The high-end estimateassumes 100 percent baseline wastemanagement in an unlined landfill, andanalytical costs for the high-endestimate of constituents potentiallyimpacted.


The total incremental landfill costsare estimated by multiplying thenumber of affected landfills in eachleachate management category byincremental landfill costs, calculated ona unit-by-unit basis. The estimatedimpacts on the affected land disposalfacilities are highly variable, dependingon the regulatory option. Under thestandard listing option, costs werefound to fall within a broad range.Business confidentiality restrictionsprevent us from releasing thisinformation. The range reflects a five,ten, or twenty year amortizationschedule, and the five or ten yearleachate generation period. Presentationof cost impacts under the Clean WasteAct temporary deferral option is alsorestricted due to businessconfidentiality concerns.

E. What Are the Potential EconomicImpacts to Industry From the ProposedRule?

We examined the economic impactsto both dye and pigment manufacturersand solid waste landfill facilities. Theimpacts to the dye and pigment industrywere examined by comparingincremental costs to annual estimatedsales for the affected product lines.Incremental compliance costs tolandfills were examined as a percent ofrevenues from tipping fees.

Economic Impacts—Organic Dyes andPigments Industry

Waste generation rates for filter aidsand TAM sludge are variable,depending upon the product beingmanufactured. A model facilitiesapproach was used based on fourrepresentative waste generation ratecategories. Information regarding wastegeneration rates, production rates, andproduct sales was derived fromresponses to RCRA 3007 questionnairesand from U.S. International TradeCommission Reports. Like wastegeneration rates, product prices are alsohighly variable. Product prices used inthis analysis ranged from $6,500 to$18,000 per ton. Data provided in U.S.International Trade Commission publicreports served as a basis forapproximating average industry prices.

Gross sales, based on the above rangeof waste generation rates and prices,

were estimated. These findings,however may not be divulged due tobusiness confidentiality concerns. Amidpoint of annual gross sales was alsoestimated for the waste generationcategories examined. It should be notedthat individual facilities are likely toproduce a variety of products, not all ofwhich will be affected by this proposedrulemaking. The gross sales estimatesdeveloped for this analysis only reflectsales of affected product lines and donot reflect aggregate sales for any singlefacility.

Incremental compliance cost impactswere estimated but may not be releasedto the public due to businessconfidentiality concerns. The actualeconomic impact will likely bedependent on the price elasticity ofdemand for individual dye and pigmentproducts. For example, if an affectedproduct has many close substitutes, it ispossible that the producer of theimpacted product may not be able tomodify prices in response to increasedproduction costs. Conversely, dye andpigment products with uniqueapplications may have a more inelasticdemand. Prices of these products maybe increased enough to largely offset anychanges associated with the rulemaking.It is important to consider that thisrulemaking affects less than a certainpercent of the overall combinedproduction of the dyes and pigmentsindustries. While the estimated impactsmay be experienced on selected productlines, overall impacts on the industriesare expected to be less due to multipleproduct lines.

Economic Impacts—Solid WasteLandfills Managing Dye and PigmentLeachate

We examined average incrementalcompliance costs as a percent of sales(tipping fee revenues) for three differentsized landfills to estimate potentialeconomic impacts of the proposedlisting on landfill management costs.The model landfill facilities wereassumed to accept 250, 750, and 1,500tons of waste per day. These sizes wereselected as representative of theindustry and landfills accepting dye andpigment wastes.

Annual landfill sales were derived foreach of the models using an averagenational tipping fee of $35.81/ton. It wasassumed that the landfills operatedapproximately 286 days a year (five andone-half days/week). Therefore,approximate annual sales for a landfillthat on average accepts 750 tons ofwaste per day would be $7.68 million.Impact estimates are based on averageleachate generation rates.

Incremental costs were examined forboth the Standard Regulatory Optionand the Clean Water Act temporarydeferral. For each option, incrementalcosts were considered for sixmanagement practices. In estimating thepotential economic impacts of theStandard Regulatory Option, expectedincremental compliance costs based ona five-year amortization schedule wereused. The five-year amortization isbelieved to correspond more closely tothe actual leachate generation.Incremental compliance costs for theanalysis of the Clean Water Acttemporary deferral option are based ona 20-year capital amortization schedule.

Under the standard listing option, wehave estimated costs that facilitieswould face if they have to truck theleachate to a POTW. These impactscannot be presented to the public due tobusiness confidentiality concerns.Actual incremental compliance costs forthe smallest landfill size were estimatedbut may not be divulged. Impacts inrelation to all other technologies in thestandard listing scenario were estimatedbut may not be divulged due to businessconfidentiality concerns. Under theClean Water Act temporary deferraloption, costs were also estimated.Business confidentiality concernsprevent us from releasing thisinformation also.

F. What Are the Potential Benefits Fromthe Proposed Rule?

We conducted a qualitative benefitsanalysis of today’s proposed listing offilter aids and TAM wastewatertreatment sludges. This analysisaddresses human health benefitsprojected as a result of the proposedlisting. The analysis also examinesbenefits associated with wasteminimization efforts potentiallystimulated by this action. Potentialecological benefits are not examined.The analysis incorporates findings from,and is consistent with, the risk analysisconducted in support of this action.Incremental individual and/orpopulation benefits are not available forincorporation into this benefits analysis.

In determining whether wastegenerated from the production of dyesand pigments meets the criteria forlisting a waste as hazardous as set outat 40 CFR 261.11, we initially evaluatedthe potential toxicity and intrinsichazard of the constituents likely to bepresent in the waste streams. The fateand mobility of these chemicals, thelikely exposure routes, the current wastemanagement practices, and plausiblemanagement practices were examined.Based on this assessment we identifieda core list of constituents associated



with filter aids TAM sludges. We areseeking comment on the inclusion ofother constituents of potential concern(see Section IV).

Human Health BenefitsOne objective of a human health risk

assessment is to estimate the number ofchronic health impacts that could beavoided as a result of theimplementation of the proposed rule.This would include the exposures bydrinking contaminated water fromresidential wells located near the sourceof contamination, consuming foodproducts contaminated by blowing dustor vapors, and otherwise being exposeddirectly to contaminated soil and water.

The benefit associated with today’saction is the enhanced securityassociated with more stringentmanagement requirements for theproposed ‘‘high concentration’’ filter aidand TAM wastestreams. When thesewastestreams are managed under themore stringent Subtitle C requirements,the risks to human health and theenvironment associated with theirdisposal is minimized.

Waste Minimization BenefitsRegulatory compliance costs for the

dyes and pigments industries may belowered through use of wasteminimization practices. A previouslyissued guidance document on pollutionprevention, recycling, and reusepractices for the dye manufacturingindustry offers a number of general andspecific alternatives. Engineering sitevisits, particularly at newer facilities,indicated that a number of thesepractices are economically andtechnically feasible. These visits alsopointed out areas of improvementneeded at all facilities, most notablyreduction of wastewater volume.

Specific waste minimizationprocedures and corresponding costreductions tend to be highly dependenton the manufacturing processes at eachfacility. The following wasteminimization opportunities for specificplant operations and waste streams maydecrease compliance costs throughreduction in waste volume at dye andpigment facilities: filtering devices withreusable membranes, centrifugation, drycollection of dust and fines wheneverpracticable, automated handling andmeasurement of raw materials andproducts, and consideration of processintegration for recycling to other parts ofthe same facility.

As noted earlier in today’s notice, aconcentration-based listing alsoprovides an added incentive forgenerators to reduce the level ofhazardous constituents of concern. If

constituent levels are reduced to belowthe concentration levels specified in thelisting regulation, then their waste willnot be regulated as hazardous.

G. What Consideration Was Given toSmall Entities?

Pursuant to the Regulatory FlexibilityAct (5 U.S.C. 601 et seq., as amended bythe Small Business RegulatoryEnforcement Fairness Act (SBREFA) of1996) whenever an agency is required topublish a notice of rulemaking for anyproposed or final rule, it must prepareand make available for public commenta regulatory flexibility analysis thatdescribes the effect of the rule on smallentities (i.e., small businesses, smallorganizations, and small governmentaljurisdictions). However, no regulatoryflexibility analysis is required if thehead of an agency certifies the rule willnot have a significant economic impacton a substantial number of smallentities.

We conducted a screening analysis toanswer a series of questions regardingthe potential impacts of the proposeddyes and pigments waste listing onsmall entities. This analysis wasconducted per the requirements of theRegulatory Flexibility Act (RFA) asamended by the Small BusinessRegulatory Enforcement Fairness Act(SBREFA), and Agency guidance. Ourscreening analysis came to a definitiveconclusion. However, we are not able todivulge this conclusion due to businessconfidentiality concerns.

The Small Business Administration(SBA) size standard for small businessesin the dyes and pigments industry,which is part of cyclic crudes andintermediates (NAICS 325132) is 750employees (13 CFR 121.201). This, andall size standards apply to the owners orparent corporation, of the business, andnot individual plant operations whichare most directly affected by thisproposed regulation. Of the dye andpigment companies potentially affectedby the regulation, we have determinedthe maximum number of smallbusinesses under the SBA size standard.This determination, however, is notavailable for public release due tobusiness confidentiality concerns. It ispossible that some of the landfillsaffected by this rulemaking may besmall according to the SBA sizestandards for landfills (less than $5million in sales).

Data are not available on the financialstatus of the small entities in question,as they are privately held companies.However, we have made a preliminaryestimate of the impact on thesecompanies, assuming that 100 percentof all wastes are managed as Subtitle C.

We may not release this finding due tobusiness confidentiality concerns.

It is important to recognize that theseestimates are based only on productsales which are directly associated withthe waste generated. For instance, anindividual company may produce 100different dyes, but spent filter aids mayonly be generated in the production of20 of them. In this case, the impactestimate only represents the sales valueof the 20 dyes associated with thegeneration of the spent filter aids, andnot on overall company sales. Overallcompany impacts would be lower. Forthe landfills potentially affected by therule, impacts have been estimated butare not available for release due tobusiness confidentiality concerns.

As a result of the screening analysis,the Agency has come to a conclusionconcerning small business impacts butis not able to release this informationdue to business confidentialityconcerns. This rule does not require afull regulatory flexibility analysis. TheEconomic Assessment documentpresents the complete regulatoryflexibility screening analysis conductedin support of today’s action.

H. What Consideration Was Given toChildren’s Health?

Children’s Health (Executive Order13045)

‘‘Protection of Children fromEnvironmental Health Risks and SafetyRisks’’ (62 FR 19885, April 23, 1997)applies to any rule that: (1) isdetermined to be ‘‘economicallysignificant’’ as defined under E.O.12866, and (2) concerns anenvironmental health or safety risk thatEPA has reason to believe may have adisproportionate effect on children. Ifthe regulatory action meets both criteria,the Agency must evaluate theenvironmental health or safety effects ofthe planned rule on children, andexplain why the planned regulation ispreferable to other potentially effectiveand reasonably feasible alternativesconsidered by the Agency. Thisproposed rule is not subject to theExecutive Order because it is noteconomically significant as defined inE.O. 12866, and because the Agencydoes not have reason to believe theenvironmental health or safety risksaddressed by this action present adisproportionate risk to children.

The topic of environmental threats tochildren’s health is growing inregulatory importance as scientists,policy makers, and village leaderscontinue to recognize the extent towhich children are particularlyvulnerable to environmental hazards.



Recent EPA actions have been in theforefront of addressing environmentalthreats to the health and safety ofchildren. Today’s proposed rule furtherreflects our commitment to mitigatingenvironmental threats to children.

A few significant physiologicalcharacteristics are largely responsiblefor children’s increased susceptibility toenvironmental hazards. First, childreneat proportionately more food, drinkproportionately more fluids, and breathemore air per pound of body weight thando adults. As a result, childrenpotentially experience greater levels ofexposure to environmental threats thando adults. Second, because children’sbodies are still in the process ofdevelopment, their immune systems,neurological systems, and otherimmature organs can be more easily andconsiderably affected by environmentalhazards. The connection between thesephysical characteristics and children’ssusceptibility to environmental threatsare reflected in the higher baseline risklevels for children.

Today’s proposed rule will reducerisks posed by the hazardousconstituents found in the listed wastestreams by requiring more appropriateand safer management practices. EPAconsidered risks to children in its riskassessment and set allowableconcentrations for constituents in thewaste at levels that are believed to beprotective to children, as well as adults.The more appropriate and safermanagement practices proposed in thisrule are projected to reduce risks tochildren potentially exposed to theconstituents of concern.

The public is invited to submit oridentify peer-reviewed studies and data,of which the agency may not be aware,that assess results of early life exposureto the proposed hazardous constituentsfrom filter aids and TAM wastegenerated in the production of organicdyes and pigments.

I. What Consideration Was Given toEnvironmental Justice?

Environmental Justice (Executive Order12898)

Executive Order 12898, ‘‘FederalActions to Address EnvironmentalJustice in Minority Populations andLow-Income Population’’ (February 11,1994), is designed to address theenvironmental and human healthconditions of minority and low-incomepopulations. EPA is committed toaddressing environmental justiceconcerns and is assuming a leadershiprole in environmental justice initiativesto enhance environmental quality for allresidents of the United States. The

Agency’s goals are to ensure that nosegment of the population, regardless ofrace, color, national origin, or incomebears disproportionately high andadverse human health andenvironmental impacts as a result ofEPA’s policies, programs, and activities,and that all people live in clean andsustainable communities. In response toExecutive Order 12898 and to concernsvoiced by many groups outside theAgency, EPA’s Office of Solid Wasteand Emergency Response (OSWER)formed an Environmental Justice TaskForce to analyze the array ofenvironmental justice issues specific towaste programs and to develop anoverall strategy to identify and addressthese issues (OSWER Directive No.9200.3–17).

To comply with the Executive Order,we have assessed whether today’sproposed rule may havedisproportionate effects on minoritypopulations or low-income populations.We do not have determinative facilitylocation correlated with minoritypopulation and impacts data to indicatethat the environmental problemsaddressed by the proposed listing fordye and pigment wastes coulddisproportionately effect minority orlow income communities. The affectedfacilities, however, are distributedthroughout the country and many arelocated within highly urbanized areas.Because the proposed rule reducesenvironmental risks associated with themanagement of the proposed wastestreams, the Agency believes that thisrule will not result in adverse humanhealth and environmental impacts.Today’s proposed rule, therefore, is notexpected to result in anydisproportionately negative impacts onminority or low income communitiesrelative to affluent or non minoritycommunities.

J. What Consideration Was Given toUnfunded Mandates?

Executive Order 12875Under Executive Order 12875, EPA

may not issue a regulation that is notrequired by statute and that creates amandate upon a State, local or tribalgovernment, unless the Federalgovernment provides the fundsnecessary to pay the direct compliancecosts incurred by those governments, orEPA consults with those governments. IfEPA complies by consulting, ExecutiveOrder 12875 requires EPA to provide tothe Office of Management and Budget adescription of the extent of EPA’s priorconsultation with representatives ofaffected State, local and tribalgovernments, the nature of their

concerns, any written communicationsfrom the governments, and a statementsupporting the need to issue theregulation. In addition, Executive Order12875 requires EPA to develop aneffective process permitting electedofficials and other representatives ofState, local and tribal governments ‘‘toprovide meaningful and timely input inthe development of regulatory proposalscontaining significant unfundedmandates.’’

Today’s rule implements mandatesspecifically and explicitly set forth bythe Congress without the exercise of anypolicy discretion by EPA. This action isproposed under the authority ofSections 3001(e)(2) and 3001 (b)(1) ofthe Hazardous and Solid WasteAmendments (HSWA) of 1984, whichdirect EPA to make a hazardous wastelisting determination for certain wastesfrom the dye and pigment industries.Accordingly, the requirements ofsection 1(a) of Executive Order 12875 donot apply to this rule.

Unfunded Mandates Reform Act(UMRA)

The Unfunded Mandates Reform Act(UMRA) of 1995 supersedes ExecutiveOrder 12875 and reiterates previouslyestablished directives, while imposingadditional requirements. Title II of theUMRA, Public Law 104–4, establishesrequirements for Federal agencies toassess the effects of their regulatoryactions by State, local, and tribalgovernments and the private sector.Under section 202 of UMRA, EPAgenerally must prepare a writtenstatement, including a cost-benefitanalysis, for proposed rules and finalrules for which the Agency published anotice of proposed rulemaking if thoserules contain ‘‘Federal mandates’’ thatmay result in the expenditure by State,local, and tribal governments , in theaggregate, or to the private sector, of$100 million or more in any single year.If a written statement is needed, section205 of the UMRA generally requiresEPA to identify and consider areasonable number of regulatoryalternatives. Under section 205, EPAmust adopt the least costly, most cost-effective or least burdensome alternativethat achieves the objectives of the rule,unless the Administrator publishes withthe final rule an explanation why thatalternative was not adopted. Theprovisions of section 205 do not applywhen they are inconsistent withapplicable law.

We have determined that thisproposed rule will not result in theexpenditure of $100 million or more byState, local, and tribal governments, in



the aggregate, or by the private sector inany single year.

K. What Consideration Was Given toTribal Governments Analysis?

Executive Order 13084

Under Executive Order 13084,‘‘Consultation with TribalGovernments,’’ the EPA may not issue aregulation that is not required bystatute, that significantly or uniquelyaffects the communities of Indian tribalgovernments, or that imposessubstantial direct compliance costs onthose communities, unless the Federalgovernment provides the fundsnecessary to pay the direct compliancecosts incurred by the tribalgovernments. If EPA complies byconsulting, the EPA must provide theOffice of Management and Budget, in aseparately identified section of thepreamble to the rule, or proposed rule,a description of the extent of our priorconsultation with representatives ofaffected tribal governments, a summaryof their concerns, and a statementsupporting the need to issue theregulation. Also, Executive Order 13084requires the EPA to develop an effectiveprocess permitting elected and otherrepresentatives of Indian tribalgovernments to, ‘‘provide meaningfuland timely input in the development ofregulatory policies on matters thatsignificantly or uniquely affect theircommunities.’’

For many of the same reasonsdescribed above under unfundedmandates, the requirements of ExecutiveOrder 13084 do not apply to thisproposed rulemaking. While ExecutiveOrder 13084 does not provide a specificgauge for determining whether aproposed regulation ‘‘significantly oruniquely affects’’ an Indian tribalgovernment, this proposal does notimpose substantial direct compliancecosts on tribal governments and/or theircommunities. Tribal communities arenot known to own or operate any dyeor pigment manufacturing facilities, norare these communitiesdisproportionately located adjacent to ornear such facilities. Finally, tribalgovernments will not be required toassume any administrative or permittingresponsibilities associated with thisproposed rule.

L. Was the National TechnologyTransfer and Advancement ActConsidered?

Section 12(d) of the NationalTechnology Transfer and AdvancementAct of 1995 (‘‘NTTAA’’), Public Law104–113, section 12(d) (15 U.S.C. 272note) directs EPA to use voluntary

consensus standards in its regulatoryactivities unless to do so would beinconsistent with applicable law orotherwise impractical. Voluntaryconsensus standards are technicalstandards (e.g., materials specifications,test methods, sampling procedures, andbusiness practices) that are developed oradopted by voluntary consensusstandards bodies. The NTTAA directsEPA to provide Congress, through OMB,explanations when the Agency decidesnot to use available and applicablevoluntary consensus standards.

This proposed rulemaking does notinvolved technical standards. Therefore,EPA is not considering the use of anyvoluntary consensus standards.

M. How Is the Paperwork Reduction ActConsidered in Today’s Proposal?

The information collectionrequirements in this proposed rule havebeen submitted for approval to theOffice of Management and Budget(OMB) under the Paperwork ReductionAct, 44 U.S.C. 3501 et seq. AnInformation Collection Request (ICR)document has been prepared by EPA(ICR No. 1918.01) and a copy may beobtained from Sandy Farmer by mail atOffice of Policy (OP) RegulatoryInformation Division; U.S.Environmental Protection Agency(2137); 401 M Street, SW; Washington,DC 20460, by email [email protected], or bycalling (202) 260–2740. A copy may alsobe downloaded off the Internet at http://www.epa.gov/icr.

This proposed rule containsconcentration-based listings thatgenerators would be self-implementing.Under the concentration-based listings,a generator of wastes that fall within theK167 or K168 listing descriptions mustcomply with waste analysisrequirements if it wants to determinethat its waste is nonhazardous. Theserequirements are necessary to ensurethat the levels of selected constituentsin the wastes are below the regulatorylevels of concern.

The Agency estimated the worst-caseburden associated with complying withthe requirements in this proposed rule.In 1992, the most recent year for whichconsistent data are available, there werereportedly 80 dye and pigment facilities(Industrial Organic Chemicals,Manufacturers-Industry Series, CensusBureau, Department of Commerce,1992). Because of businessconfidentiality concerns in using theactual number of facilities that reportedgenerating wastes that fall within theK167 or K168 listing descriptions, EPAassumed that all 80 facilities generatethese wastes. In addition, EPA assumed

that all 80 facilities would analyze theirwastes and find the wastes to behazardous. Under such assumptions, allof these 80 facilities, as well assubsequent handlers, would need tomanage and dispose of the wastes underRCRA Subtitle C regulations.

The estimated worst-case burdenresults from the following requirementsfor industry respondents: reading theregulations; performing waste analysis,and incremental burden associated withcomplying with existing RCRAregulations. To the extent that this ruleimposes burden as incremental to theexisting RCRA regulations promulgatedin previous rulemakings, thoserequirements have been assigned OMBcontrol numbers 2050–0024 (ICR No.976.08, Hazardous Waste Report—Biennial Report); 2050–0039 (ICR No.801.12, Requirements for Generators,Transporters, and Waste ManagementFacilities under the Hazardous WasteManifest System); 2050–0120 (ICR No.1571.05, General Hazardous WasteFacility Standards); 2050–0085 (ICR No.1442.14, Land Disposal Restrictions);and 2050–0009 (ICR No. 1573.05, Part BPermit Application, PermitModifications and Special Permits).

EPA estimates that the total annualrespondent burden for all activities willbe 7,334 hours. The estimated total costfor all activities will be $508,605. Ifgenerators determine their wastes to benonhazardous after performing wasteanalysis, the proposed rule containssome new notification andrecordkeeping requirements. However,the information collection burdenassociated with these requirementswould not be expected to be greater thanif the generators determine their wastesto be hazardous.

Burden means the total time, effort, orfinancial resources expended by personsto generate, maintain, retain, or discloseor provide information to or for aFederal agency. This includes the timeneeded to review instructions; develop,acquire, install, and use technology andsystems for the purposes of collecting,validating, and verifying information,processing and maintaininginformation, and disclosing andproviding information; adjust theexisting ways to comply with anypreviously applicable instructions andrequirements; train personnel to be ableto respond to a collection ofinformation; search data sources;complete and review the collection ofinformation ; and transmit or otherwisedisclose the information.

An agency may not conduct orsponsor, and a person is not required torespond to a collection of informationunless it displays a currently valid OMB



control number. The OMB controlnumbers for EPA’s regulations are listedin 40 CFR Part 9 and 48 CFR Chapter15.

Comments are requested on theAgency’s need for this information, theaccuracy of the provided burdenestimates, and any suggested methodsfor minimizing respondent burden,including through the use of automatedcollection techniques. Send commentson the ICR to the Director, OPRegulatory Information Division; U.S.Environmental Protection Agency(2137); 401 M Street, SW; Washington,DC 20460; and to the Office ofInformation and Regulatory Affairs,Office of Management and Budget, 72517th Street, NW; Washington, DC 20503,marked ‘‘Attention: Desk Officer forEPA.’’ Include the ICR number in anycorrespondence. Since OMB is requiredto make a decision concerning the ICRbetween 30 and 60 days after July 23,1999, a comment to OMB is best assuredof having its full effect if OMB receivesit by August 23, 1999. The final rulewill respond to any OMB and publiccomments on the information collectionrequirements contained in this proposal.

List of Subjects

40 CFR Part 148

Administrative practice andprocedure, Hazardous wastes, Reportingand recordkeeping requirements, Watersupply.

40 CFR Part 261

Environmental protection, Hazardouswaste, Recycling, Reporting andrecordkeeping requirements.

40 CFR Part 268

Environmental protection, Hazardouswaste, Reporting and recordkeepingrequirements.

40 CFR Part 271

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

40 CFR Part 302

Environmental protection, Airpollution control, Chemicals,Emergency Planning and Community

Right-to-Know Act, Hazardoussubstances, Hazardous waste,Intergovernmental relations, Naturalresources, Reporting and recordkeepingrequirements, Superfund, Waterpollution control, Water supply.

Dated: June 30, 1999.Carol M. Browner,Administrator.

For the reasons set out in thepreamble, title 40, chapter I of the Codeof Federal Regulations is proposed to beamended as follows:

PART 148—HAZARDOUS WASTEINJECTION RESTRICTIONS

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

Authority: Secs. 3004, ResourceConservation and Recovery Act, 42 U.S.C.6901 et seq.

2. Section 148.18 is amended byadding paragraphs (j) and (k) to read asfollows:

§ 148.18 Waste specific prohibitions—newly listed and identified wastes.

* * * * *(j) Effective [date six months after date

of final rule], the wastes specified in§ 261.32 of this chapter as EPAHazardous Waste Numbers K167 andK168 are prohibited from undergroundinjection.

(k) The requirements of paragraphs (a)through (j) of this section do not apply:

(1) If the wastes meet or are treated tomeet the applicable standards specifiedin Subpart D of part 268 of this chapter;or

(2) If an exemption from a prohibitionhas been granted in response to apetition under Subpart C of this part; or

(3) During the period of extension ofthe applicable effective date, if anextension has been granted under§ 148.4.

PART 261—IDENTIFICATION ANDLISTING OF HAZARDOUS WASTE

3. The authority citation for Part 261continues to read as follows:

Authority: 42 U.S.C. 6905, 6912(a), 6921,6922, 6924(y), and 6938.

4. Section 261.4 is amended byrevising paragraph (b)(15) to read asfollows.

§ 261.4 Exclusions.

* * * * *

(b) * * *(15) Leachate or gas condensate

collected from landfills where certainsolid wastes have been disposed,provided that:

(i) The solid wastes disposed wouldmeet one or more of the listingdescriptions for Hazardous Waste CodesK167, K168, K169, K170, K171, andK172 if these wastes had been generatedafter the effective date of the listing;

(ii) The solid wastes described inparagraph (b)(15)(i) of this section weredisposed prior to the effective date ofthe listing;

(iii) The leachate or gas condensate donot exhibit any characteristic ofhazardous waste nor are derived fromany other listed hazardous waste;

(iv) Discharge of the leachate or gascondensate, including leachate or gascondensate transferred from the landfillto a POTW by truck, rail, or dedicatedpipe, is subject to regulation undersections 307(b) or 402 of the CleanWater Act;

(v) After February 13, 2001, leachateor gas condensate derived from K169–K172 will no longer be exempt if it isstored or managed in a surfaceimpoundment prior to discharge. After[date 24 months after publication date ofthe final rule], leachate or gascondensate derived from K167–K168will no longer be exempt if it is storedor managed in a surface impoundmentprior to discharge. There is oneexception: if the surface impoundmentis used to temporarily store leachate orgas condensate in response to anemergency situation (e.g., shutdown ofwastewater treatment system), providedthe impoundment has a double liner,and provided the leachate or gascondensate is removed from theimpoundment and continues to bemanaged in compliance with theconditions of this paragraph (b)(15) afterthe emergency ends.* * * * *

5. Section 261.32 is amended bydesignating the introductory text andthe table as paragraph (a) and byamending the newly designated table byadding a new subgroup ‘‘Organic dyesand pigments’’ and it’s entries at the endof the table and by adding paragraphs(b) and (c) to read as follows.

§ 261.32 Hazardous wastes from specificsources.

(a) * * *



Industry and EPA hazard-waste No. Hazardous waste Hazardous

code

* * * * * * *Organic dyes and pig-

ments:K167 .......................... Spent filter aids, diatomaceous earth, or adsorbents used in the production of azo, anthraquinone, or

triarylmethane dyes, pigments, or FD&C colorants, unless these wastes do not contain any of theconstituents identified in paragraph (b)(3)(iii) of this section at a concentration equal to or greaterthan the hazardous level set for that constituent as demonstrated by the procedures specified inparagraph (b) of this section.

(T)

K168 .......................... Wastewater treatment sludges from the production of triarylmethane dyes and pigments (excluding tri-arylmethane pigments using aniline as a feedstock), unless these wastes do not contain any of theconstituents identified in paragraph (b)(3)(iii) of this section at a concentration equal to or greaterthan the hazardous level set for that constituent as demonstrated by the procedures specified inparagraph (b) of this section.

(T)

(b) Procedures for determiningpotential K167 and K168 wastes to benonhazardous. A generator of wastesthat fall within the K167 or K168 listingdescriptions must use the followingwaste analysis and handling proceduresif it wants to determine that its waste isnonhazardous. If the procedures arecompleted and the waste is determinedto be nonhazardous within 60 days of[the effective date of the final rule], orwithin 60 days after the waste is firstgenerated, then all of the wastegenerated after the effective date or thefirst generation date is nonhazardous(assuming the levels of the relevantconstituents identified in paragraph(b)(3)(iii) of this section are in factbelow the listing levels). If thedetermination is made more than 60days after [the effective date of the finalrule] or 60 days after the waste is firstgenerated, the determination will notbecome effective until the date thegenerator receives a written receipt orconfirmation (e.g., Registered Mail ordelivery service receipt) that itsnotification and certification has beendelivered to the EPA. After the generatorhas received this receipt orconfirmation, any waste generated on orafter the generation date of the wastethat was analyzed for the hazardousnessdetermination is nonhazardous(assuming the levels of the relevantconstituents identified in paragraph(b)(3)(iii) of this section are in factbelow the listing levels). Any wastegenerated prior to that generation dateremains hazardous.

(1) Initial waste analysis. The wastegenerator must collect a minimum of 4representative samples of the waste as-generated and analyze it for theconstituents identified in the applicablelist under paragraph (b)(3)(iii) of thissection. Instead of analyzing for aconstituent, the generator may alsoapply knowledge of the constituents inthe wastes based on the materials and

processes used to document that aconstituent is not present in the waste.

(2) Waste holding and handling. Thewaste generator must store the wasteuntil a hazardous waste listingdetermination is completed as specifiedin the condition in paragraph (b)(3) ofthis section. The waste must be storedin containers, or in another manner thatdoes not involve land placement.

(3) Hazardous or nonhazardous wastelisting determination for waste as-generated. The waste generator,following an initial waste analysis, mustmake a hazardous or nonhazardousdetermination for the waste as-generatedbased on the data obtained from theinitial waste analysis.

(i) Hazardous determination. If any ofthe waste sampled contains any of theconstituents in the applicable list underparagraph (b)(3)(iii) of this section at aconcentration equal to or greater thanthe hazardous level set for thatconstituent, the waste is a listedhazardous waste and subject to allapplicable RCRA Subtitle C hazardouswaste requirements.

(ii) Nonhazardous determination. Ifnone of the waste sampled contains anyof the constituents in the applicable listunder paragraph (b)(3)(iii) of thissection at concentrations equal to orgreater than the hazardous levels set forthese constituents, the waste isdetermined to be nonhazardous andsubject only to notification andrecordkeeping requirements describedin paragraph (c) of this section.

(iii) Hazardous (listing) levels. Allconcentrations in the waste sample(s)for constituents identified in thisparagraph (b)(3)(iii) that are equal to orgreater than the following levels:

CONSTITUENT LEVELS FOR K167 (MG/KG)

[Levels are not included due to businessconfidentiality concerns]

AnilineBenzaldehyde

CONSTITUENT LEVELS FOR K167 (MG/KG)—Continued

[Levels are not included due to businessconfidentiality concerns]

p-Chloroanilinep-CresolN,N–Dimethylaniline3,3′–DimethoxybenzidineDiphenylamine1,2–DiphenylhydrazineFormaldehydeNaphthalenePhenolp-Phenylenediamineo-Toluidinep-Toluidine

[Other constituent(s) not included due tobusiness confidentiality concerns]

CONSTITUENT LEVELS FOR K168 (MG/KG)

Benzaldehyde ........................... 5000Dimethylamine, N,N- ................ 300Diphenylamine .......................... 27000Formaldehyde ........................... 7000Toluidine, o- .............................. 13Toluidine, p- .............................. 23

[Constituent not included due to businessconfidentiality concerns]

(4) Hazardous or nonhazardous wastelisting determination for wastes aftertreatment. If a waste that has beendetermined to be a K167 or K168 listedhazardous waste is treated to belowhazardous levels, the waste generator ortreater may make a determination thatthe residue of the treatment process isnonhazardous by applying the processset forth for wastes as-generated inparagraphs (b)(1) through (b)(3) of thissection to the treated waste. Theeffective date of when the residuebecomes nonhazardous will be the datewhen the waste generator or treaterreceives a return receipt or confirmationthat the notification and certificationsubmitted has been delivered to EPA.However, the residue remains subject tothe LDR treatment standards for K167 orK168 as appropriate.



(5) Follow-up analysis. The wastegenerator must collect and analyze aminimum of one representative sampleof the nonhazardous waste everycalendar year it is generated. The wastegenerator must also analyze a minimumof one representative sample of thenonhazardous waste anytime, after theinitial waste analysis, there is a processchange that may increase theconcentration of hazardous constituentsin the waste. If process change has notoccurred, the waste generator may usethe results of the initial waste analysisto create a more tailored list ofconstituents for follow-up analysis. Iffollow-up analysis (or any analysis ofyour waste after the initial wasteanalysis) shows that any of the wastesampled contains any of theconstituents in the applicable list underparagraph (b)(3)(iii) of this section at aconcentration equal to or greater thanthe hazardous level set for thatconstituent, the waste is a listedhazardous waste and subject to allapplicable RCRA Subtitle Crequirements. In order to determine thewaste nonhazardous again, the wastegenerator or treater must apply all of theprocedures in paragraphs (b)(1) through(b)(3) or paragraph (b)(4) of this sectionto the waste.

(c) Notification and recordkeepingrequirements for wastes determined tobe nonhazardous. These requirementsapply only for wastes that have beendetermined to be nonhazardous basedon the procedures described inparagraph (b) of this section. The wastegenerator must meet the followingnotification and recordkeepingrequirements prior to disposing anywastes as nonhazardous.

(1) Submit notification. The wastegenerator claiming that its waste isnonhazardous must submit a one-timenotification to EPA (by mail or deliveryservice which provides return receipt)within 60 days following [the effectivedate of the final rule] or initialgeneration of the waste. The notificationmust include the waste generator’sname and address, a representative’sname and telephone number,description of the waste and potentialwaste code, and an estimate of theaverage annual volume of waste claimedto be nonhazardous. The notificationmust also include a certification signedby an authorized representative andmust state as follows:

I certify under penalty of law that none ofthe waste sampled contains any of theconstituents of concern identified for thiswaste at concentrations equal to or greaterthan the hazardous concentration levels set

for these constituents, and that these levelswere determined without dilution of thewaste. Based on information and beliefformed after reasonable inquiry, thestatements and information in the documentare true, accurate, and complete. I am awarethat there are significant penalties forsubmitting a false certification, including thepossibility of fine and imprisonment.

(2) Maintain records on-site. At aminimum, the waste generator isrequired to keep the followinginformation on site:

(i) A copy of the notification andcertification sent to EPA and returnreceipt.

(ii) The sampling and analysis planused for collecting and analyzingrepresentative sample(s) of the waste.

(iii) The initial sampling and analysesdata and process knowledge information(if used) that support a nonhazardousclaim for the waste.

(iv) All follow-up sampling andanalyses data and process knowledgeinformation (if used) for the most recentthree years.

6–7. Appendix VII to Part 261 isamended by adding the following wastestreams entries in alphanumeric order(by the first column) to read as follows:

Appendix VII to Part 261—Basis forListing Hazardous Waste

EPA hazardouswaste No. Hazardous constituents for which listed

* * * * * * *K167 ......................... Aniline, benzaldehyde, p-chloroaniline, p-cresol, N,N-dimethylaniline, 3,3-dimethoxybenzidine, diphenylamine, 1,2-

diphenylhydrazine, formaldehyde, naphthalene, phenol, p-phenylenediamine, o-toluidine, o-toluidine, and other constitu-ents not included due to business confidentiality concerns.

K168 ......................... Benzaldehyde, N,N-dimethylaniline, diphenylamine, formaldehyde, o-toluidine, p-toluidine, and other constituents not in-cluded due to business confidentiality concerns.

* * * * * * *

* * * * *

8. Appendix VIII to Part 261 is amended by adding the following waste streams entries in alphanumeric orderto read as follows.

Appendix VIII to Part 261—Hazardous Constituents

Common name Chemical abstracts name Chemical ab-stracts No.

Hazardouswaste No.

* * * * * * *Benzaldehyde ................................................................... Same ............................................................................... 100–52–7

* * * * * * *p-Cresol ............................................................................ Phenol, 3-methyl- ............................................................ 106–44–5 U052

* * * * * * *N,N–Dimethylaniline ......................................................... Benzenamine, N,N-dimethyl- .......................................... 121–69–7

* * * * * * *p-Phenylenediamine ......................................................... Benzenediamine, 1,4- ..................................................... 106–50–3

Identity of other constituent(s) not included due to busi-ness confidentiality concerns.



Common name Chemical abstracts name Chemical ab-stracts No.

Hazardouswaste No.

* * * * * * *

PART 268—LAND DISPOSALRESTRICTIONS


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

10. Section 268.32 is added to subpartC to read as follows:

§ 268.32 Waste specific prohibitions—dyeand pigment wastes.

(a) Effective [date 6 MONTHS fromdate of publication of final rule], thefollowing wastes are prohibited fromland disposal: the wastes specified inpart 261 of this chapter as EPA

Hazardous Waste Numbers K167 andK168, soil and debris contaminated withthese wastes, radioactive wastes mixedwith these hazardous wastes, and soiland debris contaminated with theseradioactive mixed wastes.

(b) The requirements of paragraph (a)of this section do not apply if:

(1) The wastes meet the applicabletreatment standards specified in subpartD of this part;

(2) Persons have been granted anexemption from a prohibition pursuantto a petition under § 268.6, with respectto those wastes and units covered by thepetition;

(3) The wastes meet the applicablealternate treatment standards

established pursuant to a petitiongranted under § 268.44; or

(4) Persons have been granted anextension to the effective date of aprohibition pursuant to § 268.5, withrespect to these wastes covered by theextension.

11. Section 268.40 is amended byadding K167 and K168 in alphanumericorder to the Table of TreatmentStandards to read as follows: (Thefootnotes are republished withoutchange.)

§ 268.40 Applicability of treatmentstandards.

* * * * *

TREATMENT STANDARDS FOR HAZARDOUS WASTES

[Note: NA means not applicable]

Waste code Waste description and treatment/regulatory sub-category 1

Regulated hazardousconstituent

Wastewaters Nonwaste-waters

Commonname

CAS 2

No.

Concentration in mg/l 3, or technologycode 4

Concentra-tion in mg/kg 5 unlessnoted as

‘‘mg/lTCLP’’, ortechnology

code

* * * * * * *K167 ............ Spent filter aids, diatomaceous earth, or adsorb-

ents used in the production of azo,anthraquinone, or triarylmethane dyes, pig-ments of FD&C colorants.

NA .......... NA .......... (WETOX or CHOXD) fb CARBN: orCMBST.

CMBST.

K168 ............ Wastewater treatment sludges from the produc-tion of triarylmethane dyes and pigments (ex-cluding triarylmethane pigments using anilineas a feedstock).

NA .......... NA .......... (WETOX or CHOXD) fb CARBN: orCMBST.

CMBST.

* * * * * * *

Footnotes to Treatment Standard Table 268.401 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, SubpartO or part 265 Subpart O, or based upon combustion in fuel substitution units operating in accordance with applicable technical requirements. Afacility may comply with these treatment standards according to provisions in 40 CFR 268.40(d). All concentration standards for nonwastewatersare based on analysis of grab samples.

* * * * * PART 271—REQUIREMENTS FORAUTHORIZATION OF STATEHAZARDOUS WASTE PROGRAMS


Authority: 42 U.S.C. 6905, 6912(a), and6926.

Subpart A—Requirements for FinalAuthorization

13. Section 271.1(j) is amended byadding the following entry to Table 1 in



chronological order by date ofpublication in the Federal Register, andby adding the following entry to Table

2 in chronological order by effectivedate, to read as follows.

§ 271.1 Purpose and scope.

* * * * *(j) * * *

TABLE 1.—REGULATIONS IMPLEMENTING THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984

Promulgation date Title of regulation Federal Register reference Effective date

* * * * * * *[Date of publication in the Federal

Register of final rule].Dye and Pigment Production

Waste Listing.[Federal Register page numbers

for final rule].[Effective date of final rule].

* * * * * * *

* * * * *

TABLE 2.—SELF-IMPLEMENTING PROVISIONS OF THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984

Effective date Self-implementing provision RCRA citation Federal Register reference

* * * * * * *[Effective date of final rule] Prohibition on land disposal of K167 and K168 wastes,

and prohibition on land disposal of radioactive wastemixed with K167 and K168 wastes, including soiland debris.

3004(g)(4)(C) and 3004(m) [Date of publication of finalrule], [FR page num-bers].

* * * * * * *

PART 302—DESIGNATION,REPORTABLE QUANTITIES, ANDNOTIFICATION


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

15. In § 302.4, table 302.4 is amendedby adding the following new entries in

alphanumerical order at the end of thetable to read as follows:

§ 302.4 Designation of hazardoussubstances.

* * * * *

TABLE 302.4.—LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE QUANTITIES

[Note: All comments/notes are located at the end of this table]

Hazardous substance CASRN Regulatorysynonyms

Statutory Final RQRQ

RQ Code† RCRAwaste No. Category Pounds (Kg)

* * * * * * *K167 Spent filter aids, diatomaceous earth,

or adsorbents used in the production ofazo, anthraquinone, or triarylmethanedyes, pigments or FD&C colorants.

.................... .................... 1 * 4 K167 .................... ##

K168 Wastewater treatment sludges fromthe production of triarylmethane dyes andpigments (excluding triarylmethane pig-ments using aniline as a feedstock).

.................... .................... 1 * 4 K168 .................... ##

† Indicates the statutory sources as defined by 1, 2, 3, and 4 below.* * * * * * *4—Indicates that the statutory source for designation of this hazardous substance under CERCLA is RCRA Section 3001.1*—Indicates that the 1-pound RQ is a CERCLA statutory RQ.* * * * * * *##—The Agency may adjust the statutory RQ for this hazardous substance in a future rulemaking; until then the statutory RQ applies.* * * * * * *

[FR Doc. 99–17495 Filed 7–22–99; 8:45 am]BILLING CODE 6560–50–P


40192 federal register /vol. 64, no. 141/friday, july 23 ... · 40192 federal register/vol. 64, no....

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