Friday
July 23, 1999
Part VI
s s
Environmental
Protection Agency
40 CFR Parts 148, 261 et al.
Hazardous Waste Management System;
Identification and Listing of Hazardous
Waste; Dye and Pigment Industries; Land
Disposal Restrictions for Newly Identified
Wastes; CERCLA Hazardous Substance
Designation and Reportable Quantities;
Proposed Rule
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Federal Register/Vol. 64, No. 141/Friday, July 23, 1999/Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 148,261,268,271, and
302
[SWH-FRL-6373-4]
RIN 205G-AD80
Hazardous Waste Management
System; Identification and Listing of
Hazardous Waste; Dye and Pigment
Industries; Land Disposal Restrictions
for Newly Identified Wastes; CERCLA
Hazardous Substance Designation and
Reportable Quantities
AGENCY: Environmental protection
agency (EPA).
ACTION: Notice of Proposed Rulemaking.
SUMMARY: The EPA is proposing to list
two of three wastes from the dyes and
pigment industries as hazardous wastes
under the Resource, Conservation, and
Recovery Act (RCRA), which direct EPA
to determine whether certain wastes
from the dye and pigment industries
present a hazard to human health or the
environment. The effect of listing these
wastes will be to subject them to
stringent management and treatment
standards and to emergency notification
requirements if there are releases of
these hazardous wastes to the
environment. EPA is proposing
concentration-based listings for the two
wastes, such that waste generators have
the option of determining that their
specific waste is nonhazardous. To have
their waste classified as nonhazardous,
generators must determine the levels of
constituents in their wastes, and certify
to EPA that their wastes are below the
regulatory levels of concern.
DATES: EPA will accept public
comments on this proposed rule until
September 21, 1999; comments
postmarked after this date will be
marked "late" and may not be
considered. Any person may request a
public hearing on this proposal by filing
a request with Mr. David Bussard,
whose address appears below, by
August 6.1999.
ADDRESSES: If you wish to comment on
this proposed rule, you must send an
original and two copies of the comments
referencing docket number F-1999-
DPIP-FFFFF to: RCRA Docket
Information Center, Office of Solid
Waste (5305G), U.S. Environmental
Protection Agency Headquarters (EPA,
HQ), 401 M Street, SW, Washington, DC
20460. Hand deliveries of comments
should be made to the Arlington, VA,
address listed below. You may also
submit comments electronically by
sending electronic mail through the
Internet to: rcradocket@epamail.epa.gov.
See the beginning of Supplementary
Information for instructions on
electronic submission.
You should not submit electronically
any confidential business information
(CBI). You must submit an original and
two copies of CBI under separate cover
to: RCRA CBI Document Control Officer,
Office of Solid Waste (5305W), U.S.
EPA, 401 M Street, SW, Washington, DC
20460. See the beginning of
Supplementary Information for
information of viewing public
comments 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 Protection
Agency 401 M Street, SW, Washington,
DC 20460, (703)308-8880.
FOR FURTHER INFORMATION CONTACT: For
general information, contact the RCRA
Hotline at (800) 424-9346 or TDD (800)
553-7672 (hearing impaired). In the
Washington, DC, metropolitan area, call
(703) 412-9810 or TDD (703) 412-3323.
For information on specific aspects of
the rule, contact Narendra Chaudhari or
Robert Kayser, Office of Solid Waste
(5304W), U.S. Environmental Protection
Agency, 401 M Street, SW, Washington,
DC 20460. [E-mail addresses and
telephone numbers:
chaudhari.narendra@epamail.epa.gov,
(703) 308-0454;
kayser.robert@epamail.epa.gov, (703)
308-7304)].
SUPPLEMENTARY INFORMATION : You
should identify comments in electronic
format with the docket number F-1999-
DPIP-FFFFF. You must submit all
electronic comments as an ASCII (text)
file, avoiding the use of special
characters and any form of encryption.
If you do not submit comments
electronically, EPA is asking
prospective commenters to voluntarily
submit one additional copy of their
comments on labeled personal computer
diskettes in ASCII (text) format or a
word processing format that can be
converted to ASCII (text). It is essential
to specify on the disk label the word
processing software and version/edition
as well as the commenter's name. This
will allow EPA to convert the comments
into one of the word processing formats
utilized by the Agency. Please use
mailing envelopes designed to
physically protect the submitted
diskettes. EPA emphasizes that
submission of comments on diskettes is
not mandatory, nor will it result in any
advantage or disadvantage to any
commenter. Supporting documents in
the docket for this Notice are also
available in electronic format on the
Internet. Follow these instructions to
access these documents.
WWW: http://www.epa.gov/epaoswer/
hazwaste/id
FTP: ftp.epa/gov
Login: anonymous
Password: your Internet address
Files are located in /pub/gopher/
OSWRCRA.
EPA will keep the official record for
this action in paper form. Accordingly,
we will transfer all comments received
electronically into paper form and place
them in the official record, which will
also include all comments submitted
directly in writing. The official record is
the paper record maintained at the
address in ADDRESSES at the beginning
of this document.
EPA responses to comments, whether
the comments are written or electronic,
will be in a notice in the Federal
Register or in a response to comments
document placed in the official record
for this rulemaking. We will not
immediately reply to commenters
electronically other than to seek
clarification of electronic comments that
may be garbled in transmission or
during conversion to paper form, as
discussed above.
You may view public comments and
supporting materials in the RCRA
Information Center (RIC), located at
Crystal Gateway I, First Floor, 1235
Jefferson Davis Highway, Arlington, VA.
The RIC is open from 9 a.m. to 4 p.m.,
Monday through Friday, excluding
federal holidays. To review docket
materials, we recommend that you make
an appointment by calling (703) 603-
9230. You may copy a maximum of 100
pages from any regulatory docket at no
charge. Additional copies cost $0.15/
page. For information on accessing
paper and/or electronic copies of the
document, see the SUPPLEMENTARY
INFORMATION section.
How Can I Influence EPA's Thinking on
This Proposed Rule?
In developing this proposal, we tried
to address the concerns of all our
stakeholders. Your comments will help
us improve this rule. We invite you to
provide different views on options we
propose, new approaches we haven't
considered, new data, how this
proposed rule may effect you, or other
relevant information. We welcome your
views on all aspects of this proposed
rule, but request comments on specific
issues throughout this notice. We
grouped these specific requests near the
end of the sections in which we discuss
the relevant issues. Your comments will
be most effective if you follow the
suggestions below:
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40193
• Explain your views and reasoning
as clearly as possible.
• Provide solid technical and cost
data to support your views.
• If you estimate potential costs,
explain how you arrived at the estimate.
• Tell us which parts you support, as
well as those with which you disagree.
• Provide specific examples to
illustrate your concerns.
• Offer specific alternatives.
• Refer your comments to specific
sections of the proposal, such as the
units or page numbers of the preamble,
or the regulatory sections.
• Be sure to include the name, date,
and docket numbeF with your
comments.
Contents of This Proposed Rule
The following outline lists the
contents of the preamble to this
proposed rule:
I. Overview
A. Who Would Potentially be Affected by
This Proposed Rule?
B. Why Does This Proposed Rule Read
Differently From Other Listing Rules?
C. What Are the Statutory Authorities for
This Proposed Rule?
n. Background
A. How Does EPA Define a Hazardous
Wastes?
B. What Industries Are Covered in This
Proposed Rule?
C. Confidential Business Information (CBI)
Issues Regarding This Rule
D. What Wastes Are Covered in Today's
Proposed Rule?
E. What Information Did EPA Collect and
Use?
HI. Approach Used in This Proposed Listing
A. Summary of Today's Action
B. 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
Regulations
A. 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-Based
Listings
A. Do I Have to Determine Whether or Not
My Waste Is Hazardous?
B. How Do I Manage My Waste During the
Period Between the Effective Date of the
Final Rule and Initial Hazardous Waste
Determination for My Waste?
C. What Are the Steps I Must Follow to
Determine Whether or Not My Waste Is
Hazardous?
D. What Are the Requirements for a Waste
Determined to be Nonhazardous, and
How Do I Claim My Waste to Be
Nonhazardous?
E. What Records Am I Required to Keep
On-site to Support a Nonhazardous
Claim for My Waste?
F. What Happens if I Do Not Meet the
Notification and Recordkeeping !
Requirements for a Waste That I Have
Determined to be Nonhazardous?
G. What Are the Follow-up Waste Analysis
Requirements for My Nonha-zardous
Waste?
H. What Happens If My Waste Constituent
Concentrations Are No Longer Below the
Listing Concentrations?
I. Can I Treat My Waste to Below Listing
Concentrations and Then Claim My
Waste to Be Nonhazardous?
J. Alternative Implementation Approach
VT. Proposed Treatment Standards Under
RCRA's Land Disposal Restrictions
A. What are EPA's Land Disposal
Restrictions (LDRs)?
B. How Does EPA Develop LDR Treatment
Standards?
C. What Treatment Standards Are
Proposed?
D. Other LDR-Related Provisions
E. Is There Treatment and Management
Capacity Available for These Proposed
Newly Identified Wastes
VII. State Authority and Compliance
A. 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 Transporters
Have to Do?
E. Which Facilities Are Subject to
Permitting?
VUL CERCLA Designation and Reportable
Quantities
A. What Is the Relationship Between RCRA
and CERCLA?
B. Is EPA Proposing to Add Dye and
Pigment Production Wastes to CERCLA?
C. Is EPA Proposing to Adjust the Statutory
One Pound RQ for K167 and K168
Wastes?
D. When Do I Need to Report a Release of
K167 and K168 Wastes Under CERCLA?
E. How Do I Report a Release?
F. What Is the Statutory Authority for This
Program?
DC. 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 Proposed
Rule?
F. What Are the Potential Benefits From
the Proposed Rule?
G. What Consideration Was Given to Small
Entities?
H. What Consideration Was Given to
Children's Health?
I. What Consideration Was Given to
Environmental Justice?
J. What Consideration Was Given to
Unfunded Mandates?
K. What Consideration Was Given to Tribal
Governments Analysis?
L. Was the National Technology Transfer
and Advancement Act Considered?
M. How is the Paperwork Reduction Act
Considered in Today's Proposal?
I. Overview
A. Who Would Potentially Be Affected
by This Proposed Rule?
The action, if finalized, could
potentially affect those who handle the
waste streams proposed for listing on
EPA's RCRA list of hazardous wastes.
This action may also affect entities that
may need to respond to releases of these
wastes as CERCLA hazardous
substances. Those affected may include:
Category
Affected entities
Industry
State, Local, Tribal Govt.
Federal Govt
Generators of the following listed wastes, or entities that treat, store, transport or dispose of
these, wastes or materials derived from them.
K167 Spent filter aids, diatomaceous earth, or adsorbents used in the production of azo
anthraiquinone, or triarylmethane dyes, pigments, or FD&C colorants.
K168 Wastewater treatment sludges from the production of triarylmethane dyes and piq-
ments (excluding triarylmethane pigments using aniline as a feedstock).
State and Local Emergency Planning entities.
National Response Center, and any Federal Agency that handle the listed waste or chemical
We do not intend this table to be
exhaustive, but rather our aim is to
provide a guide for readers regarding
entities likely to be regulated by this
action. This table lists those entities that
EPA now is aware potentially could be
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affected by this action. However, this
action may affect other entities not
listed in the table. To determine
whether your facility is regulated by this
action, you should examine 40 CFR
parts 260 and 261 carefully in concert
with the amended rules found at the
end of this Federal Register document.
Furthermore, we are proposing this rule
as a concentration-based listing, such
that waste generators have the option of
determining that their specific waste is
nonhazardous (see Sections IV and V of
today's rule). If you have questions
regarding the applicability of this action
to a particular entity, consult the person
listed in the preceding section entitled
FOR FURTHER INFORMATION CONTACT.
B. Why Does This Proposed Rule Read
Differently From Other Listing Rules?
Today's proposed listing
determination preamble and regulations
are written in "readable regulations"
format. The authors tried to use active
rather than passive voice, plain
language, a question-and-answer format,
the pronouns "we" for EPA and "you"
for the owner/generator, and other
techniques to make the information in
today's proposed rule easier to read and
understand. This new format is part of
the Agency's efforts at regulatory
reinvention, and it makes today's
proposed rule read differently from
other listing rules. The Agency believes
that this new format will increase
readers' abilities to understand the
regulations, which should then increase
compliance, make enforcement easier,
and foster better relationships between
EPA and the regulated community.
All of the requirements found in
today's proposed regulations would
constitute binding, enforceable legal
requirements. The plain language format
used in today's proposed regulations
may appear different from other rules,
but it would establish binding,
enforceable legal requirements just as
those in the existing regulations.
C. What Are the Statutory Authorities
for This Proposed rule?
EPA is proposing these regulations
under the authority of Sections 2002(a),
3001 (a), (b) and (e)(2), 3004 (g) and (m),
and 3007(a) of the Solid Waste Disposal
Act (commonly referred to as RCRA), as
amended by the Hazardous and Solid
Waste Amendments of 1984 (HSWA).
These statutes are codified in Volume
42 of the United States Code (U.S.C.),
sections 6901 to 6992(k).
Section 102(a) of the Comprehensive
Environmental Response,
Compensation, and Liability Act of 1980
(CERCLA). 42 U.S.C. 9602(a), is the
authority for the CERCLA aspects of this
proposed rule.
n. Background
A. How Does EPA Define a Hazardous
Waste?
EPA's regulations establish two ways
of identifying wastes as hazardous
under RCRA. Wastes may be hazardous
either if they exhibit certain properties
("characteristics"), or if the wastes are
included on a specific list of wastes EPA
has determined are hazardous ("listing"
a waste as hazardous). EPA's regulations
in the Code of Federal Regulations (40
CFR) §§261.20 through 261.24 define
characteristic wastes. These regulations
classify wastes that exhibit certain
properties as having the characteristic of
ignitability, corrosivity, reactivity, or
toxicity. As a generator, you must
identify wastes as characteristic wastes
by sampling a waste, or by using
appropriate company records
concerning the nature of the waste, to
determine whether a waste has the
relevant properties (see §262.11 (c)).
There is no regulatory requirement to
conduct sampling, but persons
improperly managing materials that are
found to be characteristic hazardous
wastes are subject to enforcement
actions under RCRA.
EPA may "list" wastes as hazardous
if we conclude that the waste is capable
of posing a substantial present or
potential hazard to human health or the
environment when improperly
managed. We have established criteria
for listing a hazardous waste at 40 CFR
261.11 (a) (3) for wastes that contain
hazardous constituents identified in
Appendix VHI of 40 CFR part 261. In
deciding whether a wastes poses a
substantial hazard, we consider the
factors given in §261.11 (a) (3). We place
constituents in Appendix VIII if
scientific studies have shown a
chemical has toxic effects on life forms
(see 261.11 (a) (3)). When listing a waste,
we also add the hazardous constituents
that serve as the basis for listing to
Appendix VH to part 261.
The regulations at 40 CFR 261.31
through 261.33 contain the various
hazardous wastes the Agency has listed
to date. Section 261.31 lists wastes
generated from non-specific sources,
known as "F-wastes," and contains
wastes that are usually generated by
various industries or types of facilities,
such as "wastewater treatment sludges
from electroplating operations" (see
code F006). Section 261.32 lists
hazardous wastes generated from
specific industry sources, known as "K-
wastes," such as "Spent potliners from
primary aluminum production" (see
code K088). Section 261.33 contains
lists of commercial chemical products
and other materials that become
hazardous wastes, known as "P-wastes"
or "U-wastes," when they are discarded
or intended to be discarded.
The proposed regulations in today's
notice would list wastes from a specific
industry and thus these wastes would
be added to § 261.32 with K-waste
codes. We are proposing to add
constituents that serve as the basis for
the proposed listings to Appendix VII,
Part 261. For the chemicals not already
listed on the list of Hazardous
Constituents in Appendix VIII, we are
also proposing to add these chemicals to
that list.
Wastes listed as hazardous are subject
to federal requirements under RCRA.
These regulations affect persons who
generate, transport, treat, store or
dispose of such waste. Facilities that
must meet the hazardous waste
management requirements, including
the need to obtain permits to operate,
commonly are referred to as Subtitle C
facilities. Subtitle C is Congress' original
statutory designation for that part of
RCRA that directs EPA to issue those
regulations for hazardous wastes as may
be necessary to protect human health or
the environment. EPA standards and
procedural regulations implementing
Subtitle C are found generally at 40 CFR
Parts 260 through 272.
Solid wastes that are not hazardous
wastes may be disposed of at facilities
that are overseen by state and local
governments. These are the so-called
Subtitle D facilities, which generally
impose less stringent requirements on
management of wastes. Subtitle D is
Congress* original statutory designation
for that part of RCRA that deals with
disposal of solid waste. EPA regulations
affecting Subtitle D facilities are found
generally at 40 CFR Parts 240 thru 247,
and 255 thru 258. Regulations for
Subtitle D landfills that accept
municipal waste ("municipal solid
waste landfills") are given in Part 258.
Residuals from the treatment, storage,
or disposal of most listed hazardous
wastes are also classified as hazardous
wastes based on the "derived-from" rule
(40 CFR 261.3(c)(2)(i)). For example, ash
or other residuals from treatment of the
listed wastes generally carry the original
waste code and are subject to the
hazardous waste regulations. Also, the
"mixture" rule (40 CFR 261.3 (a) (2) (iv))
provides that, with certain limited
exceptions, any mixture of a listed
hazardous waste and a solid waste is
itself a RCRA hazardous waste.
However, when these wastes are
recycled as described in 40 CFR
261.2(e)(l)(iii) or 261.4(a)(8), they are
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40195
not solid wastes and are not subject to
hazardous waste regulations. For
example, if a waste is collected and
returned in a closed-loop fashion to the
same process, the waste is not regulated.
All RCRA hazardous wastes are also
hazardous substances under the
Comprehensive Environmental
Response, Compensation, and Liability
Act (CERCLA), as described in section
101(14)(C) of the CERCLA statute. This
applies to wastes listed in 261.31
through 261.33, as well as any wastes
that exhibit a RCRA characteristic. Table
302.4 at 40 CFR 302.4 lists CERCLA
hazardous substances along with their
reportable quantities (RQs). Anyone
spilling or releasing a substance at or
above the RQ must report this to the
National Response Center, as required
in CERCLA Section 103. In addition,
Section 304 of the Emergency Planning
and Community Right-to-Know Act
(EPCRA) requires facilities to report the
release of a CERCLA hazardous
substance at or above its RQ to State and
local authorities. Today's rule proposes
to establish RQs for the newly listed
wastes. EPA is not taking action at this
time to adjust the one-pound statutory
RQs for the newly listed hazardous
substances.
B. What Industries Are Covered in This
Proposed Rule?
1. The Dye and Pigment Industries
Today's proposal applies to the
manufacturers of organic dyes and
pigments, and does not affect producers
of only inorganic dyes or pigments. We
have already issued final rules
governing the manufacturing of
inorganic pigments. Section 261.32
contains wastes codes K002 through
K008 that list wastewater treatment
sludges and other residues from the
production of inorganic pigments.
The organic dye and pigment
industries are comprised of three related
industries, dye manufacturers, pigment
manufacturers, and Food, Drug, and
Cosmetic (FD&C) colorant
manufacturers. Dyes are colored or
fluorescent organic substances which
impart color to a substrate. When a dye
is applied, it penetrates the substrate in
a soluble form, after which it may or
may not become insoluble. Dyes are
used to color fabrics, leather, paper, ink,
lacquers, varnishes, plastics, cosmetics,
and some food items. Dye manufacture
in the U.S. includes more than 2,000
individual dyes, the majority of which
are produced in quantities of less than
50,000 pounds. The U.S. International
Trade Commission's (USITC)
production data for 1994 showed total
production of approximately 156,000
tons for all organic dyes.
Organic pigments possess unique
characteristics that distinguish them
from dyes and other colorants. The
primary difference between pigments
and clyes is that, during the application
process, pigments are usually insoluble
in the substrate. Pigments also retain a
crystalline or particulate structure and
impart color by selective absorption or
by scattering of light. This is different
from dyes, which impart color by
selective absorption. Pigments are used
in a variety of applications; the primary-
use is in printing inks. There are fewer
pigments produced than dyes, though
pigment batches are generally larger in
size. The USITC publication, Industry
and Trade Summary: Synthetic Organic
Pigments, USITC (No. 3021, February
1997), indicates that the total U.S.
production was an estimated 71,500
tons of organic pigments in 1995,
FD&C colorants are dyes and
pigments that have been approved by
the Food and Drug Administration
(FDA) for use in food items, drugs, :and/
or cosmetics. Typically, FD&C colorants
are azo or triarylmethane dyes and ;are
similar or identical to larger-volume dye
products not used in food, drugs, and
cosmetics. Manufacture of FD&C
colorants is typically the same as that
for the corresponding dye or pigment,
except that the colorant undergoes
additional purification. Each FD&C'
colorant batch is tested and certified bv
the FDA.
2. Previous Regulations of Wastes From
This Industry
The 1984 Hazardous and Solid Waste
Amendments (HSWA) to RCRA require
EPA to make listing determinations for
wastes from the production of dyes and
pigments (see RCRA section 3001(e)(2)).
On June 1991 EPA entered into a
proposed consent decree in a lawsuit
filed by the Environmental Defense
Fund (EDFv. Browner, Civ. No. 89-0598
(D.D.C.), hereafter referred to as the
consent decree). The consent decree sets
out a series of deadlines for
promulgating RCRA listing decisions,
and has been amended as necessary.;
Paragraph Ih. of the consent decree
obligates EPA to determine whether or
not to list as hazardous certain wastes
from the production of dyes and
pigments.
In the consent decree EPA agreed to
examine wastes from the manufacture of
three classes of dyes and pigments for
regulation: azo/benzidine,
anthraquinone, and triarylmethane. The
agreement specifies that the listing
determination is to address wastes from
the azo, monoazo, diazo, triazo, polyazo,
azoic, and benzidine categories of the
azo/benzidine dye and pigment class;
the anthraquinone and perylene
categories of the anthraquinone dye and
pigment class; and the triarylmethane,
triphenylmethane, and pyrazolone
categories of the triarylmethane dye and
pigment class. The settlement agreement
also specifies that the listing
determination is to address the
following specific types of wastes where
they are found: spent catalysts, reactor
still overheads, vacuum system
condensate, process waters, spent
adsorbent, equipment cleaning sludge,
product mother liquor, product
standardization filter cake, dust
collector filter fines, recovery still
bottoms, treated wastewater effluent,
and wastewater treatment sludge.
Due to the market demand for a wide
variety of dye and pigment products, the
dye and pigment industries typically
operate successive batch processes
producing varying dye and pigment
products. These batch operations
generate a wide variety of solid wastes
on a periodic basis. These wastes
generally can be divided into two
general types: commingled wastes and
process-specific wastes. Commingled
wastes are wastes combined from
multiple processes prior to management
(e.g., wastewaters). Commingled wastes
include secondary wastes generated
from the treatment of other commingled
wastes (e.g., wastewater treatment
sludges). Process-specific wastes are
wastes that are unique to a specific •
process and may be managed
independently of one another (e.g.,
spent filter aids).
On December 22, 1994, EPA
published a notice that proposed listing
decisions for 11 of the wastes covered
in the consent decree. EPA deferred any
listing decisions on three other wastes
(See 59 FR 66072). As a result, EPA and
EDF amended the consent decree
(paragraph lh(v)) to establish deadlines
for promulgating listing decisions for
two of the deferred wastes. In today's
notice, EPA is proposing listing
determinations for all three of the
deferred wastes.
C. Confidential Business Information
(CBI) Issues Regarding This Rule
For the purpose of developing the
supporting data for listing rulemakings
for the dye and pigment industry, a
questionnaire was sent out to industry
pursuant to RCRA Section 3007. Some
of the information collected from
industry and used in the 1994 proposed
rule, as well as today's proposed rule,
was claimed as confidential. As a result
of a consent order and a subsequent
preliminary injunction in connection
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with a case brought by some of the dye
and pigment industry to prevent the
disclosure of;information claimed as
CBI. Magruder et al. v, U.S. EPA, Civ.
No. 94-5768 (D.N.J.), the EPA is
enjoined from disclosing information
claimed as confidential until all CBI
determinations have been made on the
data intended to be published in
connection with these proposed rules.
Therefore, as with the 1994 proposed
rule, we have removed information from
this preamble and rule (and supporting
background documents), if the
Information may disclose information
claimed as CBI. We note the missing
information in the text to this rule,
where appropriate. However, we have
included data that are not claimed as
CBI, whenever such data are available.
We have also included data that we
obtained from public or non-CBI
sources. Wherever we are unable to
include pertinent data in a table, the
following statement appears in a
footnote: "Relevant data are not
included at the present time due to
business confidentiality concerns."
At this time EPA expects that this rule
will also need some form of notice of
data availability (NODA) or reproposal
prior to promulgation as a final rule
because of CBI problems. However, EPA
is proceeding as noted above to allow
publication of as much of the proposed
rule as can be shared at this time. Thus,
commenters can see as much as possible
of EPA's current thinking and can
comment on the basic approach, the
implementation issues, and other
portions of the rule that can reasonably
be commented upon, even with the
current redactions. We intend to
supplement the public record prior to
issuing a final listing determination.
D. What Wastes Are Covered in Today's
Proposed Rule?
Today's proposal applies only to the
dye and pigment manufacturing
industries. The end-user markets for
dyes and pigments, which include
textiles, paper, leather, ink, paints,
coatings, plastics, fibers, and other low
volume markets, are not within the
scope of our listing determination.
Consistent with both HSWA
Amendments of 1984 and the consent
decree. EPA is only making proposed
determinations on wastes from the
production and manufacturing of dyes
and pigments.
In the 1994 proposed rule, the Agency
deferred action on three waste streams
based on insufficient characterization
data, or lack of health-based levels for
specific constituents of concern. The
"deferred" dye and pigment waste
streams are the subject of today's
proposed rule. The three deferred
wastes are:
• Spent filter aids, diatomaceous
earth, or adsorbents used in the
production of azo, anthraquinone, or
triarylmethane dyes, pigments, or FD&C
colorants.
• Wastewater treatment sludge from
the production of triarylmethane dyes
and pigments (excluding triarylmethane
pigments using aniline as a feedstock).
• Wastewater treatment sludge from
the production of anthraquinone dyes
and pigments.
This proposed rule will refer to these
wastes as "filter aids," "TAM sludges,"
and "anthraquinone sludges"
respectively. Brief descriptions of the
three wastes are given below.
Filter Aids
Manufacturers add filter aids (e.g.,
diatomaceous earth) to some reaction
processes to remove particulate
impurities. The spent filter aids then are
collected in a filter press and the press
cake, sometimes called a clarification
sludge, is disposed as waste. In some
cases, facilities also use filter aids
following completed reactions to clarify
and purify certain products. The Agency
grouped spent filter aids, diatomaceous
earth, and adsorbents used in the
production of all relevant classes of
dyes and pigments, because these
wastes typically contain unreacted raw
materials, by-products, and impurities.
The constituent composition of these
filter aids varies depending on the dye
or pigment produced and the raw
materials used. The Agency deferred a
determination as to whether to list Filter
Aids in 1994 due to insufficient waste
characterization data for this widely
variable waste (see 59 FR 66103).
TAM Sludges
As described in the 1994 proposed
rule, EPA evaluated wastes from the
production of TAM pigments that use
aniline as starting material ("feedstock")
separately from other TAM wastewaters
and wastewater treatment sludges. This
was because the process that uses
aniline as a feedstock is somewhat
different (see 59 FR 66081 and 66096).
We proposed listing decisions for
wastes from TAM pigments derived
from aniline in the 1994 notice, but
deferred a decision for wastewater
treatment sludge from the production of
TAM dyes and pigments that do not use
aniline. Today's proposed rule
addresses the wastewater treatment
sludges from production of TAM dyes
and pigments, excluding TAM pigments
using aniline as a feedstock.
The typical wastewater treatment
sludge 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 usually
include: neutralization to adjust pH,
clarification, and biological treatment.
Pretreatment sludges may be generated
from precipitation/filtration in
neutralization tanks, and from treatment
with adsorbents, such as activated
carbon. Biological treatment can also
lead to generation of a wastewater
treatment sludge. Sludge streams are
further processed, typically through
filtration and dewatering, prior to
disposal. Information related to the
management of TAM sludges is not
included due to business confidentiality
concerns.
In support of the 1994 proposed rule,
we attempted to sample TAM sludges
(from production of TAM pigments that
do not use aniline as a feedstock).
However, TAM dyes or pigments were
not being produced at the time EPA
collected its samples, and we could not
attribute any constituents detected to
TAM production. Thus, EPA deferred
any listing decision for sludges from the
production of TAM dyes and pigments
(excluding TAM pigments using aniline
as a feedstock) due to insufficient waste
characterization data (see 59 FR 66095).
Anthraquinone Sludges
The typical anthraquinone sludge is
generated via the treatment of process
wastewater similar to that described for
TAM sludges. From the data collected
for the 1994 proposed rule, the only
constituents detected in the waste that
we could attribute to anthraquinone
production did not have health-based
benchmarks. EPA was unable to identify
any appropriate surrogate compound of
known toxicity to estimate the toxicity
of these constituents. Because of the
lack of health-based benchmarks or
reliable surrogates, we deferred any
listing determination in the 1994
proposal. As part of the deferral, we
requested toxicity data or any suitable
surrogates for the two waste
constituents (see 59 FR 66101).
E. What Information Did EPA Collect
and Use?
1. The RCRA Section 3007 Survey
In support of the 1994 proposed rule,
EPA distributed a detailed RCRA
section 3007 survey to dye and pigment
manufacturing facilities in 1992. The
purpose of the questionnaire was to
collect information on the 12 specific
residuals identified in the 1991 consent
decree. Most questions in this survey
requested information on waste
generation and management activities in
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40197
1991. From data provided by
questionnaire respondents, EPA
identified facilities that manufacture
azo, anthraquinone, or triarylmethane
dyes or pigments (the number of
facilities is not included due to business
confidentiality concerns). In the
questionnaire, EPA collected
information regarding the products
manufactured at each facility, raw
materials and additives used, and 1991
production volumes. The questionnaire
also collected information on the
management of the wastes generated by
each facility, including waste quantity
and how the wastes were managed and
disposed.
EPA contacted companies generating
the three deferred wastes at issue in
today's proposed rule to update the
information in the 1992 §3007 survey.
The updated information EPA collected
includes the quantities of wastes
generated (for the year 1997), and the
waste management practices used by the
facilities for each of the wastes. The
Agency used this updated information
in its risk assessment, as described in
Section in.D. The following discussion
summarizes the information collected
for each waste.
Anthraquinone Sludges
In response to the 1992 questionnaire,
a number of dye and pigment
manufacturers reported generating
anthraquinone wastewater treatment
sludges. We are not including :
information on the number of facilities
generating this waste, nor the waste
quantities reported for 1991, due to
business confidentiality concerns. We
also cannot include information
collected by EPA in 1998 on the number
of generators and the quantities for 1997
for the same reason.
As noted above, the only chemicals
detected in sludge that could be
attributed to anthraquinone production
in 1994 did not have health-based
benchmarks. EPA did not receive any
information in comments on the 1994
proposal that would assist us in
calculating health benchmarks.
Furthermore, EPA has not subsequently
found any suitable surrogates to
estimate the toxicity of the compounds
in question.
spent filter aids. Our sampling results
were inconclusive for TAM sludges
because these products were not
manufactured during our sampling visit.
While we did succeed in obtaining
samples of anthraquinone sludge, we do
not have health benchmarks for the two
constituents that could be attributed to
production of anthraquinone products.
HI. Approach Used in This Proposed
Listing
A. Summary of Today's Action
Filter Aids
In response to the 1992 questionnaire,
a number of dye and pigment
manufacturers reported generating filter
aid wastes. We are not including
information on the number of facilities
generating this waste, nor the waste
quantities reported for 1991, due to
business confidentiality concerns. We
also cannot include information
collected by EPA in 1998 on the number
of generators and the quantities'for 1997
for the same reason. Facilities that
generated spent filter aids may generate
this waste from the production of a wide
variety of different dyes and pigments.
For example, one facility reported
generating a total of 90 Mtons of filter
aid wastes in 1997, comprised of 18
filter aids arising from the production of
dyes and/or pigments.
TAM Sludges
In response to the 1992 questionnaire,
a number of dye and pigment
manufacturers reported generating TAM
wastewater treatment sludges. We are
not including information on the
number of facilities generating this
waste, nor the waste quantities reported
for 1991, due to business confidentiality
concerns. We also cannot include
information collected by EPA in 1998
on the number of generators and the
quantities for 1997 for the same reason.
As noted previously, EPA was unable to
collect samples of this waste.
2. Sampling and Analysis Data
For the 1994 proposed rule, the
Agency performed sampling to
characterize the wastes generated at dye
and pigment manufacturing facilities.
EPA collected a total of 34 waste
samples from facilities to characterize
the residuals under evaluation. The
analytical results for all the wastes are
summarized in the Background
Document for Identification and Listing
of the Deferred Dye and Pigment '
Wastes, Appendix A (hereafter called
the Listing Background Document) for
today's proposal, which is available in
the docket. (Note however, that we
cannot release much of the analytical
data due to business confidentiality
concerns). The dye and pigment
manufacturers also provided a limited
amount of additional waste sampling
and analysis data in 1994. These
additional data include aggregated
analytical results from 19 industry
analyses of samples that EPA and the
facilities split during sampling visits. •
An industry trade group (Color Pigment
Manufacturers' Association, or CPMA)
aggregated this analytical information
and submitted this information to EPA •
in April 1994. CPMA also included this
information in the group's public
comments on the 1994 proposed rule
(see Docket No. F-94-DPLP-FFFFF,.
item DPLP-0025). We used the available
sampling data from these sources to
identify potential constituents of
concern for use in today's proposed ;
rule. ' •'•
For the 1994 proposed rule, EPA •
collected limited sampling data for
In listings promulgated by EPA, we
typically describe the scope of the
listing in terms of the waste material
and the industry or process generating
the waste. However, in today's rule we
are proposing to use a new approach in
these listings, a "concentration-based
listing." In a concentration-based
listing, a waste would be hazardous
unless a determination is made that it
does not contain any of the constituents
of concern at or above specified levels
of concern. This approach draws from
the concept of the characteristic
approach to defining a hazardous waste,
in that whether a waste is hazardous
depends on the levels of key
constituents in the wastes. We describe
this concept in detail later in this notice.
We are proposing concentration-based
listings for two of the deferred wastes:
• Spent filter aids, diatomaceous
earth, or adsorbents used in the
production of azo, anthraquinone, or
triarylmethane dyes, pigments, or FD&C
colorants.
• Wastewater treatment sludge from
the production of triarylmethane dyes
and pigments (excluding triarylmethane
pigments using aniline as a feedstock).
For both wastes, the listings would
apply if the wastes contain any of the
constituents identified in the regulation
at a concentration equal to or greater
than the hazardous level set for that
constituent (see tables IV-1 and IV-2 for
levels). We are also proposing a set of
conditions and requirements that must
be met if a facility wishes to claim its
waste does not exceed these levels and
is, therefore, not covered by the listing.
We are proposing not to list as
hazardous the third waste considered:
• Wastewater treatment sludge from
the production of anthraquinone dyes
and pigments.
In the following sections we describe
the concept of a concentration-based
listing and the risk assessment
methodology we used to develop
concentration limits for each wastes. We
describe our proposed decisions in more
detail in Section IV.
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B. What Is a Concentration-Based
Listing?
A concentration-based listing
specifies constituent-specific levels in a
waste that causes the waste to become
a listed hazardous waste. In this
proposed rule, we identify constituents
of concern likely to be present in two
categories of dye and pigment wastes.
Using risk assessment tools developed
to support our hazardous waste
identification program, we assessed the
potential risks associated with the
constituents of concern. From this
analysis, we developed "listing
Concentrations" for each of the
constituents of concern in the two waste
categories.
If you generate any of the wastes
included in the two categories of dye
and pigment wastes referenced above,
you must either determine whether or
not your waste is hazardous or assume
that it is hazardous as-generated. We are
proposing that you determine
representative concentrations for the
constituents of concern in your waste
through sampling and analyses, unless
you can use process knowledge to
demonstrate that certain constituents
are not present'in your waste. Based on
this information, you must make a
determination as to whether or not your
waste is a listed hazardous waste. Your
waste would be a listed hazardous waste
if it contains any of the constituents of
concern at a concentration equal to or
greater than the hazardous
concentration identified for that
constituent. If all of the constituents of
concern in your waste were below their
respective listing concentrations, you
would need to notify EPA that your
wastes are nonhazardous. The detailed
descriptions of the steps you would be
required to follow to implement the
concentration-based listing are
described later in this proposed rule.
C. Why Is a Concentration-Based
Approach Being Used for This Listing?
There are several reasons for using a
concentration-based approach for listing
the deferred dyes and pigments wastes.
First, these wastes are generated by an
Industry that uses batch processes to
manufacture a variety of products, in
response to market demand for a wide
variety of dye and pigment products.
Batch operations may result in highly
variable wastes at the same facility or
different facilities. A concentration-
based approach allows the variable
wastes generated at these facilities to be
evaluated individually for hazard, so
only the truly hazardous wastes are
listed. This tailored approach is more
cost-effective for the industry than a
standard listing, and avoids the
unnecessary regulation of nonhazardous
waste.
Alternatively, EPA could have
attempted to collect more information
on these specific wastes to support a
straightforward listing, i.e., without any
concentration limits. However, such a
data collection effort would have been
difficult due to the wide variety of
individual dye or pigment products
produced and the potential variability
in the waste characteristics. For
example, one facility generated 18 filter
aid wastes in 1997 arising from the
production of different dyes and/or
pigments. Gathering sufficient samples
to evaluate all potential filter aid wastes
would require a large commitment of
scarce Agency resources that would
have been beyond the reasonable scope
of this rulemaking, especially given the
time constraints of the existing Consent
Decree. Given the relatively low
quantities of the individual filter aids
produced, EPA does not feel such an
effort was justified.
Second, many manufacturers in the
dye and pigment industries want to
keep facility-specific product and waste
information confidential. These
manufacturers are concerned that
release of such information could cause
competitive harm. A concentration-
based listing allows us to rely less on
CBI, since we do not use this
information directly to set the listing
concentrations. This means we don't
use specific information, such as
product formulations or concentrations
of constituents in the wastes, to set
hazardous concentration levels for
constituents of concern. As noted
earlier, however, in this particular
listing EPA still must resolve the CBI
claims on some specific data prior to
release.
Finally, a concentration-based listing
approach may provide an incentive for
hazardous waste generating facilities to
modify their manufacturing processes or
treat their wastes. For example, if a
facility has a listed hazardous waste
based on constituent-specific
concentration levels established by EPA,
it also knows the required
concentrations levels of constituents in
its waste below which its waste would
become nonhazardous. Therefore, the
facility may decide to modify its
manufacturing process in order to
generate a nonhazardous waste. Thus,
this approach encourages waste
minimization.
Section 1003 of the HSWA indicates
that one of RCRA's goals is to promote
protection of human health and the
environment and to conserve valuable
material and energy resources by
"minimizing the generation of
hazardous waste and the land disposal
of hazardous waste by encouraging
process substitution, materials recovery,
properly conducted recycling, and reuse
and treatment." Section 1003 further
provides that it is a national policy of
the United States that, whenever
feasible, the generation of hazardous
waste is to be reduced or eliminated as
expeditiously as possible.
The Pollution Prevention Act of 1990
(42 U.S.C. 13101 etseq.. Pub. L. 101-
508, November 5, 1990) provides a
hierarchy of pollution prevention
approaches. Pollution should be
prevented or reduced; pollution that
cannot be prevented should be recycled
or reused in an environmentally safe
manner; pollution that cannot be
prevented/reduced or recycled should
be treated; and disposal or release into
the environment should be chosen only
as a last resort. A concentration-based
listing may prevent pollution by
discouraging generation of wastes with
high levels of toxic constituents. If EPA
provides a concentration-based target in
the listing, generators would have the
regulatory and economic incentive to
meet the reduced levels.
D. What Risk Assessment Approach Did
EPA Use?
Under a concentration-based listing
approach, EPA must calculate
concentration levels, or "listing levels,"
in the waste that would present a
hazard. To accomplish this, the Agency:
(1) Selected constituents of potential
concern in the waste, (2) chose a
plausible waste management scenario,
(3) calculated exposure concentrations
by modeling the release and transport of
the constituents from the waste
management unit to the point of
exposure, and (4) calculated waste
concentrations that would yield the
target risk level at the point of exposure.
The following sections present an
overview of the analysis EPA used to
calculate risk-based listing levels for
filter aids and TAM sludges generated
during the manufacture of organic dye
and pigment products. You will find
more details of how we selected the
constituents of concern in the Listing
Background Document. Details of the
risk assessment are provided in the
document in the docket entitled
Development of Risk-Based Listing
Concentrations for Hazardous
Constituents Contained in Spent Filter
Aids and Triarylmethane (TAM)
Wastewater Treatment Sludges
(hereafter called the Risk Assessment
Background Document).
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40199
1. Choosing the Constituents of Concern
Our initial universe of constituents of
potential concern included any
constituent detected in any wastestream
from the production of all classes of
dyes and pigments we examined (i.e.,
all wastes sampled associated with the
production of azo, TAM, and
anthraquinone dyes or pigments,
including FD& C colorants). We
typically obtain samples from the
specific wastes of concern for a standard
listing evaluation. However, obtaining
representative samples of filter aids and
TAM sludges was difficult, as noted in
the 1994 proposal (see 59 FR 66095 and
66103), due to widely varying wastes
and batch processes. We believe that the
broad universe of constituents detected
in all wastes examined provides an
appropriate starting point for selecting
constituents of concern for filter aids,
because these wastes may be generated
from the production of many kinds of
dyes and pigments. Because TAM
sludge is a much more narrowly defined
waste, we relied on available
information regarding constituents used
in TAM production to determine what
constituents we expect in the waste.
Our primary source of potential
constituents was the set of analytical
data EPA collected to support the 1994
proposed rule described in Section I.E.2
of today's notice. We also examined the
limited analytical data from industry to
confirm the presence of constituents.
These data sets included sampling
results for all wastes under
consideration in the 1994 proposal,
because the available analytical data for
the three specific wastes at issue are
limited. For filter aids, EPA obtained
some samples in support of the 1994
proposed rule. However, filter aids may
potentially contain a variety of
constituents, depending on what
products and processes are in use by
different facilities. Therefore, the
limited waste analysis data for filter aids
alone were not adequate to establish
constituents of concern. We have no
waste analysis data that would allow us
to identify specific constituents of
concern for TAM or anthraquinone
sludges. As noted in Section E.D, our
sampling results were inconclusive for
TAM sludges because TAM dyes or
pigments were not being produced at
the time EPA collected its samples.
While we did succeed in obtaining
samples of anthraquinone sludge, we do
not have health benchmarks for the two
constituents that could be attributed to
production of anthraquinone products.
Thus, we did not pursue a listing for
this waste.
We used the analytical data from all
wastes to develop an initial list of
potential chemicals of concern. We then
reduced and augmented this list based
on several factors. First, we can only
develop a concentration level if a'health
benchmark exists for the chemical.
Therefore, we removed constituents
without health benchmarks from further
evaluation. The sources we used for
health benchmark data are summarized
below; the Risk Assessment Background
Document contains further information
(see Appendix E).
Due to the lack of health-based
benchmarks, we excluded certain
constituents from consideration in
today's proposed rule that we
previously evaluated for azo dye and
pigment wastes in the 1994 proposed
rule. These constituents are
acetoacetanilide (AAA), acetoacetro-
toluidine (AAOT), and acetoacet-o-
anisidine (AAOA). For the 1994
proposal, we derived health based
numbers based on a Structural Activity
Relationship (SAR) analysis. The .
Agency has since reevaluated and
revised the SAR analysis based on'.
comments received in response to the
1994 proposal. The revised analysis,
which has been independently peer
reviewed, concludes that the current
available data are insufficient to make a
quantitative estimation of the
carcinogenic potential of these
compounds, or to establish provisional
non-cancer benchmarks. The revised
toxicological analysis for these
compounds and the peer review
documents are provided in Appendix A
to the Risk Assessment Background
Document.
We then screened the remaining
potential constituents to remove -.
chemicals that we believed were of little
use in defining the hazardous
characteristic of the two wastes at issue.
In this screen we considered the
prevalence with which a constituent is
used in the manufacturing of the '
different classes of dyes and pigments at
issue in the consent decree, the
likelihood that a chemical could be
attributed to such production, and the
frequency with which a chemical was
detected in wastes samples. In
considering if the constituents detected
are likely to be derived from dye or '
pigment production, we used publicly
available information from the Colour
Index International (3rd edition, 1996).
For example, we retained any chemicals
that were detected that are commonly
used as raw materials in the production
of the dyes and pigments at issue (e.g.,
aniline is widely used in the production
of azo products; see Colour Index, vol.
4, pages 4009 and 4699). We also kept
some chemicals detected that have no
apparent use as raw materials, because
they may be impurities or degradation
products from chemicals used in the
manufacturing process (e.g.,
naphthalene may be an impurity in a
commonly used raw material, beta-
naphthol). We removed some
constituents, such as acetone and
methylene chloride, that were detected
frequently in samples, because they are
common laboratory contaminants and/
or common solvents that have no
reported use in the production of these
dyes and pigments. While such
constituents may be present in wastes,
we did not consider them further
because we could not reasonably
attribute them to dye and pigment
production processes sampled. We
dropped other constituents that had
little or no reported use in the Colour
Index; the dropped constituents were
also rarely found in waste samples.
We are proposing to include the
selected core chemicals in Table III-l as
constituents of concern for defining the
two listed wastes. This table
summarizes the frequency with which
we detected the chemicals in waste
samples, and prevalence of use of the
chemicals in the production of the three
dye and pigment classes (azo, TAM, and
anthraquinone) as found in the Colour
Index. For filter aids we included
constituents on the final list of
constituents of concern if we detected
the chemicals with at least a low
frequency (i.e, in more than one
sample), and we found some evidence
that industry used the chemicals in the
production of the dyes and pigments at
issue. We also selected several
chemicals that we believe may be
degradation products of other raw
materials (e.g., p-phenylenediamine), or
possible impurities in other starting
materials (e.g., naphthalene). Finally,
we included several compounds that
may arise from TAM production, as
described below, even though we do not
have analytical data showing these
chemicals are present in wastes from
this industry. (More details of our
rationale for choosing chemicals of
concern are given in the Listing
Background Document, Section 4).
We chose to add two chemicals for
consideration as constituents of concern
that were reported to be used in the
production of TAM products, even
though we did not find them in any
waste samples. In the case of
benzaldehyde, we did not analyze any
of the wastes for this compound.
However, this chemical is reported to be
used in the production of TAM products
(see Colour Index, vol.4, page 4727). We
analyzed for the other chemical (the
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identity is not given due to business
confidentiality concerns), but we did
not find it in any samples. However, the
3007 Survey indicated significant use of
this chemical in the production of TAM
dyes. Ef>A did not succeed in obtaining
waste samples during the production of
TAM dye and pigments (excluding TAM
pigments using aniline as a feedstock).
Therefore, based on the known uses in
TAM manufacturing, we considered
these two chemicals as potential
constituents of concern.
In the case of TAM sludges, we
considered proposing the same list of
core constituents used for filter aids. We
considered this option primarily
because we have no analytical data that
reflects wastes arising from TAM
production. (We do have data for wastes
from the production of TAM pigments
using aniline as a feedstock; this subset
of TAM wastes were dealt with in the
1994 proposed rule and is not at issue
in today's notice. We decided to
propose a list based on the constituents
that are known to be used in the
manufacturing of TAM dyes or
pigments. Using public sources of
information (i.e., Colour Index), we
were able to identify reactants reported
in use for TAM products. Except as
noted previously, the constituents
identified in this way are consistent
with the constituents reported in the
3007 Survey. This analysis led to the list
of constituents of concern for TAM
sludges.
The publicly available information we
used was consistent with the
information provided by industry in
responses to the 3007 Survey, except in
a few cases. In some instances (the
identities are not given due to business
confidentiality concerns), the Colour
Index showed low to moderate use of
the chemicals that was not confirmed in
the 3007 Survey. Conversely, in the case
of another chemical (the identity is not
given due to business confidentiality
concerns), the 3007 Survey indicated
significant use in the production of
TAM dyes, while the Colour Index did
not. In cases where we had these
discrepancies, we relied on the source
that showed use and assumed that these
chemicals may be used in production.
In choosing core constituents of
concern for a concentration-based
listing for filter aids and TAM sludges,
we considered adding other constituents
shown in Table IH-2. We considered
these chemicals because they were
detected with a moderate frequency,
they had some use in manufacturing the
dye and pigment products of concern, or
they are in a class of compounds that
have been historically linked to dye
production (benzidines). However, we
believe that these constituents are
unlikely to be present in these two
specific wastes at levels of concern.
Some of the chemicals in Table III-2
could not be linked to the production of
the dye and pigment classes at issue. We
did not include chemicals in the final
list of core constituents of concern
unless we could find some evidence
that the presence of a chemical was
related to the production of the classes
of the dyes and pigments of interest (for
filter aids, the production of azo, TAM,
or anthraquinone products; for TAM
sludges, the production of TAM
products, excluding TAM pigments
using aniline as a feedstock). This is
because many waste samples were
wastewaters or sludges collected from
combined wastewater treatment
systems, and such systems typically
receive waste streams from various
other production processes at facilities.
We did not include other chemicals
because they were never or rarely
detected in EPA's analysis.
TABLE 111-1.—CORE CONSTITUENTS OF CONCERN IN FILTER AIDS AND TAM SLUDGES
Constituent
Aniline
Crssol p-
Dimethoxybenzidlne
3,&-.
Dim ethylanil in 6
N.N-.
i,
Diphenylamins
1.2-.
FoTTOeUdshyds
Phenol
p-(4-amirtoaniline).
Core con-
stituents
of con-
cern for
filter aids
(FA) and/
or TAM
sludges
(T)
FA
PA T
FA
FA
FA
FA T
FA T
FA
FA T
FA
FA
FA
Frequency of detection1
High; S
Not analyzed
Moderate S
Moderate, S
Low, S
Rare
Moderate
Moderate S
Moderate/High
Moderate/High S
Low/Moderate
Use in production of dye and pigment
classes2
High use (Azo); some use in TAM pig-
ment (aniline based)
Moderate use in TAM products**
Rare use (Azo)
Low use (Azo) found in Colour Index;**
Moderate use (Azo)
Moderate to high use found for TAM
dye production; rare use otherwise.
Low use (Azo); rare use in TAMs
None reported
Moderate use for TAM; low use for
others
None reported
Moderate use (Azo)
Moderate use (Azo)
Comments
Not analyzed, but common reactant in
TAM production.
Aromatic amine; possible contaminant.
Industry split samples did not distin-
guish rneta and para isomers.
Rarely detected, but TAM waste not
sampled and common reactant in
TAM production.
Indistinguishable from N-
Nitrosodiphenylamine by EPA meth-
od (GC/MS).
Possible oxidation product of aniline;
indistinguishable from azobenzene
by EPA method (GC/MS).
Possible impurity in common Azo raw
material (beta-naphthol).
Possible hydrolysis product of other
azo raw materials
(aminoacetoacetanilide); indistin-
guishable from o-isomer in EPA
analysis.
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40201
TABLE 111-1 .—CORE CONSTITUENTS OF CONCERN IN FILTER AIDS AND TAM SLUDGES—Continued
Constituent
Toluidine, o-(2-
aminotoluene).
Toluidine, p-(4-
aminotoluene).
n
n
Core con-
stituents
of con-
cern for
filter aids
(FA) and/
or TAM
sludges
(T)
FA, T
FA, T
Frequency of detection1
Moderate, S
Moderate, S
Use in production of dye and pigment
classes2
I
Moderate use (Azo); low use (TAM) ....
Low to moderate uses (TAM and
anthraquinone).
Comments
Hydrolysis product of raw materials
(AAOT); EPA could not separate o-
and p-isomers during analysis.
EPA could not separate o-and p-iso-
mers during analysis.
._ —.._..._.. .. M.,uljr^^ „, .roiii^,,:* „, Q,, uyc emu laymen! waaitKs iium production oi azo, i AM, ana antnraquinone dve
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
Benzene
Benzidine
Chlorobenzene
Chloroform
Dichlorobenzene, 1,2-
Phenylenediamine, o-(2-
aminoaniline).
Toluidine, 5-nitro-o-(2-methyl-5-ni-
troaniline).
n
Frequency of detection1
Moderate S
Low
Moderate, S
Moderate S
Moderate
(See comments)
ND, S :
Use in production of dye
and pigment classes2
No reported use domesti-
ca\\y.
None reported
Low use (anthraquinone)
Moderate use (Azo)
Comments
Found in waste, but no use; common contaminant
from many industrial processes.
Used historically (Azo), but no current domestic
use reported; only found in wastes from proc-
esses that do not use filter aids.
No known use; other uses as solvent.
No use; contaminant from treated water supplies;
other uses as solvent.
No use in azo/TAM/anthraquinone production; sol-
vent uses in other dye production (Oxazine
dyes).2
EPA found analytical methods unreliable (very
poor recoveries); may be indistinguishable from
p-isomer.
Not detected in any EPA samples of azo wastes
and reported in only 1 industry sample.
"d "*"•**»» ^/pigments and FD&
C rants t *£Sfg S3S."5£Sdff induct
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 data
from all dye and pigment wastes
sampled is clearly appropriate for filter
aids. This is because filter aids are used
to treat and purify a wide variety of
wastes derived from all of the classes of
dye and pigment products (azo,
triarylmethane, and anthraquinone).
The shorter list for TAM sludges also is
appropriate, due to the more limited set
of potential waste constituents for this
single dye and pigment class. We
calculated concentration limits for all
constituents in Tables III-l and III-2 for
both spent filter aids and TAM sludges,
as we describe later in this notice.
We are seeking comment on whether
the constituents of concern we selected
are appropriate for the concentration-
based listings for the two wastes under
consideration. We are interested in any
information on the potential for these,
or any other constituents in Table TJJ-2,
to be in these wastes at levels of
concern. We believe that it is reasonable
to Select constituents that we can link to
the dye and pigment processes under
evaluation. To require testing for an
extensive list of constituents without
adequate reason would lead to
unnecessary analysis by industry in
evaluating if their wastes meet the
listing levels. After considering
information provided in comments on
today's proposed rule, we may choose to
add potential constituents from Table
HI-2, or delete proposed constituents for
the two wastes.
Analytical Issues
We found problems in our chemical
analysis of dye and pigment waste
samples for some of the constituents in
Table HI-1. In a few cases, our analyses
could not distinguish between two
compounds when we used the usual
EPA methods for semivolatile organic
chemicals, GC/MS method 8270 in Test
Methods for Evaluating Solid Wastes,
Physical/Chemical Methods; SW-846,
hereafter called SW-846). We found
problems for four pairs of compounds:
diphenylamine/N-
nitrosodiphenylamine; 1,2-
diphenylhydrazine/azobenzene; o-
toluidine/p-toluidine; and o-
phenylenediamine/p-
phenylenediamine. We propose to deal
with these problems as outlined below.
N-Nitrosodiphenylamine breaks down
to diphenylamine in the method we
used; therefore these two chemicals
could not be distinguished. This means
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Federal Register/Vol. 64, No. 141/Friday, July 23, 1999/Proposed Rules
that detection by this method could be
1 due to either compound being in the
I waste. We found no reported use of the
N-nitroso-derivative, but we did find
diphenylamine has some use in the
production of azo and TAM products.
Therefore, for this pair we selected
diphenylamine as the likely constituent
of concern. This means that, if we
finalize diphenylamine as a constituent
in the concentration based listings,
generators would analyze for this
constituent and assume any
concentration measured is
diphenylamine.
Similarly, we could not distinguish
the compounds 1,2-diphenylhydrazine
and azobenzene in the analytical
method used, because these chemicals
interconvert readily under analytical
conditions. Thus, our data showed that
One or both of these compounds were
present in* waste samples, but we could
not tell which one. In this case, we did
not find any reported use of either
chemical in dye or pigment production
processes. However we believe that the
presence of either may be explained by
oxidation of aniline from processes that
use aniline as a reactant. Thus, in this
case we are proposing to include the
constituent with the lower
concentration level (1.2-
diphenylhydrazine) to be protective.
This means that generators would
analyze their waste for the total level of
1,2-diphenylhydrazine/azobenzene, and
assume that the amount detected is due
only to the more toxic 1.2-
diphenylhydrazine. This is also
reasonable because these compounds
may readily interconvert in wastes or
the environment, thus it is prudent to
set the listing level for the more toxic
component.
In our analysis we also could not
separate two isomers of toluidine (o-
toluidine and p-toluidine) and
phenylenediamine (o-
phenylenediamine and p-
phenylenediamine). While it may be
possible to distinguish these isomers
using other analytical methods, we have
no data at this time to indicate this. For
the tolu|dine isomers, we are proposing
to include both isomers as constituents
of concern. If generators cannot separate
these isomers, they could determine a
total quantity for both. In the absence of
information on which isomer is
expected in the waste, generators would
assume that the measured concentration
is due to the more toxic o-toluidine.
Generators could use their knowledge of
their production processes! however, to
definitively rule out the presence of one
of the ispmers, and in this way identify
which isomer is present. For example, if
generators know that only one isomer is
used in any of the relevant processes,
they could document this and claim this
as part of their determination. Note that
the risk-based concentration levels we
propose to setlbr these two chemicals
are similar (i.e, they differ by less than
a factor of two for both wastes), thus the
practical distinction between these
isomers is relatively unimportant,
unless generators measure them at
levels approaching the listing levels.
For the o- and p-phenylenediamine
isomers, we reviewed the analytical data
and now believe that o-
phenylenediamine cannot be reliably
measured. We found that we could not
reliably recover the chemical from
samples with known concentrations
(spiked samples). In addition, the
reported usage of o-phenylenediamine
in the production of dyes and pigments
is relatively limited compared to the use
of p-phenylenediamine (see Colour
Index, vol. 4, page 4822). Furthermore,
p-phenylenediamine may also form
from the degradation of a widely used
azo precursor, p-aminoacetoacetanilide.
Therefore, because of these analytical
problems, and also because its use in
dye or pigment production is limited,
we are proposing not to include o-
phenylenediamine in the list of
constituents of concern for either waste.
Thus, if we finalize phenylenediamine
as a constituent of concern for filter
aids, generators would be required only
to determine if p-phenylenediamine is
present in their wastes below the listing
levels.
We seek comment on these analytical
issues associated with the potential
constituents of concern. We are
especially interested in any information
on methods that may reliably resolve
the analytical problems noted above. We
also seek comment on the problematic
chemicals we identified, and whether
EPA should adopt another approach.
One approach might be to simply avoid
using any of thesexompounds on the
list of constituents of concern due to the
analytical problems. However, due to
their potential importance, we believe at
this time that the above approach is a
reasonable attempt to use these
chemicals in setting listing levels.
Another approach would be to use the
approach described for the 1,2-
diphenylhydrazine/azobenzene pair,
i.e., if the generators cannot resolve the
constituents in the chemical analysis,
they would always assume that the
more toxic constituent was in fact
present. We believe this may be overly
conservative in some cases, but solicit
comment on this and other possible
approaches.
2. Choosing the Risk Assessment
Scenarios To Evaluate
For both filter aids and TAM sludges,
we evaluated the scenario of disposal in
unlined municipal landfills and
assessed the impact of the release of
leachate from these landfills to the
groundwater. In past listings we have
found that landfill disposal of
wastewater treatment sludges and
similar solids is quite common (e.g., see
EPA's recent listing for petroleum
refining wastes, 63 FR 42110; August 6,
1998). The updated information we
collected for both wastes showed that
some generators sent these wastes to
municipal landfills. In both cases, EPA
chose to evaluate this scenario. However
due to constraints on release of
information claimed as CBI, we cannot
discuss in detail the prevalence of this
disposal practice or the extent of other
practices.
We used the updated 1997 waste
volumes (i.e., waste quantities) reported
by facilities in our modeling of potential
releases from municipal landfills. In the
case of filter aids, we combined the
filter aids generated by each facility and
arrayed these combined waste volumes
into a distribution that would represent
quantities of filter aids that go to
municipal landfills. We then used this
distribution of waste volumes as a key
input parameter into our modeling.
For TAM sludges (excluding sludges
associated with TAM pigments using
aniline as a feedstock), the updated data
showed few generators of this waste.
One facility sent 57 metric tons of
sludge derived solely from the
production of TAM dyes or pigments to
a municipal landfill. This specific
sludge was generated from wastewater
that arose from the production of TAM
products, and did not include
wastewaters from other production
processes. We cannot discuss the
volumes or management practices of the
other facilities at this time due to CBI
constraints. We used the one volume
associated with the dedicated sludge in
all modeling for TAM sludge disposal in
municipal landfills.
Under Federal regulations, generators
are free to send either waste to any
Subtitle D municipal landfill. We
assumed that any municipal landfill
described in EPA's nation-wide
distribution of municipal landfills was
possible, with some geographic
limitations reflecting the locations of the
dye and pigment manufacturers
(described further below). Therefore, we,
used the distribution of data available
for each of the parameters needed to
model potential risk associated with
disposal of dye and pigment waste
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40203
streams in municipal landfills. The
primary source of data from which we
selected key modeling inputs (e.g.,
surface area, active life, distance to well)
is EPA's 1988 National Survey of Solid
Waste Municipal Landfill Facilities.
These parameters are described in more
detail in the Risk Assessment
Background Document (Section 4).
EPA has promulgated regulations
governing the design and operation of
municipal landfills (see 40 CFR Part
258), and our modeling assumptions
reflected some of these requirements
when appropriate (e.g., daily cover). We
chose to model a landfill without the
full liner system described in the
regulations, because it is reasonable to
assume that many landfills now and in
the future may not have synthetic liners.
For example, the design criteria in
258.40 apply only to new units or lateral
expansions of existing units. Existing
landfills (i.e., those in existence prior to
the effective date as defined in
§ 258.1 (e)) do not have to meet the
design requirements in §258.40 (e.g.,
liner systems). Furthermore, the
regulations allow exemptions from the
standards depending on the location
and size of the landfill (Section
258.1 (fj) and States may approve
alternative designs for new units or
lateral expansions based on
performance standards (§258.40(a)(l)).
Finally, EPA is in the process of
authorizing States to implement the
municipal landfill regulations, and
States are still working to issue permits
and bring all landfills up to the
regulatory requirements. Given the
existing exemptions in the regulations,
. and the uncertainty in how many
landfills have liner systems, we believe
it is prudent to base our modeling on
landfills without a liner.
Another reason the modeling of
unlined landfills appears prudent is
because industrial wastes also can go to
unlined landfills that do not take
municipal waste (i.e., industrial
nonhazardous waste landfills), and thus
would not be subject to those standards.
We are unaware of any legal
requirement that these wastes could not
go to such non-municipal waste
landfills. Given the similarities in the
disposal practices (municipal and
industrial nonhazardous waste
landfills), we believe that an unlined
landfill scenario is reasonable.
EPA used the approximate geographic
locations of the facilities that generated
spent filter aids and TAM sludges to
estimate location parameters needed to
conduct the risk assessment. We used
geographic location to identify the soil,
climate, and hydrogeologic parameters
used in the fate and transport modeling.
Location related parameters required for
the risk assessment and specific inputs
and data distributions used to model
risk from these units are described in
detail in the Risk Assessment
Background Document (Section 4).
As noted above, there is uncertainty
in how many landfills that might
receive these waste have liner systems
in place. EPA acknowledges that a liner
system would serve to contain waste
leachate, and would lessen the risk
While such a liner system was intact.
We seek comment as to whether an
alternative regulatory approach should
be taken for wastes sent to landfills with
liners or certain environmental controls.
E. How Did EPA Estimate Exposure
Concentrations?
1. Risk Assessment Methods
3. The Receptors and Exposure
Pathways Evaluated
The primary receptors we considered
in this analysis are adults and children
exposed via ingestion (i.e., drinking
water) and noningestion (e.g.
showering) exposure pathways to water
from groundwater wells contaminated
by the leachate from the municipal
landfill receiving filter aid or TAM
sludge wastes. We considered only
receptors with residential drinking
water wells for the groundwater
pathway. We assumed all community
wells and other municipal water
supplies are treated and, therefore,
would not be contaminated with ;
constituents from the wastes of concern.
We also evaluated receptors from
nongroundwater pathways in our
sensitivity analysis. We assumed the
receptors for these pathways were
farmers and their children who live in
close proximity to the municipal
landfill. We chose these receptors
because their exposure results in the
highest potential risk for
nongroundwater pathways, which was
appropriate for the initial sensitivity or
screening analysis. Nongroundwater
exposure pathways for filter aids and
TAM sludges disposed in municipal
landfills result from the emission of
vapors from these landfilled wastes.' We
evaluated exposure from both direct and
indirect nongroundwater pathways.; The
direct pathway consists of dispersal, of
vapors from the landfill through the air
pathway directly to the receptor via the
inhalation. Indirect pathways include
deposition to soil, transfer to fruits,
vegetables, grain, and forage (air-to-
plant transfer and soil-to-plant transfer),
and uptake by grazing animals. The
plant and animal products are then :
consumed by the farm family. ;
To calculate listing levels for
constituents of concern, we needed to
determine what concentrations at the
point of exposure would be associated
with levels in the wastes. We conducted
the risk assessment in three stages: (1)
the sensitivity analysis, (2) the
deterministic analysis, and (3) the
probabilistic analysis for the
groundwater pathways. For the
nongroundwater pathways, the Agency
used results from the sensitivity
analysis to screen out nongroundwater
risks, because they were not significant
relative to potential groundwater risks
associated with disposal of wastes in
landfills.
a. Sensitivity Analysis. The purpose of
our sensitivity analysis was to identify
the most sensitive or risk-driving
parameters in the risk assessment model
and to determine high-end and central
tendency values for subsequent use in
the deterministic analysis. A high-end
parameter corresponds to its 90th or
10th percentile value depending on
whether a high or low value of that
parameter results in a higher predicted
risk. We conducted the sensitivity
analysis by varying each parameter or
set of linked parameters to high ends
one at a time, while holding all other
variables in the analysis at central
tendency. We then compared the risk
results using a single high-end
parameter to the results obtained when
all values are set at central tendency.
Using this method, we identified the
two most sensitive high end parameters
that resulted in the highest risks. We
then set these parameters to their high-
end values in the subsequent
deterministic analysis. For the
groundwater pathway, we used the
sensitivity analysis to identify high-end
parameters for use in the deterministic
assessment of risk from groundwater.
For the nongroundwater pathway, we
were able to use the results from the
sensitivity analysis as a screening level
analysis of nongroundwater risks.
Originally, we intended to use the
nongroundwater sensitivity analysis to
identify the most sensitive parameters
for use in a deterministic analysis of
nongroundwater risks from the dye and
pigment waste streams. However, we
were able to use the results of the
nongroundwater sensitivity analysis to
screen out or eliminate nongroundwater
risks as a primary concern for dye and
pigment industry wastes. We screened
out nongroundwater risks by comparing
the results of the nongroundwater
sensitivity analysis to the results of the
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Federal Register/Vol. 64, No. 141/Friday, July 23, 1999/Proposed Rules
groundwater sensitivity analysis, which
we performed using the same inputs for
common parameters. In all cases, the
groundwater risk analysis produced
higher risk estimates for all constituents.
Since the purpose of this analysis was
to set risk-based concentration limits,
we focused our analysis on the pathway
of most concern (i.e., highest risk) to
determine protective concentrations.
Because the groundwater pathway
presented the highest risk, we only
evaluated the groundwater pathway
further using deterministic and Monte
Carlo analyses. In other words, risk-
based concentrations set based on
groundwater pathway risks will also be
protective of nongroundwater pathway
risks. Based on this finding, no further
modeling of nongroundwater risks was
conducted. The Risk Assessment
Background Document describes the
sensitivity analysis for both
groundwater and nongroundwater
pathways and presents the results in
Appendices A and H.
b. Deterministic Analysis. The
"deterministic" method uses single
Values for input parameters in the
models to produce a point estimate of
risk or hazard. For this analysis, we
used a double high-end risk assessment.
In this method, we set the two
parameters identified to be most
sensitive at their high-end values and all
other parameters are set at central
tendency. A central tendency risk
estimate is the point estimate in which
all variables are set at central tendency
values. We presume the high-end risk
estimate to be a plausible estimate of
individual risk for those persons at the
upper end of the risk distribution. By
using these descriptors we Intend to
qonvey estimates of exposure in the
upper end of the distribution (i.e., above
the 90th percentile), while avoiding
estimates that are beyond the true
distribution. (See the EPA guidance
memo entitled, Guidance on Risk
Characterization for Risk Managers,
1992; hereafter known as the Habicht
memo, 1992). We applied the
deterministic methodology to assess
groundwater pathway risks from
disposal of spent filter aid and TAM
sludges in municipal landfills. The
parameters that we found to be the two
key high-end parameters varied
somewhat by chemical and waste.
However, these parameters were some
combination of waste quantity, well
location, and duration of exposure.
" c. Probabilistic Analysis (Monte Carlo
Method). In the probabilistic analysis,
we vary sensitive parameters for which
distributions of data are available.
Parameters varied for this analysis
include waste volumes, landfill size,
parameters related to the location of the
landfill such as climate and
hydrogeologic data, location of the
receptor, and exposure factors (e.g.,
drinking water ingestion rates). The
probabilistic analysis is conducted
using a Monte Carlo methodology.
Monte Carlo analysis provides a means
of quantifying some variability and
uncertainty in risk assessments by using
distributions that describe the full range
of values that the various input
parameters may have. Some of the
parameters in the probabilistic analysis
are set as constant values because (1)
there are insufficient data to develop a
distribution, (2) simplifying
assumptions are made, (3) site specific
constants are available, or (4) the
analysis has not been shown to be
sensitive 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 statistical
technique that calculates an individual
risk value or hazard quotient for each
category of parameters that affect or
determine risk. For each calculation, the
Monte Carlo simulation uses parameter
values that are randomly selected from
the distribution of values available for
each parameter. The range of values
selected for the input parameters
reflects the distribution of values
corresponding to each input parameter.
The repetitive calculations take many
randomly selected combinations of
input parameters to generate a range of
risk results. Based on the distribution of
the output, we can determine a risk or
hazard level representing the high end
(e.g., 90th or 95th percentile) or central
tendency (i.e., 50th percentile).
Although the simulation is internally
complex, commercial software performs
the calculations as a single operation,
presenting a distribution of risk results.
From these results, we can determine
the percentile distribution of exposure
point concentrations and risks for the
selected risk assessment scenario. We
assessed potential groundwater pathway
risks from disposal of filter aid and
TAM wastes in municipal landfills
using the probabilistic risk assessment
method.
Monte Carlo simulation can be used
to simulate the effects of natural
variability and informational
uncertainty that often accompany many
actual environmental conditions.
Further, information on the range and
likelihood of possible values for these
parameters is produced using this
technique. When compared with
alternative approaches for assessing
parameter uncertainty or variability, the
Monte Carlo technique has the
advantages of very general applicability,
no inherent restrictions on input
distributions or input-output
relationships, and relatively
straightforward computations. Also,
Monte Carlo application results can be
used to satisfactorily calculate
uncertainty, and to quantify the degree
of conservatism used. With
deterministic analyses, an alternative to
Monte Carlo, it is often not possible to
quantify the level of protection
represented by the results. However,
some potential limitations may exist
when applying Monte Carlo techniques
in modeling efforts. Variability (inherent
variation in a measure over time and
space) and uncertainty (lack of
knowledge) are often difficult to
distinguish within applications. Also,
one must account for correlations
among the various data parameters to
avoid distorting results. As explained in
Section III.H, we relied on the Monte
Carlo approach to set listing levels for
today's proposal.
2. Fate and Transport Modeling
The risk analysis employs several key
fate and transport models. The models
include a landfill partitioning model
based upon the equations presented in
a series of articles by Jury et al. We used
this model to estimate the concentration
of leachate from the landfill and the
emission rate for volatile constituents
from the landfill. We applied EPA's
Industrial Source Complex Short Term,
version 3 (ISCST3) to estimate the
dispersion and deposition of vapors
emitted from the municipal landfill. For
estimating the concentration of
constituents of concern at the
residential drinking water well, we used
the groundwater model EPACMTP or
EPA's Composite Model for Leachate
Migration witii Transformation
Products. Further details and references
for these-models are presented in the
Risk Assessment Background Document
(Section 5.2.2).
a. Landfill Partitioning Model. We
used the Jury equations to estimate fate
and transport of constituents in the
nongroundwater pathways from the
landfill to the receptor and to estimate
leachate from the landfill. Using a
model based on the Jury equations, we
projected the contaminant loss from a
landfill due to volatilization, run-off,
degradation, and leaching. The Jury
equations partition the waste in the
landfill to waste, air, and pore water and
calculate potential losses from leaching,
volatilization, and degradation. The
landfill partitioning model evaluates
contaminant losses over both the active
waste disposal period and after the
landfill is closed. We used the landfill
partitioning model to conduct the
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40205
sensitivity, deterministic, and Monte
Carlo analyses.
b. Air Model. We used the ISCST3 air
dispersion and deposition model to
estimate the vapor air concentrations
and deposition rates needed to develop
relative risk estimates associated with
vapor air emissions from the municipal
landfill. We estimated air pathway risks
using emissions estimates from the
landfill partitioning model as inputs to
the ISCST3 air model, and using ISCST3
to estimate the air concentration and
deposition of vapor for each constituent
at receptor locations. This modeling
step was only needed for the sensitivity
analysis to estimate risks from non-
groundwater pathways.
c. Groundwater Model. We used the
EPACMTP groundwater model to
estimate the concentration of
constituents of concern at the
residential drinking water well. We
conducted the groundwater modeling
using six surrogate compounds to
represent the movement of all
constituents of concern through the
groundwater pathway. Identification of
surrogate compounds provides a means
of minimizing the modeling runs
required to model the large number of
constituents evaluated for this
assessment. For this assessment, organic
constituents are grouped into six
categories based on like chemical and
physical properties. Sorption potential
and hydrolysis rate are the key
parameters used to group constituents;
however, for the constituents of concern
in today's proposed rule, hydrolysis was
not important. Therefore, the only
constituent-specific parameter of
importance for transport of the organic
compounds of interest was the sorption
potential (i.e., the organic carbon
partition coefficient, KoC; this is a
measure of the tendency for a chemical
to adsorb to organic material in soils).
For computational efficiency, we only
modeled the surrogate constituent in
each category, and then applied the
modeling results for the surrogate to
each constituent in the category. We
found that the dilution and attenuation
of the constituents we evaluated did not
vary significantly (i.e., less that a factor
of 2), even with larger differences in KOC.
Thus, the use of surrogates did not
introduce any appreciable uncertainty
into the final results. See Appendix C of
the Risk Assessment Background
Document for details of the designation
of constituent categories and
identification of surrogate compounds.
We used the EPACMPT model to
conduct the sensitivity analysis,
deterministic analysis, and Monte Carlo
analysis for the groundwater pathway.
The groundwater pathway modeling
yields the groundwater exposure
concentrations resulting from the
release of waste constituents from the
landfill. Precipitation that percolates
through the waste unit generates
leachate, which can infiltrate from the
bottom of the landfill into the
subsurface. The waste constituents
dissolved in the leachate (as predicted
by the partitioning model) are then
transported via aqueous phase migration
through the vadose zone to the ;
underlying saturated zone and then
down gradient to a ground water
receptor well. We project the
concentration at the intake point of a
hypothetical groundwater drinking
water well or receptor well, located at
a specified distance from the down
gradient edge of the waste management
unit.
We located the residential wells down
gradient from the landfill and within the
top ten meters of a plume of
groundwater contaminated by the
leachate from the municipal landfill. As
noted previously, we used distances of
receptor wells from waste management
units from EPA's National Survey of
Municipal Landfills. The distance from
the landfill to the receptor well, and the
location of the well in relation to the
plume of contaminated groundwater,
are important parameters in the
groundwater model. This is because the
projected concentrations of constituents
at the well, and the corresponding risks,
increase as the well location is moved
closer to the source within the plume.
For the Monte Carlo analysis, we
placed the receptor well downgradient
from the waste management unit at a
radial distance of up to 1,610 m; the
distance for each simulation was taken
from the distribution of distances
gathered by EPA in its survey noted
above. We assumed the lateral location
of the well to be randomly distributed
within the estimated lateral extent 'of the
plume. For the deterministic analysis,
the downgradient receptor well location
was fixed within the lateral extent of the
plume (most often at the high end value
of 102 meters from the landfill).
The objective of this ground-water
modeling was to compute the amount of
dilution and attenuation a contaminant
may undergo as it migrates from a
landfill to a ground-water well. The
amount of dilution and attenuation is
expressed as a dilution/attenuation
factor (DAF), which represents the ratio
of the initial leachate concentration
leaving the landfill to the ground-water
receptor well concentration. The high-
end DAFs for the different constituents
did not vary much for the two wastes,
i.e., the DAFs were in the range of 3 to
o.
The groundwater model accounts for
the following processes affecting
contaminant fate and transport:
advection, hydrodynamic dispersion,
linear or nonlinear equilibrium
sorption, chained first-order decay
reactions, and dilution from recharge in
the saturated zone.- EPACMTP was run
in both deterministic mode and Monte
Carlo mode. In the deterministic mode,
we set the two most sensitive variables
to their high end values, while keeping
all other parameters set at central
tendency. In trie probabilistic Monte
Carlo mode, the model randomly
selected parameter values from their
respective statistical distributions. The
Monte Carlo procedure allows
assessment of the uncertainty associated
with ground-water well concentrations
that result from uncertainty and
variability in climatic and
hydrogeologic characteristics of waste
management units across the range of
locations associated with the Dyes and
Pigments industry.
F. What Exposure Assumptions and
Toxicity Levels Did EPA Use?
We used values from EPA's Exposure
Factors Handbook (EPA, 1997) to set the
exposure assumptions for this analysis.
We applied the recommended values for
the central tendency and high end
intake rates in the deterministic
analysis, and we used a distribution of
values developed from the data
presented in the Exposure Factors
Handbook in the Monte Carlo analysis.
Section 6.0 of the Risk Assessment
Background Document discusses these
values in detail.
The health benchmark data used in
the analysis are based upon the values
presented in the Integrated Risk
Information System (IRIS) online
database of verified health benchmarks
or in the Health Effects Assessment
Summary Tables (HEAST) document.
Appendix E of the Risk Assessment
Background Document contains
toxicological profiles used in our
analysis. The studies used as the basis
for these benchmarks have been
reviewed and summaries of these
studies, along with references to the
complete studies, are presented in
Appendix E of the Risk Assessment
Background Document.
G. What Uncertainties Are Associated
With The Risk Assessment?
Uncertainty is inherent in the risk
assessment process. It occurs because
the risk assessment process is complex,
and variability is inherent in the
environment. We may classify the
sources of uncertainty as parameter
uncertainty and variability, exposure
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Federal Register/Vol. 64, No. 141/Friday, July 23, 1999/Proposed Rules
scenario uncertainty, and model
uncertainty. Parameter uncertainty
occurs when parameters appearing in
equations cannot be measured precisely
and/or accurately. Variability refers to
the normal variations in physical and
biological processes that we cannot
reduce with additional data. We have
addressed variability in this risk
assessment by using a probabilistic
analysis. Exposure scenario uncertainty
occurs because of the inability to
measure exposure of receptors to
constituents of concern. Model
uncertainty is associated with all
models used in risk assessment and
occurs because computer models
require simplifications of reality, and
thus exclude some variables and
interactions that influence fate and
transport but cannot be included in
models due to complexity or lack of
data. We discuss each of these issues in
detail in Section 8 of the Risk
Assessment Background Document.
One important area of uncertainty that
we believe should be noted is the
uncertainty involving estimates of risks
to children from carcinogenic
compounds. We used the same overall
approach for estimating cancer risks in
both adults and children from the dye
and pigment waste streams evaluated.
We modified the exposure factors for
children to account for differences
between adult and child receptors (e.g.,
body weight, exposure duration).
However, we recognize that significant
uncertainties and unknowns exist
regarding the estimation of lifetime
cancer risks in children. Methodologies
for estimating environmental threats to
children's health are relatively new.
They are currently being debated within
the scientific community, and will
continue to evolve. The analysis of
cancer risks in children undertaken for
this assessment has not been externally
peer reviewed.
H, What Risk Level Do the
Concentration Levels Represent?
In calculating concentration limits for
the two wastes, we assumed the
residential drinking water well
concentration is equal to EPA
established protective or health-based
level for each constituent for the most
sensitive receptor (adult or child).
Protective concentrations are those at
which adverse health effects from any
Single constituent present in
contaminated drinking water and/or
water used for bathing or showering do
not exceed a one in 100.000 (1 xlO"5)
Individual lifetime cancer risk or a non-
cancer hazard quotient of 1 (where the
hazard quotient is the ratio of the
concentration in the water to the
concentration at which no non-cancer
effects are expected). The use of these
risk levels is consistent with the initial
cancer-risk and HQ "levels of concern"
that we described in the discussion on
EPA's hazardous waste listing policy in
the 1994 proposed rule for dye pigment
wastes (see 59 FR 66075). As noted
previously, we based the concentrations
on the groundwater pathway, which is
the pathway of most concern for all
constituents of concern for this industry
when disposed in municipal landfills.
Section 5 of the Risk Assessment
Background Document provides the
methodology we used to derive risk
limiting waste concentrations in greater
detail.
/. What Are the Proposed Listing Levels?
Table HI-3 presents the risk-based
concentration levels for all potential
constituents of concern calculated for
both spent Filter Aids and TAM sludges
based on our risk assessment. These
levels represent protective
concentrations for constituents that may
be present in the wastes, and are based
on the receptor that yielded the lowest
allowable waste concentration (i.e. adult
or child). Using the partitioning model
described above, we calculated
protective levels for constituents in both
the waste itself and for leachate that is
released from the landfill. We are
proposing to set the concentration levels
in the listing at the levels calculated for
the constituents in the two wastes. If
you generate either waste under
consideration, your waste
concentrations would have to be below
these levels, or else your waste will be
a listed hazardous waste. Therefore,
under this proposal, you would be
assessing constituent concentrations in
the waste itself.
1. Selection of Listing Levels in Wastes
Versus Leachate
We considered using the landfill
leachate levels in Table III-2 instead of
the waste levels to define the listed
waste. We could do this if we require
generators to evaluate their wastes using
a test designed to predict leaching from
landfills. The Toxicity Characteristic
Leaching Procedure (TCLP) is one
possible method available. The Toxicity
Characteristic (TC) regulation uses the
TCLP to decide whether wastes are
hazardous under this characteristic (see
40 CFR 261.24). However, we decided
not to use the TCLP approach for several
reasons. First, we did not perform TCLP
analysis for these constituents in any of
the dye and pigment wastes examined.
Thus, we are uncertain how the method
might perform for the wastes at issue.
The partitioning model also factors in
the placement of the wastes into the
landfill and provides a leaching rate that
reflects how the volumes of wastes are
assumed to be disposed over time. The
TCLP approach is appropriate for
defining levels of concern under the TC
for all wastes on a nationwide basis,
where we have no specific information
on waste quantities disposed. In today's
proposed rule we have information on
the specific quantities of the two
selected wastes in the dyes and
pigments industries. Finally, we believe
that the analysis of the waste itself is
more straightforward to implement, and
would not require measuring levels in a
derived leachate that are much lower
than those in the waste. Therefore, we
chose to propose the concentration
based levels for the waste itself.
However, the TCLP does represent an
actual measurement of leach potential
as opposed to a value generated by a
model. Thus, the Agency may still
consider a final regulation based on the
TCLP, depending on comments received
and additional information provided.
2. Selection of Probabilistic Versus
Deterministic Modeling Results
The constituent concentrations in
Table IH-3 reflect the results of the
probabilistic modeling assessment. We
chose to use the probabilistic results,
rather than rely on the deterministic
results. While the Agency has used the
results of deterministic analyses for past
listing decisions, EPA has more recently
used Monte Carlo analyses for
additional verification (see Petroleum
Listing final rule, 63 FR 42110; August
6, 1998). As we have developed and
refined the Monte Carlo approach, we
believe it provides some distinct
advantages. As noted earlier, when
compared with alternative approaches
for assessing parameter uncertainty or
variability, the probabilistic technique
has the advantages of general
applicability and no inherent
restrictions on input distributions or
input-output relationships.
An additional factor the Agency
considered was the highly variable
nature of the data available. The
constituents of concern, their
concentrations, and waste volumes can
be highly variable across the different
industry processes, a factor which made
the Agency reluctant to rely on selected
point estimates for its assessment. Also
of particular concern was the difficulty
we found in choosing what set of
parameters would truly represent a
"high-end" analysis for multiple
pathways, constituents, and locations.
The issues associated with choosing
high-end parameters are discussed in
the Risk Assessment Background
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Federal Register/Vol. 64, No. 141/Friday, July 23, 1999/Proposed Rules
40207
Document, which presents the
deterministic as well as the probabilistic
results.
The probabilistic simulations used in
this proposed rulemaking assessed the
full distributions of critical input data
(e.g., distance to well, waste volumes,
landfill area) to randomly generate
receptor well concentrations of key
constituents for certain landfill
situations, and then combined the
results from many runs to produce a
probability distribution of risks. We
were then able to choose points along
the probability distribution of risk for
comparison to the high-end analysis.
For example, a risk that corresponds to
the 90th percentile for a specific waste
constituent in a landfill means that the
risk would be below this level in 90
percent of the runs.
The concentration levels in Table III-
3 represent the probabilistic modeling
results at the 90th percentile. As
discussed previously, we are attempting
to calculate estimates of exposure in the
upper end of the distribution (i.e., above
the 90th percentile), while avoiding
estimates that are beyond the true
distribution. (See Habicht memo, 1992.)
The Agency's policies do not indicate
that there is any particular point on a
Monte Carlo distribution that should be
the point at which the Agency regulates
or does not regulate. This conceptual
range is not meant to precisely define
the limits of this descriptor, but should
be used by the assessor as a target range
for characterizing "high-end risk."
Therefore, a high-end estimate that falls
within the range (above the 90th
percentile but still realistically on the
distribution), is a reasonable basis for a
, decision.
We believe that the 90th percentile
levels calculated for the waste
concentrations in today's proposed rule
are protective. For filter aids, the high-
end deterministic results gave
concentrations that were somewhat
higher than the 90th percentile levels
from the probabilistic analysis (by a
factor of 2-4 fold). Therefore, we believe
that using the 90th percentile values (as
opposed to higher percentile values)
provides results that are more consistent
with previous listing determinations
based on high-end deterministic ••
assessments. For TAM sludges, the 90th
percentile probabilistic levels are also
close to the deterministic results,
TABLE 111-3.—CALCULATED RISK-BASED CONCENTRATION LEVELS FOR POSSIBLE
AND PIGMENT WASTES'"
although for this waste the probabilistic
levels for most constituents are slightly
above the deterministic values
(approximately two-fold). Thus, the
90th percentile results appear to agree
reasonably well overall with the
deterministic results. Furthermore, the
probabilistic DAFs predicted for
transport of landfill leachate from the
landfill to the receptor well were
already quite low at the 90th percentile
(i.e., 2-5), also suggesting that the 90th
percentile is adequately protective.
We are soliciting comments on both
the use of the probabilistic modeling
results, rather than the deterministic
analyses, and also our use of the 90th
percentile risk level, rather than any
other level. For example, the 95th
percentile probabilistic results yields
concentrations that are about two-fold
lower. Details of the deterministic
modeling results, and levels calculated
using other percentiles from the
probabilistic analysis, are given in the
Risk Assessment Background Document
(Appendix F). We also seek comment on
the setting of the regulatory levels for
the waste itself, rather than the option
of using the TCLP values.
CONSTITUENTS OF CONCERN FOR DYE
Constituents
Aniline ,
Benzaldehyde
Benzene
Benzidine
Chloroaniline, p-
Chlorobenzene
Chloroform
Cresol, p-
Dichlorobenzene, 1,2-
Dimethoxybenzidine, 3,3'-
Dimethylaniline, N,N-
Diphenylamine
N-Nitrosodiphenylamine
Diphenylhydrazine, 1,2-
Azobenzene
Formaldehyde
Naphthalene
Phenol
Phenylenediamine, o-(2-aminoaniline)
Phenylenediamine, p-(4-aminoaniline)
Toluidine, o-(2-aminotoluene)
Toluidine, p-(4-aminotoluene)
Toluidine, 5-nitro-o-(2-Methyl-5-nitroaniline) . .
(-*) .
Concentration levels for filter
! aids"
Waste (mg/kg)
Leachate (mg/
ml)
Concentration levels for TAM
sludges
Waste (mg/kg)
17
5000
370
0.027
250
36
100
330
1100
520
300
27,000
7,400
31
720
7000
17
28,000
61
5,000
13
23
220
Leachate (mg/
ml)
0.03
5.6
0.11
0.000023
0.25
0.0036
0.042
0.33
0.043
0.38
0.11
1.1
0.62
0.0042
0.013
11
0.0028
34
0.11
10
0.022
0.029
0.15
.—p.. vvv. .» k. .», ww*. . |^wivri^iiLiii^ ii^f\ VJCIIVCVJ HUH I lilt: LJIUL/CtUIIIoUU CUlcliyolS
- Relevant data are not included at the present time for a number of constituents due to business confidentiality concerns.
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Federal Register/Vol. 64, No. 141/Friday, July 23, 1999/Proposed Rules
IV. Proposed Listing Determinations
and Regulations
A. What Are the Proposed Regulations
for the Two Wastes?
We are proposing that, if you generate
either of the two categories of dye and
pigment wastes at issue, you must either
determine whether or not your waste is
a listed hazardous waste within a
specified time, or assume that it is
hazardous as generated. Your waste
would become a listed hazardous waste
if it contains any of the constituents of
concern at a concentration equal to or
greater than the hazardous
concentration identified for that
constituent. You must make a
determination that all of the
constituents of concern in your waste
are below the hazardous concentrations
to claim that your wastes remain
nonhazardous. We are proposing the
following specific regulatory language
for the two wastes:
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 the
constituents identified in §26li32(b)(3)(ui) at
a concentration equal to or greater than the
hazardous level set for that constituent as
demonstrated by the procedures specified in
§261.32(b).
K168 Wastewater treatment sludges from
the production of triarylmethane dyes and
pigments (excluding triarylmethane pigments
Using aniline as a feedstock), unless these
wastes do not contain any of the constituents
identified in §261.32(b)(3)(iii) ata
concentration equal to or greater than the
hazardous level set for that constituent as
demonstrated by the procedures specified in
§261.32(b).
The constituents and levels in these
listing descriptions would be those
given in Tables IV-1 for Filter Aids and
Table IV-2 for TAM sludges. Section V
describes the steps you must follow to
implement the concentration-based
listing.
We solicit comment on the proposed
list of constituents and their levels.
Specifically, based on the rather high
levels set for some constituents (e.g.,
diphenylamine, formaldehyde for TAM
sludges), EPA is considering removing
these. These levels may be unlikely in
these wastes, and may not merit
analysis. We seek any information that
may assist us in deciding on whether we
should retain all of these constituents.
We also solicit comment as to whether
any other constituents (e.g., any others
in Table HI-3) should be added to the
regulatory lists in Tables IV-1 or IV-2.
TABLE IV-1 .—CONCENTRATION
LEVELS FOR SPENT FILTER AIDS
Constituents
Aniline
Benzaldehyde
Chloroaniline, p-
Cresol, p-
Dimethylaniline, N,N-
Dimethoxybenzidine, 3,3-
Diphenylamine
Diphenylhydrazine, 1,2-
Formaldehyde
Naphthalene
Phenol
Phenylenediamine, p-
Toluidine, o-
Toiuidine, p-
(")
n
Concentra-
tion levels
(mg/kg)**
** Relevant data are not included at the
present time due to business confidentiality
concerns.
TABLE IV-2.—CONCENTRATION
LEVELS FOR TAM SLUDGES
Constituent
Benzaldehyde
Dimethylarnine, N,N-
Diphenylamine
Formaldehyde
Toiuidine o-
Toluidine p-
(") '
Concentra-
tion levels
(mg/kg)
5000
300
27,000
7000
13
23
D
"Relevant data are not included at the
present time due to business confidentiality
concerns.
As required under §261.30 (b), we are
adding those constituents that are the
bases for listings to Appendix-VH of Part
261, "Basis for Listing Hazardous
Waste." Thus, we are proposing to add
the constituents in Table FV-1 for K167
(filter aids), and the constituents in
Table IV-2 for K168 (TAM sludges) to
Appendix VII. In addition, several
constituents in Tables IV-1 and IV-2 are
not currently listed on Appendix VIII to
Part 261, "Hazardous Constituents."
EPA places constituents on Appendix
VIII if they have been shown in
scientific studies to have toxic,
carcinogenic, mutagenic, or teratogenic
effects on humans or other life forms
(see 261.11 (a) (3)). The Risk Assessment
Background Document contains the
detailed toxicological data for all
constituents we evaluated, including the
specific chemicals that we are proposing
to add to Appendix VDI in today's rule:
benzaldehyde, N,N-dimethylaniline, p-
cresol, and p-phenylenediamine, and
another chemical, the identity of which
is not given due to business
confidentiality concerns. While cresol
and phenylenediamine are currently
listed on Appendix VIII, the precise
isomers are not specified. Therefore, we
are proposing to add these specific
isomers. If, in response to comment, we
decide to add any additional
constituents to the chemicals of concern
in either concentration-based listing,
then we would also add those
constituents to Appendix VII, and to
Appendix VET, if necessary.
In proposing to promulgate a
concentration-based listing for filter aids
and TAM sludges under 40 CFR
261.11 (a) (3), we considered the factors
given under 40 CFR 261.11 (a) (3) and
believe that these wastes pose a
substantial present or potential hazard
to human health or the environment at
the proposed listing levels. We
considered nearly all of these factors as
part of the risk assessment described in
today's rule. Specifically, we considered
the constituents' toxicity/concentration,
mobility, persistence, and
bioaccumulation potential in setting the
concentration-based levels
(corresponding to factors (I) through (vi)
given in § 261.11 (a) (3)). As described in
the risk assessment section, we
considered municipal landfills as the
"plausible" management practice (factor
(vii)), and evaluated the waste quantities
generated by facilities (factor viii).
Concerning factor (ix), we examined
damage cases for the dye and pigment
industries for the 1994 proposed rule
(see Risk Assessment Support for Dye
and Pigment Listing Determination,
November 29 1994; document number
S0333, EPA Docket No. F-94-DPLP-
FFFFF). However none of those cases
provide any information on the possible
damages associated with the two wastes
at issue in today's proposal. Finally, we
considered other regulatory programs
(factor (x)), when appropriate. No other
regulatory program EPA identified
adequately addressed the risks posed by
the wastes. However, as noted in
Section IV.C, we considered the
protection afforded by the Clean Water
Act, and the regulations being
considered for leachate from landfills.
As a result of this consideration, we are
proposing to temporarily defer any
regulation of landfill leachate that may
be derived from the wastes proposed for
listing, provided certain conditions are
met.
B. What Are We Proposing for
Anthraquinone Sludges?
We are proposing not to list
wastewater treatment sludges from the
production of anthraquinone dyes and
pigments. As described earlier in this
notice, the only constituents that were
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40209
found in wastes that could be attributed
_ to anthraquinone production (the
" identities are not given due to business
confidentiality concerns) do not have
health-based benchmarks. We did not
receive any data in comments on the
1994 proposed rule that would allow us
to estimate such benchmarks.
Discussion of the details of waste
generation and management for this
waste cannot be released at this time
due to business confidentiality
concerns.
Therefore, we are proposing not to list
anthraquinone sludges because we
cannot identify any health threat from
these wastes. Further discussion on the
generation of this waste cannot be
released at this time due to CBI
constraints. We do not find any
demonstrated risk from the constituents
that we can attribute to anthraquinone
production. We seek comment on this
decision not to list this waste.
C. What Is the Status of Landfill
Leachate From Previously Disposed
Wastes?
Leachate derived from the treatment,
storage, or disposal of listed hazardous
wastes is classified as a hazardous waste
by virtue of the "derived-from" rule in
40 CFR 261.3(c)(2), The Agency has
been clear in the past that hazardous
waste listings apply to wastes disposed
of prior to the effective date of a listing,
even if the landfill ceases disposal of the
waste when the waste becomes
hazardous (see 53 FR 31147; August 17,
1988). We also have a well-established
interpretation that listings likewise
apply to leachate derived from the
disposal of listed hazardous wastes,
including leachate derived from wastes
disposed before a listing effective date
which meet the listing description. We
are not reopening any of these issues by
the present notice.
Of course, as set out in detail in the
August 1988 notice, this does not mean
that landfills holding wastes which are
subsequently listed as hazardous
become subject to Subtitle C regulation.
However, previously disposed wastes
now meeting a listing description,
including residues such as leachate
which are derived from such wastes,
which are "actively managed" do
become subject to Subtitle C regulation
(id.). In many, indeed most
circumstances, active management of
leachate would be exempt from Subtitle
C regulation because the usual
management practice is discharge either
to POTWs via the sewer system, where
leachate mixes with domestic sewage
and is excluded from RCRA jurisdiction
(see RCRA Section 1004(27) and 40 CFR
261.4 (a) (1)), or to navigable waters, also
excluded from RCRA jurisdiction (see
RCRA Section 1004(27) and 40 CFR
261.4(a)(2)). In addition, .management of
leachate in wastewater treatment;tanks
prior to discharge under the CWA is
also exempt from RCRA regulation (40
CFR264.1(g)(6)).
However, we believe, because the
proposed listings for the two categories
of dj'-e and pigment wastes (K167-K168)
are concentration-based listings, it
would be difficult to know whether the
previously disposed wastes that meet
the narrative description of K167-K168
are in fact K167-K168 hazardous wastes
that exceed the listing levels. We don't
anticipate that records documenting the
concentrations of proposed constituents
of concern for these wastes exist for
previously disposed wastes. Therefore,
absent a finding that the wastes, when
disposed, would have met the.listing
being proposed today, the previously
disposed wastes (including landfill
leachate and gas condensate derived
from these wastes that are actively
managed) could not be classified as
K167-K168.
However, if actively managed landfill
leachate and gas condensate derived
from the two categories of dye and
pigment wastes proposed to be listed in
today's rule could be classified as K167-
K168, we are concerned about the
potential disruption in current leachate
management that could occur and,the
possibility for redundant regulation.
Recently, this issue was raised to the
Agency in the context of the petroleum
refinery waste listings (see 63 FR 42173;
August 6, 1998). A commenter
expressed concern that, because some of
their nonhazardous waste landfills
received petroleum wastes which are
now listed, the leachate that is collected
and managed from these landfills would
be classified as hazardous. The
commenter argued that this could lead
to increased treatment and disposal
costs without necessarily any
environmental benefit. After examining
and seeking comment on this issue; we
published a final rule that temporarily
defers regulation of landfill leachate and
gas condensate derived from certain
listed petroleum refining wastes (K169-
K172) that were disposed before, but not
after, the new listings became effective,
provided certain conditions are met (see
64 FR 6806; February 11,1999).
At the time this issue was brought to
the Agency's attention in the context of
the petroleum refinery waste listings,
EPA's Office of Water had recently :
proposed national effluent limitations
guidelines and pretreatment standards
for wastewater discharges—most
notably, leachate—from certain types of
landfills (see 63 FR 6426; February 6,
1998). In support of this proposal, EPA
conducted a study of the volume and
chemical composition of wastewaters
generated by both Subtitle C (hazardous
waste) and Subtitle D (nonhazardous
waste) landfills, including treatment
technologies and management practices
currently in use. EPA proposed effluent
limitations (for nine pollutants in the
Nonhazardous Subcategory) for direct
dischargers (see 63 FR 6463). Most
pertinent to finalizing the temporary
deferral for the petroleum refining
wastes, EPA did not propose
pretreatment standards for Subtitle D
landfill wastewaters sent to POTWs
because the Agency's information
indicated that such standards were not
required.
The conditions included in the
temporary deferral published on
February 11, 1999 are that the leachate
is subject to regulation under the Clean
Water Act, and the leachate is not stored
in surface impoundments after February
13, 2001. See 40 CFR 261.4(b)(15). We
believed that it was appropriate to
temporarily defer the application of the
new waste codes to such leachate in
order to avoid disruption of ongoing
leachate management activities while
the Agency decides how to integrate the
RCRA and CWA regulations consistent
with RCRA section 1006(b)(l). As
discussed above, we do not anticipate
that this situation is likely to occur
because the nature of the concentration-
based listing makes it difficult to
determine whether the wastes
previously disposed met the
concentrations at the time of disposal.
However, to the extent previously
disposed of dye and pigment wastes
could be determined to meet the listing
description and levels, we believe that
the same rationale fully discussed in the
February 11, 1999 rulemaking applies in
this situation as well. As such, we
would be concerned about forcing
pretreatment of leachate even though
pretreatment is neither required by the
CWA nor needed. Therefore, we are
proposing to temporarily defer landfill
leachate and gas condensate derived
from the two categories of dye and
pigment wastes, with the same
conditions as described in 40 CFR
261.4(b)(15) for petroleum wastes. We
believe the issue of whether disruptions
can be minimized through integration of
CWA and RCRA rules will be more
amenable to resolution once the CWA
rulemaking is completed.
We request any available information
on whether or not the two categories of
dye and pigment wastes previously
disposed in nonhazardous landfills
contained constituents of concern
identified for these wastes at
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concentrations equal to or greater than
the proposed listing levels. Even if we
don't receive any information that
previously disposed dye and pigment
wastes will result in generation of
hazardous landfill leachate and gas
condensate, we nonetheless intend to
finalize the temporary deferral for
landfill leachate and gas condensate
from these wastes. This is because
someone may discover this problem
later (after the effective date of the
listing), so, by having a temporary
deferral in place, it would be possible to
avoid disruption of ongoing leachate
management activities while we further
examine this issue and await the CWA
final rule.
V. Generator Requirements for
Implementation of Concentration-Based
Listings
We are proposing that the
concentration-based listings be self-
implementing. This requires that you
(the waste generator) meet the necessary
conditions to determine whether or not
your waste is hazardous based on the
procedures we describe below. We have
identified the constituents of concern
for the two categories of dye and
pigment wastes in Tables IV-1 and IV-
2. We have also identified the listing
level for each of these constituents in
the same tables. We are proposing that
you use this information, in conjunction
with waste analysis results, to
determine if your waste is a listed
hazardous waste.
Unless you make a determination that
your waste is nonhazardous using the
specified procedures, you are subject to
the existing requirements under RCRA
for persons who generate hazardous
waste. Thus, if you are not already a
hazardous waste generator, you must
notify the EPA, according to section
3010 of RCRA, that you generate a
hazardous waste. You are also subject to
all applicable requirements for
hazardous waste generators in 40 CFR
262.
If you determine that your waste is
nonhazardous, we are proposing to
require, under the authority of sections
2002 and 3007 of RCRA, that you keep
certain records of your waste and
submit a notification and certification to
the EPA claiming you have a
nonhazardous waste. Following a
nonhazardous claim, you would have a
continuing obligation to ensure that
your waste meets all of the proposed
conditions and requirements for the
waste to be deemed nonhazardous.
A. Do I Have to Determine Whether or
Not My Waste Is Hazardous?
If you want to assume that your waste
is hazardous as-generated or you don't
want to analyze it to make a hazardous
waste determination, you may do that.
In such a case, we are proposing your
waste would be considered hazardous
as-generated and subject to all
applicable RCRA Subtitle C hazardous
waste requirements, effective as of the
effective date of the final rule or initial
generation of the waste. However, if you
want your waste to be nonhazardous as-
generated, you must perform the waste
analysis steps in V.C and determine
your waste to be nonhazardous. If your
waste is determined to be nonhazardous
and claimed to be nonhazardous within
60 days (see V.D) following the effective
date of the final rule or initial
generation of the waste, we are
proposing that none of the waste
generated following the effective date of
the rule or initial generation is
hazardous as-generated.
If you elect not to make this
determination by the 60th day, or
alternatively determine that your waste
is hazardous, you may use the same
waste analysis procedures (see V.C) to
make a nonhazardous determination for
your waste at anytime after the 60th
day. If this determination shows your
waste as-generated is nonhazardous, it
can be claimed to be nonhazardous (see
V.D). We are proposing that the
nonhazardous claim for waste as-
generated, if submitted more than 60
days after the effective date of the rule
or initial generation, would only
become effective on the date when you
receive a written receipt or confirmation
that your notification and certification
has been delivered to the EPA. After you
have received this receipt or
confirmation, any waste generated on or
after the generation date of the waste
that was analyzed for the nonhazardous
determination may be claimed a
nonhazardous waste that is not subject
to Subtitle C, including LDR
requirements. Any waste generated
prior to that generation date remains
hazardous.
We request comment on whether the
60 day time limit for making a
hazardous or nonhazardous waste
listing determination and nonhazardous
waste claim should be longer (e.g., 90
days) to allow adequate time for
sampling and analyses.
B. How Do I Manage My Waste During
the Period Between the Effective Date of
the Final Rule and Initial Hazardous
Waste Determination for My Waste?
You cannot dispose of your waste as
nonhazardous until you complete an
initial determination to show that your
waste is nonhazardous. Because the
potential hazard from your waste is due
to its placement on land, we are
proposing that, as a condition of the
waste being nonhazardous, you must
store your waste in containers, or in
another manner that does not involve
land placement.
Because the interim storage period for
the waste prior to a hazardous waste
determination is relatively short (60
days), we request comment on whether
it is necessary to impose such a
condition. Given that the generator
would be subject to enforcement for
improper storage if the waste turns out
to be hazardous, generators may have
adequate incentives to store the waste in
compliance with Subtitle C
requirements during the interim period.
Alternatively, we could condition the.
waste being nonhazardous on the
generator's storing the waste in
accordance with the requirements
described in 40 CFR 262.34. This would
be an appropriate precaution in case the
waste turns out to be hazardous. We
also request comment on this approach.
C. What Are the Steps I Must Follow To
Determine Whether or Not My Waste Is
Hazardous?
We are proposing the following waste
analysis steps for making a
determination that your waste is
nonhazardous as-generated:
1. You must collect a minimum of
four representative samples of your
waste and analyze each for the
constituents of concern identified in
Tables IV-1 or IV-2. These samples
must be adequate to determine the
maximum levels of constituents that
may be in your waste. Instead of
analyzing for a constituent, you may
also apply process knowledge
(knowledge of the constituents in your
waste based on the materials,
degradation products, and
manufacturing processes used) to
document that a constituent could not
be present in the waste. You should
note, however, that process knowledge
cannot be used to determine a level of
constituent in your waste.
2. Compare the sampling and analyses
results or process knowledge
information (documentation that a
constituent could not be present in the
waste) for the constituents of concern in
your waste to the hazardous
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40211
concentration levels set for these
constituents.
3. If none of your waste samples
contain any of the constituents of
concern at concentrations equal to or
greater than the hazardous
concentration levels set for these
constituents, you can determine that
your waste is nonhazardous. However,
if any of your waste samples contains
any of the constituents of concern at a
concentration equal to or greater than
the hazardous concentration level set for
that constituent, your waste is a listed
hazardous waste and subject to all
applicable RCRA Subtitle C hazardous
waste requirements.
We would consider requiring less
than four representative samples of the
waste for the initial hazardous waste
determination if this could be
supported. We request comment on
whether generators can reliably
determine the maximum concentration
of constituents in the waste with less
than four samples. We also request
comment on whether the generators
should be allowed to use process
knowledge information, in lieu of
testing, to support claims that
constituents of concern could not be
present in their wastes. Alternatively,
we could require testing for all
constituents of concern in the initial
testing.
We are proposing that the maximum
concentration of any constituent
detected in any sample must be below
the established listing level in order for
you to determine that the waste is
nonhazardous. We are proposing this
approach because we believe it is the
most protective, and because it does not
rely on any statistical manipulation of
waste analysis data to determine
constituent concentrations in the waste.
However, we request comment on
whether the generator should be
allowed to average constituent levels in
multiple waste samples. Under that
approach, the generator would calculate
concentrations using an upper
confidence limit on the mean (e.g., 95th
percent) and compare this limit to the
. listing levels established for the
constituents.
D. What Are the Requirements for a
Waste Determined To Be Nonhazardous,
and How Do I Claim My Waste To Be
Nonhazardous?
We are proposing that after you have
determined your waste is nonhazardous,
but prior to disposing the waste as
nonhazardous, you must claim your
waste to be nonhazardous as follows:
1. You must submit a one-time
notification to the EPA. The notification
must include the facility name, address,
and telephone number of an authorized
representative, description of the waste
and potential waste code, and an •
estimate of the average annual volume
of waste claimed to be nonhazardous.
The notification must also include a
certification that none of your waste
samples contain any of the constituents
of concern identified for your waste at
concentrations equal to or greater'than
the hazardous concentration levels set
for these constituents, and these levels
were determined without dilution of the
waste. By dilution, we mean addition of
other waste or media to your waste after
generation, which do not meet the
narrative listing description for your
waste, in order to reduce the
concentration of the constituents of
concern in your waste to below listing
levels. '.
2. The notification and certification
must be sent by certified mail return
receipt, or by written confirmation of
delivery from a commercial delivery
service.
3. The certification must be signed by
a responsible corporate official and
must state as follows: "I certify under
penalty of law that none of the waste
samples contain any of the constituents
of concern identified for this waste at
concentrations equal to or greater than
the hazardous concentration levels set
for these constituents, and that these
levels were determined without dilution
of the waste. Based on information and
belief formed after reasonable inquiry,
the statements and information in the
document are true, accurate, and
complete. I am aware that there are
significant penalties for submitting a
false certification, including the
possibility of fine and imprisonment."
We are proposing to require the :
notification and certification under: the
authority of Sections 2002 and 3007 of
RCRA. The notification and certification
will provide confirmation that certain
wastes that meet the narrative
description for the two categories of dye
and pigment wastes are not RCRA
hazardous wastes. We are not proposing
to require submission of waste analysis
data to the EPA for review or approval.
Instead, we propose to require, also
under the authority of sections 2002 and
3007 of RCRA, that certain records be
kept on-site (see below). We request'
comment on whether generators should
be required to submit waste analyses
data along with the notification.
E. What Records am I Required To Keep
On-Site To Support a Nonhazardous
Claim for My Waste?
We are proposing that you must, at a
minimum, keep the following
information on-site:
1. A copy of the notification and
certification sent to the EPA and
documentation that it was received.
2. The sampling and analysis plan
used for collecting and analyzing
representative samples of your waste.
3. The initial sampling and analyses
data and process knowledge information
(if used) that support a nonhazardous
claim for your waste.
4. All follow-up sampling and
analyses data and process knowledge
information (if used) for the most recent
three years.
F. What Happens if I Do Not Meet the
Notification and Recordkeeping
Requirements for a Waste That I Have
Determined To Be Nonhazardous?
We are requiring notification and
recordkeeping under the authority of
sections 2002 and 3007 of RCRA. These
provisions are requirements, not
conditions of the waste being
nonhazardous. Failure to comply with
these requirements may result in an
enforcement action under Section 3008
of RCRA. This section of the statute
permits the imposition of civil penalties
in an amount up to $27,500 for each day
of noncompliance.
G. What Are the Follow-Up Waste
Analysis Requirements for My
Nonhazardous Waste?
You must analyze a minimum of one
representative sample of the
nonhazardous waste every calendar year
it is generated. You must also analyze a
minimum of one representative sample
.of the nonhazardous waste anytime,
after the initial waste analysis, there is
a process change that may increase the
concentrations of hazardous
constituents of concern in the waste. If
process change has not occurred, you
may use the results of the initial waste
analysis to create a more tailored list of
the constituents of concern in your
waste and test just for those
constituents. If your waste is in fact
hazardous (i.e., if it contains any
constituent of concern at or above the
regulatory level), you are liable for
compliance with Subtitle C
requirements.
We request comment on whether a
minimum of four representative samples
should be required for follow-up waste
analysis and whether follow-up waste
analysis required every calendar year
should be terminated after three
consecutive years of verification that the -
waste remains nonhazardous. This
would be based on the waste generator
performing the required follow-up
analysis on the waste and finding that
none of the waste samples contain any
of the constituents of concern at
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concentrations at or above the
hazardous concentration levels set for
these constituents for three consecutive
years.
H. What Happens if My Waste
Constituent Concentration Are No
Longer Below the Listing
Concentrations?
If follow-up waste analysis (or any
analysis of your waste after the initial
waste analysis) finds your waste
contains one or more constituents of
concern at concentrations at or above
their hazardous concentrations, your
waste is a listed hazardous waste and
subject to all applicable RCRA Subtitle
C hazardous waste requirements. To
claim the waste nonhazardous again,
you must repeat the initial waste
analysis and show that none of the
waste samples contain any of the
constituents of concern at or above their
hazardous concentrations. You must
also submit a new notification and
certification for your waste.
I. Can I Treat My Waste to Below Listing
Concentrations and Then Claim My
Waste To Be Nonhazardous?
If your waste is hazardous as-
generated, you can treat the waste to
make it nonhazardous. However, if your
waste is hazardous as-generated, it is
subject to all applicable RCRA Subtitle
C hazardous waste requirements and
would be required to be treated in any
case to meet the proposed LDR
treatment standards before any
placement in a land-based unit. Under
the proposed LDR treatment standards
(see Section VI), the wastes must be
treated using specified technologies
("technology standards"). We believe
that compliance with LDR treatment
standards is likely to result in
nonhazardous concentrations of
constituents in the waste. However,
based on the mixture and derived-from
rules, the treated waste would still carry
the hazardous waste code. Therefore,
you may choose to use the initial waste
determination procedures for waste as-
generated (see V.C above) to determine
if your treated waste is nonhazardous. If
your treated waste is determined to be
nonhazardous and you want to claim it
as nonhazardous, you must follow the
same procedures as those required to
claim "as-generated" waste
nonhazardous (see V.D above). We are
proposing that the non-hazardous
claims for treated waste would only
become effective on the date when you
receive a written receipt or confirmation
that your notification and certification
has been delivered to the EPA. Thus,
prior to the effective date, your waste
still remains a listed hazardous waste
and must meet all applicable RCRA
Subtitle C hazardous waste
requirements.
/. Alternative Implementation Approach
As an alternative to the
implementation approach proposed in
today's rule, we may adopt a more
streamlined approach for waste
generators to use in self-implementing
the concentration-based listings for
these wastes. Under a streamlined
approach, we would not require the
waste generator to perform sampling
and analysis procedures as conditions to
determine that its waste (which meets
the narrative description of K167 or
K168) is nonhazardous. We would also
not have notification and recordkeeping
requirements for a waste determined to
be nonhazardous. However, the levels
for the constituents of concern in the
waste would have to be below the
listing levels, if the waste generated
after the effective date of the rule is to
be handled as nonhazardous waste.
Therefore, after the effective date of the
rule, if the waste is in fact hazardous
(i.e., if it contains any constituent of
concern at or above the regulatory
level), the waste would be subject to
Subtitle C requirements. We may also
adopt an approach somewhere in the
middle that includes some minimal
waste characterization requirements.
The streamlined implementation
approach discussed above for the
concentration-based listings would be
similar to the existing program for
determining whether a waste exhibits a
hazardous characteristic. At this time,
EPA believes the approach presented
earlier in today's proposal (see V. A-I)
is the more appropriate approach for
this listing since, in contrast to the
situation with characteristic wastes, we
have performed analyses specific to this
industry and have determined that the
constituents of concern are likely to be
present in the industry's waste.
However, we will give careful
consideration to any arguments
presented or relevant waste analysis
data submitted in response to today's
proposal (e.g., data showing that only a
small portion of the wastestreams in the
industry exceed the listing levels) in
order to decide whether a more
streamlined approach is warranted. We
request comment on possibly allowing
the waste generators to use a more
streamlined approach for self-
implementing the concentration-based
listings proposed in today's rule.
VI. Proposed Treatment Standards
Under RCRA's Land Disposal
Restrictions
A. What Are EPA's Land Disposal
Restrictions (LDRs)?
The statute requires EPA to establish
treatment standards for all hazardous
wastes that are land disposed. These are
the so called "land disposal
restrictions" or LDRs. For any
hazardous waste identified or listed
after November 8, 1984, EPA must
promulgate these LDR treatment
standards within six months of the date
of identification or final listing (RCRA
Section 3004(g)(4), 42 U.S.C. 6924(g)(4)).
The statute also requires EPA to set as
these treatment standards "* * * levels
or methods of treatment, if any, which
substantially diminish the toxicity of
the waste or substantially reduce the
likelihood of migration of hazardous
constituents from the waste so that
short-term and long-term threats to
human health and the environment are
minimized." (RCRA Section 3004(m)(l),
42 U.S.C. 6924(m)(l)).
Wastes that meet treatment standards
established by EPA may be land
disposed. Wastes that do not meet these
standards are prohibited from land
disposal (except in units meeting a
stringent no-migration test). Each waste
proposed for listing as hazardous in this
rule will be subject to all the land
disposal restrictions on the same day
their respective listing becomes
effective.
B. How Does EPA Develop LDR
Treatment Standards?
To establish LDR treatment standards,
EPA first identifies the best
demonstrated available technology
(BOAT) for the hazardous constituents
present in the hazardous waste, and
then determines what constituent
concentrations can be achieved by the
technology or technologies identified as
BOAT.
EPA typically has established
treatment standards based on
performance data from the treatment of
the waste at issue, if such data are
available, and also from the treatment of
wastes with similar chemical and
physical characteristics or similar
concentrations of hazardous
constituents. Treatment standards
typically cover both wastewater and
nonwastewater waste forms on a
constituent-specific basis. The
constituents selected for regulation
under the LDR program are not
necessarily limited to those present in a
proposed listing , but also may include
those constituents or parameters that
will ensure that treatment technologies
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40213
are operated properly. For listed waste
EPA identifies these as "regulated
constituents" and they appear
individually in the Table at 40 CFR
268.40, along with their respective
treatment standards.
EPA may either designate a method of
treatment as the treatment standard or
develop a numerical treatment standard,
which could be satisfied by use of any
treatment technology (that doesn't entail
impermissible dilution). On the other
hand, if the treatment standard is a
designated method, that is the only
permissible means of treating the waste.
After developing'the LDR treatment
standards, we must also determine if
treatment capacity is available to treat
the expected volumes of wastes. If so,
the LDR treatment standards become
effective essentially at the same time a
listing does. If not, EPA may grant up
to a two-year national capacity variance
(NCV) during which time the LDR
treatment standards are not effective.
For a more detailed overview of the
Agency's approach for developing
treatment standards for hazardous
wastes, see the final rule on solvents
and dioxins (51 FR 40572, November 7,
1986) and section HI. A. 1 of the
preamble to the final rule that set land
disposal restrictions for the "Third
Third" wastes (55 FR 22535, June 1,
1990). EPA also has explained its BOAT
procedures in "Best Demonstrated
Available Technology (BOAT)
Background Document for Quality
Assurance/Quality Control Procedures
and Methodology (EPA/OSW, October
23, 1991)". This document is available
in the docket supporting this proposed
rulemaking.
C. What Treatment Standards Are
Proposed?
The Agency has previously
promulgated technology-specific
standards—i.e., in the words of the
statute, "methods of treatment"—for the
following Kl 67 core constituents of
concern: 3,3'-dimethoxybenzidine
(U091), 1,2-diphenylhydrazine (U099),
formaldehyde (U121), o-toluidine
(0328), p-toluidine (U353), and other
chemical(s), the identities of which are
not included due to business
confidentiality concerns. We also
promulgated technology-specific
standards for K168 core constituents of
concern: formaldehyde, o-toluidine, and
p-toluidine. Analytical complications
formed the basis of the Agency's
decision to promulgate technology-
based BOAT treatment standards (see 55
FR 22611, June 1,1990).
These pre-existing technology-specific
standards provide the starting point for
our analysis. We also assessed the
potential of developing numerical
standards for these and the other
constituents of concern in K167 and
K168. We found that numerical
treatment standards based on
performance of BOAT (combustion)
would nonetheless potentially result in
situations where threats to human
health and the environment are not
minimized, as required by section
3004 (m). This seeming anomaly is
explained by the fact that numerical
treatment standards based on
performance of combustion consist of an
analytical detection limit times a ;
variability factor. In this instance, this
numerical value would be significantly
above the risk-based model levels Of
concern which justify the listing, largely
due to high analytical detection limits
for some constituents. Thus, the >
numerical treatment standards
calculated in the accepted manner
would arguably not meet the "minimize
threat" language governing LDR
treatment standards in RCRA section
3004(m).1 As a result, we are not
inclined to pursue the use of numerical
treatment standards for K167 and K168.
In looking further at technology-
specific standards, we find that there is
significant structural similarity among
all the constituents of concern,
including those for which we have not
previously set technology-specific
standards. The constituents of concern
either have been demonstrated to be
treated effectively by the BOAT
technology to below detection, or are of
structural similarity that it can be
inferred that they would not be more
difficult to treat via combustion or other
destructive procedures. Hence, we
expect that all constituents of concern
for these two wastes are amenable to
similar methods of treatment. Therefore,
we find the previously promulgated
technology-specific standards to be ithe
BOAT for the K167 and K168. ;
We propose that the technology of
combustion (CMBST) be specified for
nonwastewater waste forms. For .
wastewater waste forms, we propose to
specify that one of two alternatives be
used: either a treatment train consisting
wet air oxidation (WETOX) or chemical
oxidation (CHOXD) followed by carbon
adsorption (CARBN), or treatment by
combustion (CMBST). We are confident
that these technologies in units subject
to either-Subtitle C rules, or eventually,
MACT standards for hazardous waste
combustors, both of which require
combustion units to meet specific
standards to assure proper combustion
at all times, will substantially diminish
the toxicity of the Kl 67 and K168
wastes so that short-term and long-term
threats to human health and the
environment are minimized. We repeat
that, because we are proposing to
express the treatment standards as
specified technologies, wastes must be
treated by the required technologies
before disposal.2
D. Other LDR-Related Provisions
The provisions in 40 CFR 268.45
would also be applicable for the
treatment and disposal of hazardous
debris cross-contaminated with K167 or
K168. Debris contaminated with K167
and/or K168 would be required to be
treated prior to land disposal, using
specific technologies from one or more
of the following families of debris
treatment technologies: extraction,
destruction, or immobilization.
Hazardous debris contaminated with a
listed waste that is treated by an
immobilization technology specified in
40 CFR 268.45 Table 1 is a hazardous
waste and must be managed in a
hazardous waste facility. Residuals
generated from the treatment of debris
contaminated with K167 or K168 would
remain subject to the treatment
standards proposed today. Residuals
that no longer exceed the hazardous
listing levels may be disposed in
nonhazardous waste units. See 57 FR
37277, August 18, 1992, for additional
information on the applicability, scope,
and content of the hazardous debris
provisions.
Lastly, because land disposal also
includes placement in injection wells
(40 CFR 268.2(c)) application of the land
disposal restrictions to K167 and K168
requires the modification of injection
well requirements found in 40 CFR 148.
We propose that K167 and K168 be
prohibited from underground injection.
Therefore, K167 and K168 wastes may
not be underground injected unless they
have been treated in compliance with
the LDR treatment standards or a no
migration petition for these wells has
been approved.
1 This is not to say that the listing levels
necessarily represent "minimize threat" levels for
these constituents. EPA is pursuing these questions
in the HWIR rulemaking. Our point here is that the
levels justifying the listing certainly are not lower
than whatever levels EPA may eventually
determine minimize threat levels to be. and that a
numerical standard developed using our standard
methodology would be higher still (essentially due
to high detectionlimits).
2 There are two exceptions. Where the treatment
technology is not appropriate to the waste,
regulations provide a petition process whereby the
generator or treatment facility may petition the
Administrator for a variance (see 40 CFR 268.44).
In addition, persons may petition the Administrator
for an alternate treatment method by showing that
the alternate method can achieve a measure of
performance equal to the method specified by rule
(see 40 CFR 268.42(b)).
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£. 7s There Treatment and Management
Capacity Available for These Proposed
Newly Identified Wastes?
1. What Is a Capacity Determination?
When EPA develops new hazardous
waste LDR regulations, the law (RCRA)
requires us to determine whether
adequate alternative treatment capacity
exists nationally to manage the waste
and meet the new treatment standards.
The LDRs are effective when
promulgated unless EPA grants a
national capacity variance from the
otherwise-applicable date and
establishes a different date (not to
exceed two years beyond the statutory
deadline) based on "* * * the earliest
date on which adequate alternative
treatment, recovery, or disposal capacity
which protects human health and the
environment will be available" (RCRA
section 3004(h)(2). 42 U.S.C.
6924(h)(2)).
Our capacity analysis methodology
focuses on the amount of waste
currently disposed on the land, which
will require alternative or additional
treatment as a result of the LDRs. The
quantities of wastes that are not
disposed on the land, such as discharges
regulated under NPDES, discharges to a
POTW. or treatment in a RCRA exempt
tank, are not included in the quantities
requiring additional treatment as a
result of the LDRs. Also, land disposed
wastes that do not require alternative or
additional treatment are excluded from
the required capacity estimates (i.e.,
those that are currently treated to meet
standards). Land disposed wastes
requiring alternative or additional
treatment or recovery capacity that is
available on-site or within the same
company also are excluded from the
required commercial capacity estimates.
The resulting estimates of required
commercial capacity are then compared
to estimates of available commercial
capacity. If adequate commercial
capacity exists, the waste is restricted
from further land disposal. If adequate
capacity does not exist, EPA has the
authority to grant a national capacity
variance.
In making the estimates described
above, the volume of waste requiring
treatment depends on the current waste
management practices employed by the
waste generators before this proposed
regulation is finalized and becomes
effective. Data on waste management
practices for these wastes were collected
during the development of this
proposed rule. However, we realize that
as the regulatory process proceeds,
generators of these wastes may decide to
minimize or recycle their wastes or
otherwise alter their management
practices. Thus, EPA will monitor
changes and update data on current
management practices as these changes
will affect the volume of wastes
ultimately requiring commercial
treatment or recovery capacity.
The commercial hazardous waste
treatment industry can change rapidly.
For example, national commercial
treatment capacity changes as new
facilities come on-line or old facilities
go off-line and as new units and new
technologies are added at existing
facilities. The available capacity at
commercial facilities also changes as
facilities change their commercial status
(e.g., changing from a fully commercial
to a limited commercial or "captive"—
company owned—facility). Thus, EPA
also continues to update and monitor
changes in available commercial
treatment capacity.
We request data on the annual
generation volumes and characteristics
of wastes affected by this proposed rule,
including K167 and K168 in wastewater
and nonwastewater forms, soil or debris
contaminated with these wastes,
residuals generated from the treatment
or recycling of these wastes, and the
current and planned management
practices for the wastes, waste mixtures,
and treatment residuals. We also request
data on the current treatment or
recovery capacity capable of treating
these wastes, facility and unit permit
status related to treatment of the
proposed wastes and any plans that
facilities may have to expand or reduce
existing capacity, or construct new
capacity. Of particular interest to us are
waste characteristics, such as pH, total
organic carbon content, constituent
concentrations, and physical forms that
may limit the availability of treatment
technologies.
2. What Are the Capacity Analysis
Results?
This preamble only provides a brief
summary of the capacity analysis
performed to support this proposed
regulation. For additional and more
detailed information, please refer to the
"Background Document for Capacity
Analysis for Land Disposal Restrictions:
Newly Identified Dye and Pigment
Process Wastes (Proposed Rule), June
1999."
For this capacity analysis, we
examined data on waste characteristics
and management practices gathered for
the purpose of the dyes and pigments
hazardous waste listing determination.
The source for these data is primarily
the 1992 RCRA Section 3007 survey and
the follow-up survey specific to these
wastes conducted in 1997 (see the
docket for more information on these
survey instruments—Background
Document for proposed hazardous
waste listing of Dyes and Pigments
Wastes). The available data sources
indicate that there are no quantities of
either the K167 or K168 wastewater that
will require alternative commercial
treatment, and therefore this volume is
assumed to be zero. There is adequate
wastewater treatment capacity available
should the need for treatment of the
wastewater form of these wastes arise.
EPA estimates of the quantity of
nonwastewater forms of K167 and K168
that may require alternative commercial
treatment and be managed off-site at a
commercial hazardous waste treatment
facility are not included due to business
confidentiality concerns. Also, the
ultimate volume of waste estimated to
require alternative or additional
commercial treatment may change if the
final listing determination changes;
should this occur, we will revise the
capacity analysis accordingly. The
actual quantity of waste requiring
commercial treatment may be smaller
due to facility closures after 1992 (the
year of RCRA Section 3007 survey) and
changes in product formulations. We
recognize the batch process nature of
this industry and the speed at which
facilities may change product
formulations.
As described in the BOAT section
above, EPA is proposing that the
treatment standards be mandated
treatment methods. The proposed
treatment standard for nonwastewaters
is combustion. We estimate that the
commercially available sludge and solid
combustion capacity is at least 300,000
tons per year and therefore sufficient to
treat the lesser volume of these wastes
which would newly require treatment.
Therefore, we are proposing to not grant
a national capacity variance from LDR
treatment standards for these wastes.
For soil and debris contaminated with
these wastes, we believe that the vast
majority of contaminated soil and debris
will be managed on-site and therefore
would not require substantial
commercial treatment capacity.
Therefore, we are proposing to not grant
a national capacity variance for
hazardous soil and debris contaminated
with the newly listed wastes covered
under this proposal. Based on the
questionnaire responses, there are no
data showing mixed radioactive wastes
or underground injected wastes
associated with the proposed listings.
We are also proposing to not grant a
national capacity variance for mixed
radioactive wastes (i.e., radioactive
wastes mixed with K167 or K168) or
wastes being underground injected.
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40215
We solicit any updated or additional
information pertinent to this
determination. We also request
comments on current and future
management practices and the volumes
managed for these wastes.
VII. State Authority and Compliance
A. How Are States Authorized Under
RCRA?
Under section 3006 of RCRA, EPA
may authorize qualified States to
administer and enforce the RCRA
hazardous waste program within the
State. (See 40 CFR Part 271 for the
standards and requirements for
authorization.) Following authorization,
EPA retains enforcement authority
under Sections 3007, 3008, 3013, and
7003 of RCRA, although authorized
States have primary enforcement
responsibility.
Before the Hazardous and Solid Waste
Amendments of 1984 (HSWA) amended
RCRA, a State with final authorization
administered its hazardous waste
program entirely in lieu of the Federal
program in that State. The Federal
requirements no longer applied in the
authorized State, and EPA could not
issue permits for any facilities located in
the State with permitting authorization.
When new, more stringent Federal
requirements were promulgated or
enacted, the State was obligated to enact
equivalent authority within specified
time-frames. New Federal requirements
did not take effect in an authorized State
until the State adopted the requirements
as State law.
By contrast, under Section 3006 (g) of
RCRA, 42 U.S.C. 6926(g), new
requirements and prohibitions imposed
by the HSWA (including the hazardous
waste listings finalized in this notice)
take effect in authorized States at the
same time that they take effect in non-
authorized States. While States must
still adopt HSWA-related provisions as
State law to retain final authorization,
EPA is directed to implement those
requirements and prohibitions in
authorized States, including the
issuance of permits, until the State is
granted authorization to do so.
Authorized States are required to
modify their programs only when EPA
promulgates Federal standards that are
more stringent or broader in scope than
existing Federal standards. Section 3009
of RCRA allows States to impose
standards more stringent than those in
the Federal program. See also 40 CFR
271.1 (I). For those Federal program
changes, both HSWA and non-HSWA,
that are less stringent or reduce the
scope of the Federal program. States are
not required to modify their programs.
Less stringent regulations, both HSWA
and non-HSWA, do not go into effect in
authorized States until those States
adopt them and are authorized to
implement them.
B. What Is the Effect of Today's Proposal
on State Authorizations?
We are proposing today's rule
pursuant to HSWA authority. The.
listing of the new K-wastes is
promulgated pursuant to RCRA Section
3001 (e) (2), a HSWA provision.
Therefore, we are adding this rule to
Table 1 in 40 CFR 271.1 (j), v/hich
identifies the Federal program
requirements that are promulgated
pursuant to HSWA and take effect in all
States, regardless of their authorization
status. The land disposal restrictions for
these wastes are promulgated pursuant
to RCRA Section 3004 (g) and (m), also
HSWA provisions. Table 2 in 40 CFR
271.1 (j) is modified to indicate that
these requirements are self-
implementing. States may apply for
either interim or final authorization for
the HSWA provisions in 40 CFR
271.1(j), as discussed below. Until the
States receive authorization for these
more stringent HSWA provisions, EPA
will implement them.
A State submitting a program
modification for the portions of this rule
promulgated pursuant to HSWA
authority may apply to receive either
interim authorization under RCRA '.
section 3006 (g) or final authorization
under 3006 (b), if the State requirements
are, respectively, substantially
equivalent or equivalent to EPA's
requirements. States can only receive
final authorization for program
modifications implementing non-HSWA
requirements. The procedures and
schedule for final authorization of State
program modifications are described in
40 CFR 271.21. It should be noted that
all HSWA interim authorizations are
currently scheduled to expire on
January 1, 2003 (see 57 FR 60129,
February 18, 1992).
Section 271.21(e)(2) of EPA's State
authorization regulations (40 CFR Part
271) requires that States with final
authorization modify their programs to
reflect Federal program changes and
submit the modifications to EPA for
approval. TKe deadline by which the
States must modify their programs to
adopt this regulation is determined by
the date of promulgation of a final rule
in accordance with section 271.21 (e) (2).
Table 1 at 40 CFR 271.1 is amended
accordingly. Once EPA approves the
modification, the State requirements
become RCRA Subtitle C requirements.
States with authorized RCRA
programs already may have regulations
similar to those in this proposed rule.
These State regulations have not been
assessed against the Federal regulations
being finalized to determine whether
they meet the tests for authorization.
Thus, a State would not be authorized
to implement these regulations as RCRA
requirements until State program
modifications are submitted to EPA and
approved, pursuant to 40 CFR 271.21.
Of course. States with existing
regulations that are more stringent than
or broader in scope than current Federal
regulations may continue to administer
and enforce their regulations as a matter
of State law. In implementing the
HSWA requirements, EPA will work
with the States under agreements to
avoid duplication of effort.
C. Who Must Notify EPA That They
Have a Hazardous Waste?
Under RCRA Section 3010, the
• Administrator may require all persons
who handle hazardous wastes to notify
EPA of their hazardous waste
management activities within 90 days
after the wastes are identified or listed
as hazardous. This requirement may be
applied even to those generators,
transporters, and treatment, storage, and
disposal facilities (TSDFs) that have
previously notified EPA with respect to
the management of other hazardous
wastes. The Agency has decided to
waive this notification requirement for
persons who handle wastes that are
covered by today's listings and have
already (1) notified EPA that they
manage other hazardous wastes, and (2)
received an EPA identification number.
However, any person who generates,
transports, treats, stores, or disposes of
these wastes and has not previously
received an EPA identification number
must obtain an identification number
pursuant to 40 CFR 262.12 to generate,
transport, treat, store, or dispose of these
hazardous wastes 90 days after the
effective date.
D. What Do Generators and
Transporters Have To Do?
Persons that generate newly identified
hazardous wastes may be required to
obtain an EPA identification number if
they do not already have one (as
discussed above). In order to be able to
generate or transport these wastes after
the effective date of this rule, generators
of the wastes listed today will be subject
to the generator requirements set forth
in 40 CFR 262. These requirements
include standards for hazardous waste
determination (40 CFR 262.11),
compliance with the manifest (40 CFR
262.20 to 262.23), pretransport
procedures (40 CFR 262.30 to 262.34),
generator accumulation (40 CFR
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Federal Register/Vol. 64, No. 141/Friday, July 23, 1999/Proposed Rules
262.34), record keeping and reporting
(40 CFR 262.40 to 262.44), and import/
export procedures (40 CFR 262.50 to
262.60). The generator accumulation
provisions of 40 CFR 262.34 allow
generators to accumulate hazardous
wastes without obtaining interim status
or a permit only in units that are
container storage units or tank systems;
the regulations also place a limit on the
maximum amount of time that wastes
can be accumulated in these units. If
these wastes are managed in units that
are not tank systems or containers, these
units are subject to the permitting
requirements of 40 CFR 264 and 265,
and the generator is required to obtain
interim status and seek a permit (or
modify interim status or a permit, as
appropriate). Also, the regulations
require that persons who transport
newly identified hazardous wastes to
obtain an EPA identification number as
described above; such transporters will
be subject to the transporter
requirements set forth in 40 CFR Part
263.
E. Which Facilities Are Subject to
Permitting?
I. Facilities Newly Subject to RCRA
Permit Requirements
Facilities that treat, store, or dispose
of wastes that are subject to RCRA
regulation for the first time by this
proposed rule (that is, facilities that
have not previously received a permit
pursuant to Section 3005 of RCRA and
are not currently operating pursuant to
interim status), might be eligible for
interim status (see Section
3005(e)(l)(A)(ii) of RCRA). In order to
obtain interim status based on
treatment, storage, or disposal of such
newly identified wastes, eligible
facilities are required to comply with 40
CFR 270.70(a) and 270.10(e) by
providing notice under Section 3010
and submitting a Part A permit
application no later than 6 months after
date of publication of the final rule.
Such facilities are subject to regulation
under 40 CFR Part 265 until a permit is
issued.
In addition, under Section 3005 (e) (3)
and 40 CFR 270.73(d), not later than 6
months after date of publication of the
final rule, land disposal facilities newly
qualifying for interim status under
section 3005(e)(l)(A)(ii) also must
submit a Part B permit application and
certify that the facility is in compliance
with all applicable groundwater
monitoring and financial responsibility
requirements. If the facility fails to
submit these certifications and a permit
application, interim status will
terminate on that date.
2. Existing Interim Status Facilities
Pursuant to 40 CFR 270.72(a)(l), all
existing hazardous waste management
facilities (as defined in 40 CFR 270.2)
that treat, store, or dispose of the newly
identified hazardous wastes and are
currently operating pursuant to interim
status under section 3005 (e) of RCRA,
must file an amended Part A permit
application with EPA no later than the
effective date of today's rule, (i.e., 6
months after date of publication of a
final rule). By doing this, the facility
may continue managing the newly listed
wastes. If the facility fails to file an
amended Part A application by that
date, the facility will not receive interim
status for management of the newly
listed hazardous wastes and may not
manage those wastes until the facility
receives either a permit or a change in
interim status allowing such activity (40
CFR 270.10(g)).
3. Permitted Facilities
Facilities that already have RCRA
permits must request permit
modifications if they want to continue
managing newly listed wastes (see 40
CFR 270.42(g)). This provision States
that a permittee may continue managing
the newly listed wastes by following
certain requirements, including
submitting a Class 1 permit
modification request by the date on
which the waste or unit becomes subject
to the new regulatory requirements (i.e.,
the effective date of a final rule),
complying with the applicable
standards of 40 CFR Parts 265 and 266
and submitting a Class 2 or 3 permit
modification request within 180 days of
the effective date.
Generally, a Class 2 modification is
appropriate if the newly listed wastes
will be managed in existing permitted
units or in newly regulated tank or
container units and will not require
additional or different management
practices than those authorized in the
permit. A Class 2 modification requires
the facility owner to provide public
notice of the modification request, a 60-
day public comment period, and an
informal meeting between the owner
and the public within the 60-day period.
The Class 2 process includes a "default
provision," which provides that if the
Agency does not reach a decision within
120 days, the modification is
automatically authorized for 180 days. If
the Agency does not reach a decision by
the end of that period, the modification
is permanently authorized (see 40 CFR
270.42(b)).
A Class 3 modification is generally
appropriate if management of the newly
listed wastes requires additional or
different management practices than
those authorized in the permit or if
newly regulated land-based units are
involved. The initial public notification
and public meeting requirements are the
same as for Class 2 modifications.
However, after the end of the 60-day
public comment period, the Agency will
grant or deny the permit modification
request according to the more extensive
procedures of 40 CFR Part 124. There is
no default provision for Class 3
modifications (see 40 CFR 270.42(c)).
Under 40 CFR 270.42(g) (1) (v), for
newly regulated land disposal units,
permitted facilities must certify that the
facility is in compliance with all
applicable 40 CFR Part 265 groundwater
monitoring and financial responsibility
requirements no later than 6 months
after the date of publication of a final
rule. If the facility fails to submit these
certifications, authority to manage the
newly listed wastes under 40 CFR
270.42 (g) will terminate on that date.
4. Units
Units in which newly identified
hazardous wastes are generated or
managed will be subject to all
applicable requirements of 40 CFR 264
for permitted facilities or 40 CFR 265 for
interim status facilities, unless the unit
is excluded from such permitting by
other provisions, such as the wastewater
treatment tank exclusions (40 CFR
264.1(g)(6) and 265.1(c)(10)) and the
product storage tank exclusion (40 CFR
261.4(c)). Examples of units to which
these exclusions could never apply
include landfills, waste piles,
incinerators, and any other
miscellaneous units in which these
wastes may be generated or managed.
5. Closure
All units in which newly identified
hazardous wastes are treated, stored, or
disposed after the effective date of this
regulation that are not excluded from
the requirements of 40 CFR 264 and 265
are subject to both the general closure
and post-closure requirements of
Subpart G of 40 CFR 264 and 265 and
the unit-specific closure requirements
set forth in the applicable unit technical
standards Subpart of 40 CFR 264 or 265
(e.g., Subpart N for landfill units). In
addition, EPA promulgated a final rule
that allows, under limited
circumstances, regulated landfills or
surface impoundments to cease
managing hazardous waste, but to delay
Subtitle C closure to allow the unit to
continue to manage nonhazardous waste
for a period of time prior to closure of
the unit (see 54 FR 33376, August 14,
1989). Units for which closure is
delayed continue to be subject to all
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40217
applicable 40 CFR 264 and 265
requirements. Dates and procedures for
submittal of necessary demonstrations,
permit applications, and revised
applications are detailed in 40 CFR
264.113(c) through (e) and 265.113(c)
through (e).
VIII. CERCLA Designation and
Reportable Quantities
A. What Is the Relationship Between
RCRA and CERCLA?
CERCLA defines hazardous
substances to include RCRA hazardous
wastes. When EPA adds a hazardous
waste under RCRA, the Agency also
adds the waste to its list of CERCLA
hazardous substances. CERCLA also
establishes a reportable quantity or RQ
for each CERCLA hazardous substance
as one pound and authorizes EPA to
adjust the RQ based on an evaluation of
its physical, chemical, and toxic
properties. If you are the person in
charge of a vessel or facility that releases
a CERCLA hazardous substance in an
amount that equals or exceeds its RQ,
then you must report that release to the
National Response Center and State and
local authorities. EPA provides a list of
the CERCLA hazardous substances
along with their RQs in Table 302.4 at
40 CFR 302.
B. Is EPA Proposing To Add Dye and
Pigment Production Wastes to CERCLA?
Yes. Today, EPA is proposing to add
the dye and pigment production wastes
(K167 and K168) to the list of CERCLA
hazardous substances. Specifically, EPA
is proposing to add the K167 and K168
waste streams as EPA defines them at 40
CFR Part 261 to Table 302.4 at 40 CFR
Part 302.
C. Is EPA Proposing To Adjust the
Statutory One Pound RQ forKl 67 and
K168 Wastes?
No. Today, EPA is proposing to retain
the statutory RQ of one pound for both
K167 and K168 wastes. Some of the
information on which the Agency is
basing its decision to list the waste has
been claimed to be confidential business
information (CBI) collected for the
purposes of RCRA. The Agency would
have to rely on some of this information
to establish RQs for these wastes under
CERCLA. EPA adjusts an RQ of a waste
stream based on an evaluation of all of
the listed constituents of that waste.
Both K167 and K168 wastes may
contain hazardous constituents that
have been claimed to be CBI. At this
point, the Agency has been enjoined
from releasing any information claimed
as CBI and collected pursuant to this
rulemaking. Until the Agency solves
pending questions regarding the use of
information collected pursuant to RCRA
and claimed as CBI for this listing and
for the CERCLA RQ determination, EPA
is deferring making adjustments to the
statutory RQs of these wastes.
D. When Do I Need To Report a Release
ofK167andK168 Wastes Under
CERCLA?
If EPA promulgates today's proposed
rule, you will need to report a release
of either K167 or K168 waste if you are
the person in charge of a vessel or
facility that releases either waste and
the amount that is released equals or
exceeds one pound.
E. How Do I Report a Release?
To report a release of any CERCLA
hazardous substance (including K167
and K168, if EPA promulgates this rule)
that equals or exceeds its RQ, you must
immediately notify the National '
Response Center (NRC) as soon as you
have knowledge of that release. The toll-
free telephone number of the NRC is 1-
800-424-8802; in the Washington, DC,
metropolitan area, the number is (202)
267-2675.
You also are required to report the
release to State and local authorities (see
40 CFR 355). The Emergency Planning
and Community Right-to-Know Act
(EPCRA) requires that owners and
operators of certain facilities report
releases of CERCLA hazardous
substances and EPCRA extremely
hazardous substances to State and.local
authorities. After the release of an RQ or
more of any CERCLA hazardous
substance, you must immediately report
the release to the community emergency
coordinator of the local emergency
planning committee for any area likely
to be affected by the release, and to the
State emergency response commission
of any State likely to be affected by the
release.
F. What Is the Statutory Authority for
This Program?
Section 101 (14) of CERCLA defines
the term hazardous substance by
referring to substances listed under
several other environmental statutes, as
well as those substances that EPA
designates as hazardous under CERCLA
section 102(a). In particular, CERCLA
section 101 (1.4) (C) defines the term
hazardous substance to include "any
hazardous waste having the
characteristics identified under or listed
pursuant to section 3001 of the Solid
Waste Disposal Act." CERCLA section
102 (a) gives EPA authority to determine
RQs for CERCLA hazardous substances.
CERCLA section 102(b) establishes a
one pound RQ for all hazardous
substances unless and until EPA adjusts
the RQ under section 102(a). CERCLA
section 103 (a) requires any person in
charge of a vessel or facility that releases
a CERCLA hazardous substance in an
amount equal to or greater than its RQ
to report the release immediately to the
federal government. EPCRA section 304
requires owners or operators of certain
facilities to report releases of CERCLA '
hazardous substances and EPCRA
extremely hazardous substances to State
and local authorities.
We invite comments today's proposal
to designate the K167 and K168 wastes
under CERCLA and how it may affect
you.
IX. Analytical arid Regulatory
Requirements
A. Is This a Significant Regulatory
Action? (Executive Order 12866)
Under Executive Order 12866, EPA
must determine whether a regulatory
action is significant and, therefore,
subject to OMB review and the other
provisions of the Executive Order. A
significant regulatory action is defined
by Executive Order 12866 as one that
may:
(1) Have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
(3) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or rights and
obligations or recipients thereof; or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President's priorities, or the principles
set forth in Executive Order 12866.
Under the terms of Executive Order
12866, we have determined that this
rule is a "significant regulatory action"
because of point four (4) above: the rule
raises novel legal or policy issues
arising out of legal mandates, the
President's priorities, or the principles
set forth in this Executive Order.
Today's proposed concentration-based
listing action deviates from the Agency's
standard or historic listing approach.
Historically, the Agency's listing
program has captured entire quantities
of targeted wastestreams posing
unacceptable risks to human health and
the environment. Today's approach
identifies targeted wastestreams but
proposes listing only those quantities
containing one or more constituents of
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concern at concentration levels that
reflect unacceptable risks. This action,
therefore, was submitted to OMB for
review. Changes made in response to
OMB suggestions or recommendations
are documented in the public record.
Although this rule is not
"economically significant," the Agency
has prepared an economic support
document for today's rule entitled:
Economic Assessment for the Proposed
Listing of Wastewater Treatment Sludge
from the Production of Triarylmethane
fTAM) Dyes and Pigments, and Spent
Filter Aids from Azo, Anthraquinone, or
Triarylmethane Dyes, Pigments, and
Colorants. This Economic Assessment
addresses, among other factors,
compliance costs to the regulated
community, industry economic impacts,
qualitative benefits, small entity
impacts, children's health, and
environmental justice. A summary of
findings from this Economic
Assessment is presented below. The
complete Economic Assessment
document is available in the RCRA
docket for today's rule.
Today's proposed action is projected
to result in incremental annual
compliance costs to the organic dyes
and pigments industries, however at
this time we cannot include the range of
aggregate costs due to business
confidentiality concerns. Estimated
impacts on potentially affected land
disposal facilities are highly variable,
depending upon the regulatory option.
Due to business confidentiality
concerns, we are currently not able to
include annual aggregate nationwide
compliance costs to land disposal
facilities.
B. Why is This Proposed Rule
Necessary?
While waste produced by dye and
pigment facilities already is regulated to
a certain extent, certain waste streams
generated by these facilities still pose
both human health and ecological risks.
Current disposal practices for both spent
filter aids and TAM wastewater
treatment sludge have the potential to
pollute soil and water. To date, the
market and other private sector
institutions have failed to address
pollution issues associated with these
two wastestreams for several reasons.
First, because individuals not
responsible for the pollution bear the
costs in human health and ecological
damages, insufficient incentives exist
for dye and pigment facilities to incur
the additional costs for implementing
pollution control measures. In this case,
the private industry costs of production
do not fully reflect the human health
and environmental costs of management
of these two wastestreams. This
situation, referred to as "environmental
externality," represents a type of market
failure. A non-regulatory approach, such
as educational outreach programs,
would be largely ineffective because the
people who are made aware of the
potential health risks (e.g., those people
living near landfills where these two
wastestreams are disposed) have limited
ability to reduce exposure without
incurring significant costs.
Second, the parties harmed by the
pollution of soil arid water are not likely
to obtain compensation from dye and
pigment facilities through legal or other
means. This is due to the high
transaction costs involved, and the
difficulty citizens may have in
establishing a causal relationship
between the damage incurred and
activity at the dye or pigment facility.
Establishing a direct link between a
specific dye or pigment facility and
human health and/or other damages
incurred would be especially difficult
since under current practices many
facilities dispose of wastes in landfills
where it is co-mingled with many other
wastes.
We believe that federal government
intervention is necessary to correct for
these market distortions and to fairly
and consistently internalize costs
associated with these negative
externalities. We feel that federal
regulation is the optimal means of
correcting these market failures. EPA,
therefore, is proposing a concentration
based hazardous waste listing for spent
filter aids and TAM wastewater
treatment sludge.
C. What Regulatory Options Were
Considered?
We considered three regulatory
options for management of the two
waste streams examined in this
assessment. These were: no listing-
status quo, the standard listing approach
(covering the entire quantity of all
affected wastestreams), and a
concentration-based listing approach.
The no-list option would result in
affected facilities not incurring any
incremental management and
administrative costs under RCRA
Subtitle C. This option, however, may
result in affected facilities facing future
human health and environmental
liabilities for groundwater damages. The
standard listing (includes all affected
wastes) option would require that all
affected facilities comply with RCRA
Subtitle C regulations. These facilities
would incur incremental management
and administrative costs required under
RCRA Subtitle C. The concentration-
based listing approach requires that
affected facilities determine whether or
not their waste contains constituent
concentrations that exceed regulatory
limits. If concentrations exceed
regulatory limits, the waste is regulated
under RCRA Subtitle C and the facility
will incur incremental management,
administrative, and analytical costs.
Because of the wide variation in the
types of constituents and concentrations
present in these two waste streams, the
Agency is proposing a concentration-
based listing approach in today's action.
D. What are the Potential Cost Impacts
of Today's Proposed Rule?
1. Introduction and Scope of Analysis
The value of any regulatory policy is
traditionally measured by the net
change in social welfare that it
generates. The Economic Assessment
conducted in support of today's
proposed action examines both costs
and benefits in an effort to anticipate the
overall change in social welfare. The
primary focus of the analysis is on
compliance costs and economic impacts
potentially borne by the dyes and
pigments industries. Benefits are
examined on a qualitative basis. Other
regulatory issues covered in the
Economic Assessment include small
entity impacts, environmental justice,
children's health, and unfunded
mandates. The Economic Assessment
also examines potential impacts on land
disposal facilities which have received
wastes considered in this rulemaking.
2. Key Data Sources
The primary source of information
used to establish baseline conditions in
the dyes and pigments industries was
from RCRA 3007 questionnaires. The
RCRA 3007 data used in this analysis
represent the total number of facilities
believed to be generating TAM and
spent filter aid waste. Other key data
sources include: the 1992 Census of
Manufacturers, the U.S. International
Trade Commission, and various news
sources which report on industry
trends. Because our data were limited,
the estimated findings from this analysis
should be viewed as national, and not
specific to any discernible facility.
3. Industry Profile and Market Overview
Today's proposed action is expected
to affect three different industries; the
organic dyes industry, the organic
pigments industry, and the municipal
and industrial solid waste landfill
industry. The organic dyes and
pigments industries produce dyes and
pigments for a wide variety of
intermediate and end users including
the automotive, textile, printing, and
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40219
plastics industries. The municipal and
industrial solid waste landfill industry
receives and manages waste from
industries generating nonhazardous or
exempt materials. A hazardous
determination for wastes previously
accepted as nonhazardous may require
modified management procedures for
the leachate generated from municipal
and industrial facilities that have
previously accepted these wastes.
Organic Dyes and Pigments Industries-
General
Both the organic dyes industry and
the organic pigments industry are
classified under the North American
Industry Classification System (NAICS)
as 325132, Synthetic Organic Dye and
Pigment Manufacturing. The Ecological
and Toxicological Association of the
Dyestuffs Manufacturing Industry
(ETAD) defines dyes as "intensely
colored or fluorescent organic
substances which impart color to a
substrate by selective absorption of
light." The Color Pigment
Manufacturers' Association (CPMA)
defines pigments as "colored, black,
white, or fluorescent paniculate organic
or inorganic solids, which usually are
insoluble in, and essentially physically
and chemically unaffected by, the
vehicle or substrate in which they are
incorporated."
More than 2,000 individual dyes are
manufactured, generally in multiple
small batch quantities. This large
number of dyes is attributable to the
many different types of materials to
which dyes are applied and the different
conditions of service for which dyes are
required. There are fewer pigments
produced than dyes, however, pigment
batches are generally larger in size.
Organic dyes are classified in several
ways including their chemical structure
or class, general dye chemistry, and
application process. Chemical structure
classifications include azos,
triarylmethanes (TAM),
diphenylmethanes, anthraquinones,
stilbenes, methines,.polymethines,
xanthenes, phthalocyanines, and
sulfurs. Organic pigments are derived in
whole or in part from benzenoid
chemicals and colors and are described
as toners or lakes. These pigments
essentially are the same in final form,
but differ in their preparation method.
This proposed waste listing is
concerned with TAM wastewater
treatment sludges and spent filter aid
waste streams resulting from the
production of azo, anthraquinone, or
triarylmethane dyes, pigments, and
colorants.
In 1992, the most recent year for
which consistent data are available,
there were reportedly 38 establishments
listed under Standard Industrial
Classification (SIC) 28652, Synthetic
Organic Dyes, and 42 establishments
listed under SIC Code 28653, Synthetic
Organic Pigments, Lakes, and Toners
(Bureau of the Census, 1992 Census of
Manufacturers). Total employment was
estimated at 5,200 individuals for. the
synthetic organic dyes industry and
4,500 individuals for the synthetic
organic pigments industry. Aggregate
annual wages for both the dyes and
pigments industries totaled
approximately $375 million in 1992.
There are significant barriers to entry
in both the dyes and pigments
industries in terms of capital investment
and environmental liability. Both dyes
and pigments are produced by organic
synthesis, which translates into capital-
and time-intensive requirements,
making a certain level of economy to
scale a necessity. During the 1980s,
many smaller dyes businesses either
closed or were acquired by larger
companies. The smaller dye producers
that remain operating today typically
supply niche markets not serviced by
the large producers because of
profitability, environmental concerns, or
small volumes. During the 1980s, the
colored pigments industry was
dramatically restructured due to
globalization of pigment markets,
competitive factors, and the increasing
cost of plant improvements to meet
governmental standards, particularly in
the United States. A number of smaller
producers, unable to compete with
larger international firms, closed their
plants or were acquired by larger firms,
primarily from Western Europe or
Japan.
Consolidation has continued in the
dyes and pigments industries
throughout the 1990s, and is expected to
continue through the year 2000 as the
industries face increasing pressure from
the growth of low-cost producers in
Asia and other developing countries.
The synthetic organic pigments industry
currently consists of a few large
multinational companies and a number
of smaller pigment companies that
specialize in a few product lines. Sales
of organic pigments make up a relatively
small portion of these multinational's
overall chemical sales. The majority of
the U.S. dye business is currently
controlled by European-owned
companies operating in the United
States.
The U.S. International Trade
Commission's (USITC) production data
for the five-year period from 1990
through 1994 indicated that dye ;
production was highest in 1993 at
approximately 160,000 tons. Production
declined in 1994 to approximately
156,000 tons. More recent production
information is not available. The
Chemical Market Reporter, December
22, 1997, indicates that the demand for
organic dyes is likely to increase
between 2.0 and 2.5 percent annually
through the end of the decade. The
average unit value of all dyes has varied
from approximately $6,000 to $6,800
per ton during the 1990 through 1993
period; data for 1994 are not available.
The total production value of dyes in
the mid 1990's was approximately $1.0
billion. The Industry and Trade
Summary: Synthetic Organic Pigments,
USITC Publication 3021, February 1997,
indicates that total U.S. production of
organic pigments grew from 56,400 tons
in 1991 to an estimated 71,500 tons in
1995. The average unit value of all
organic pigments has varied from about
$14,800 to $16,100 per ton over the
1991 through 1995 period. The total
production value of organic pigments is
estimated at $1.2 billion for 1997.
The majority of organic dye imports to
the U.S. in the mid 1990's came from
Western Europe. Most of these imports
represented intra company sales
between European dye manufacturers
and their U.S. subsidiaries. Asia
accounted for the vast majority of
remaining imports. Industry experts
predict that this distribution will remain
unchanged through the year 2,000. The
pigments industry is a global industry
with imports having a significant impact
on the U.S. market. The major synthetic
organic pigments suppliers to the
United States have been Germany,
Japan, Switzerland, and the United
Kingdom. In 1995, these four countries
accounted for 73 percent of the value of
organic pigments imports. In recent
years, imports of lower technical
requirement pigments have increased,
with the Republic of Korea and Japan
being the major suppliers. In recent
years, China and India have emerged as
important suppliers to the U.S.
synthetic organic pigment market.
Analysts expect this trend to continue
and indicate that increased Chinese
imports place downward pressure on
prices.
The largest export markets for the U.S.
dye industry in 1992, in terms of
quantity, were Canada, Mexico, United
Kingdom, the Netherlands, and Japan.
U.S. exports to Western Europe were
mostly intra company sales between
European dye manufacturers and their
U.S. subsidiaries. The primary export
markets for U.S. synthetic organic
pigments are Canada, Belgium, the
United Kingdom, and Japan. During
1991-95, total U.S. organic pigments
exports increased 50 percent from $200
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million in 1991, to $299 million in
1994, with a slight decline in 1995. A
large portion of U.S. exports to Europe
were believed to be sales by large
European-owned multinational
companies with production facilities in
the U.S. The strength of the U.S. dollar
will have a significant impact on the
ultimate strength of U.S. exports.
The Municipal and Industrial Solid
Waste Landfill Industry
A disposal practice for nonhazardous
organic dye and pigment industry
wastes is off-site disposal in industrial
and/or municipal solid waste landfills.
The leachate derived from these wastes
has traditionally been collected and
recirculated, treated, or disposed.
Because of the proposed listing,
collected leachate from landfills (i.e.,
cells) that have accepted these wastes
may be hazardous under the Derived-
from Rule. Also, when the leachate from
these two wastes mixes with leachate
from other wastes, the entire leachate
quantity from the affected landfill (or
cell) may be considered hazardous
under the Mixture Rule. By changing
the regulatory status of the proposed
wastes, the collected leachate from the
disposal of these wastes will be covered
under Subtitle C of RCRA. Municipal
Solid Waste (MSW) and industrial
landfills that have previously accepted
and generated leachate from these
wastes may face increased leachate
management costs.
The EPA Report, Characterization of
Municipal Solid Waste in the United
States: 1997 Update, EPA530-R-98-
007, May 1998, estimates there were
approximately 2.400 MSW landfills in
the contiguous U.S. for 1996. Based on
the best available data, we have
determined the number of MSW and
industrial landfills that received the two
organic dye and pigment industry
wastes proposed for listing. This
Information, however, is not included
due to business confidentiality
concerns.
It is highly probable that these
landfills are located within 50 miles of
the organic dyes and pigments facilities.
Leachate quantities generated by each of
these landfills are dependent upon the
geographic location, area, leachate
collection system design, and operation
of the landfill. Recent information from
the Solid Waste Digest indicates that
landfills receiving anywhere from 250 to
1,500 tons of waste per day are
representative of landfills receiving dye
and pigment wastes. Based on an
average national tipping fee, the
approximate annual sales for a landfill
that, on average, accepts 750 tons of
waste per day, would be about $7.7
million. Aggregate nationwide
municipal landfill revenues are
estimated in the range of $6.2 to $37.1
billion per year.
4. Baseline Waste Management
Procedures and Costs
This section briefly summarizes the
baseline management procedures and
costs the dyes and pigments industries
are subject to in contending with the
proposed wastes. Baseline leachate
management procedures and costs
experienced by landfills accepting the
proposed dye and pigment wastes are
also discussed.
Organic Dyes and Pigments—Proposed
Wastestream Listings
The two wastes generated during the
production of dyes and pigments that
we are proposing for listing as
hazardous under RCRA are identified as
K167 and K168. These are described
below:
K167—Spent filter aids, diatomaceous
earth, or absorbents used in the
production of azo, anthraquinone, or
triarylmethane dyes or pigments.
K168—Wastewater treatment sludge
from the production of TAM dyes and
pigments (excluding triarylmethane
pigments using aniline as a feedstock).
The annual generation of these
proposed hazardous wastes are
estimated and analyzed as combined
quantities. Further discussion on
management practices is not included
due to business confidentiality
concerns. This analysis applies baseline
scenarios using both MSW lined and
industrial D unlined landfill facilities.
Costs for baseline waste management
practices were derived from published
sources and industry submitted data.
The cost for waste disposal in a lined
MSW landfill with leachate collection is
estimated at $75 per ton. Disposal in an
unlined landfill is estimated at $63 per
ton. Waste disposal costs for Facilities
currently managing under Subtitle C are
estimated at $650 per ton for
incineration and $213 per ton for
disposal in a Subtitle C landfill. Waste
discharge to a POTW is estimated to
cost $1.50 per 1,000 gallons. The
Subtitle C transportation cost is
estimated at $53 per ton, within a 200-
mile limit.
Dye and Pigment Leachate
Management—Affected Landfills
Our analysis indicates that a number
of landfills are likely to be affected by
the proposed dye and pigment listing.
The number of affected landfills,
however, is not included here due to
business confidentiality concerns. Data
on leachate management practices for
these landfills are extrapolated from a
petroleum sample leachate management
distribution. Applying the distribution
of management practices identified in
the petroleum sample to the population
of landfills affected by the two wastes
indicates results that cannot be included
due to business confidentiality
concerns.
The average leachate and condensate
quantities generated per representative
landfill over the 5-year expected
generation scenario are as follows: 5.0
million gallons per year discharge via a
NPDES-permit, 4.2 million gallons per
year to a POTW, 2.0 million gallons per
year trucked to an off-site POTW, 1.6
million gallons per year for which a
portion is trucked and the remainder
(0.6 million gallons per year) is
recirculated.
Baseline leachate and condensate
management cost data were provided by
representative landfill facilities. These
data were used to develop average unit
cost estimates on a per year per landfill
basis for each leachate management
practice. Average leachate management
costs are estimated as follows: truck to
an off-site POTW ($0.07/gallon), truck a
portion to an off-site POTW and
recirculate the remaining fraction
($0.05/gallon), discharge to an NPDES
outfall ($0.04/gallon), discharge via pipe
to POTW ($0.03/gallon), and recirculate
($0.01/gallon).
5. Compliance Waste Management
Procedures and Costs
We considered three regulatory
options in analyzing compliant waste
management procedures and costs for
generators of the proposed waste
listings: no listing-status quo,
concentration-based listing, and
standard listing. The no-list option
results in no incremental compliance
costs. The concentration-based listing
requires sampling and analysis costs not
normally required under a standard
listing, but may result in reduced waste
quantities managed as hazardous waste.
The assessment conducted for today's
action examines the economic impacts
to the affected facilities under the
proposed concentration-based listing
and assumes 100 percent of all affected
wastestreams must be managed as
hazardous waste. This assumption
results in a high-end, or worst case
scenario for examining industry
economic impacts.
We also considered three regulatory
options in the evaluation of compliant
procedures and costs for leachate
generated from landfills that have
accepted the proposed dye and pigment
wastestreams. These options are: no list,
a Clean Water Act temporary deferral
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40221
option with a two-year impoundment
deferral, and, a standard listing leachate
management option that treats the
leachate as hazardous waste subject to
Subtitle C regulation. The no-list option
would result in no incremental
management and cost impacts to
affected landfills. The Clean Water Act
temporary deferral option would
exempt the landfill leachate from being
RCRA Subtitle C regulation if it is
managed under the Clean Water Act.
After two years, impoundments would
no longer be allowed to manage exempt
leachate. The standard listing option
would require that landfills treat the
leachate as hazardous waste and subject
to Subtitle C regulation under the
Derived-from and Mixture Rules.
Existing exemptions would apply. We
examined compliance management
procedures and incremental cost to
landfills under the Clean Water Act
temporary deferral and standard listing
options. .
Organic Dyes and Pigments Industries—
Proposed Wastestream Listings
Future post listing compliance waste
management practices assume the
promulgation of land disposal
restrictions (LDRs). The compliance
management practice assumed is RCRA
Subtitle C hazardous waste incineration,
with disposal of the resulting ash in a
Subtitle C landfill. Stabilization of the
incinerator ash is not-assumed given-the
lack of significant hazardous metal
constituents in the wastes. Our
assumptions for other management
practices reported are not included due
to business confidentiality concerns.
Cost estimates for compliance
management activities have been
derived using unit costs from published
sources and additional data obtained
from Agency and contractor knowledge.
Subtitle C incineration and ash disposal
in a Subtitle C landfill is estimated at
$650/ton and $213/ton, respectively.
Shipping costs to Subtitle C facilities is
based on a flat fee of $53/ton for a 200-
mile radius.
Facilities generating the proposed
waste listings are subject to Part 262 of
RCRA. There are four primary
requirements specified in the Part 262
standards: plants must obtain an EPA
identification number, an approved
manifest system must be established,
pre transport requirements must be
satisfied (labeling, marking, placarding),
and, specified record keeping and
reporting requirements are triggered. All
of the facilities affected by this proposed
listing are assumed to have already been
affected by the previous proposed
listing. Therefore, minimal incremental
administrative costs are assumed to be
incurred as a result of today's proposed
listing. This analysis assumes that
RCRA Parts 264 and 270 do not apply.
Sampling and analysis Costs in this
assessment are based on the assumption
that wastes produced at each facility
will be sampled each year. Aggregate
sampling and analysis costs are based
on an average and worst case number of
chemicals. Sampling and analysis costs
include taking the sample, packaging,
transportation, analysis of the sample,
and reporting the results. Costs were
estimated assuming analysis for total
concentrations. The annualized
sampling costs for constituents are
estimated to be $153/sample, and the
sampling costs for the worst-case
number of constituents are estimated to
be $246/sample.
Corrective action compliance costs
associated with non-permitted facilities
include the cost to conduct a RCRA
Facility Investigation (RFI), a Corrective
Measures Study (CMS), and remediate
solid waste management units (SWMUs)
and areas of concern (AOCs). Because of
the previous listing, we assumed all
facilities affected by this proposed rule
will already have triggered
quanitification of the above corrective
action compliance costs. No incremental
costs for corrective action compliance
are assumed to be incurred as a result
of this proposed listing. •
Dye and Pigment Leachate
Management—Affected Landfills :
Under the Standard Listing regulatory
option, the leachate collected from
landfill cells that received these two
waste streams will be managed
according to the requirements specified
under Subtitle C of RCRA. Under the
Clean Water Act temporary deferral
regulatory option, the Agency will
exempt the leachate from being
regulated as hazardous under Subtitle C
if it is managed in tank systems under
the Clean Water Act (including POTWs)
or through recirculation. Under a no list
regulatory option, leachate quantities
generated at MSW landfills will
continue to be regulated under Subtitle
D of RCRA and leachate quantities i
generated at industrial waste landfills
will be subject to state and local
regulations.
Cost estimates for leachate
compliance management and
transportation activities were derived
using unit costs from published sources,
annualized costs (updated)'developed in
the previously proposed organic dye
and pigment hazardous waste listings,
and the recent final listing of four
petroleum refining waste streams. Cost
estimates have been developed on an
annualized per landfill basis for capital
and O&M requirements, based on a 5-
year, 10-year, and 20-year period of
amortization. These periods are
designed to reflect the period under
RCRA regulation and the remaining life
of the landfill. The cost estimate ranges
also cover the expected five-year
leachate generation and ten-year
conservative leachate generation case.
Because there are fewer commercial
treatment/POTW facilities permitted to
receive manifested hazardous
wastewaters (i.e., leachate), total
transport distances are assumed to
increase with the promulgation of the
rule.
We have developed compliance cost
estimates for the following leachate
management practices: truck to a
POTW, truck to a POTW plus reticulate,
reticulate only, hardpipe to a POTW,
and discharge via NPDES. RCRA
administrative costs are also estimated.
Annualized compliance costs on a per
landfill basis, presented in million
dollars, are estimated as follows: truck
to a POTW ($1.71-$7.00), truck to a
POTW plus reticulate ($1.38-$5.64),
reticulate only ($0.01-$0.02) , hardpipe
to a POTW (same as baseline), and
discharge via NPDES ($0.10-$0.27).
These costs encompass the full range.of
amortization over the five, ten, and
twenty year period. RCRA
administrative costs associated with
compliance are estimated to be no more
than $4,000 per landfill per year.
6. Incremental Aggregate Compliance
Costs
This section summarizes the projected
incremental compliance costs associated
with today's proposed action.
Incremental costs are estimated for the
generators of the proposed dye and
pigment wastes, and the Subtitle D
landfill facilities that accepted these
wastes.
Organic Dyes and Pigments—Proposed
Wastestream Listings
Total baseline management and
compliance management costs were
calculated on a per unit basis for each
activity. Incremental costs are the
difference between baseline and
compliance costs, including
administrative, and sampling and
analysis costs. The total incremental
cost is the summation of this difference
between baseline and compliance costs
across all affected waste quantities/
facilities. Our analysis indicates that
total incremental costs associated with
the proposed listing may fall within a
broad range. We are not able to present
these findings due to business
confidentiality concerns. Presentation of
the average incremental cost per ton is
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also subject to business confidentiality
restrictions. The high-end estimate
assumes 100 percent baseline waste
management in an unlined landfill, and
analytical costs for the high-end
estimate of constituents potentially
impacted.
Dye and Pigment Leachate
Management—Affected Landfills
The total incremental landfill costs
are estimated by multiplying the
number of affected landfills in each
leachate management category by
incremental landfill costs, calculated on
a unit-by-unit basis. The estimated
impacts on the affected land disposal
facilities are highly variable, depending
on the regulatory option. Under the
standard listing option, costs were
found to fall within a broad range.
Business confidentiality restrictions
prevent us from releasing this
information. The range reflects a five,
ten, or twenty year amortization
schedule, and the five or ten year
leachate generation period. Presentation
of cost impacts under the Clean Waste
Act temporary deferral option is also
restricted due to business
confidentiality concerns.
B. What Are the Potential Economic
Impacts to Industry From the Proposed
Rule?
We examined the economic impacts
to both dye and pigment manufacturers
and solid waste landfill facilities. The
impacts to the dye and pigment industry
were examined by comparing
incremental costs to annual estimated
sales for the affected product lines.
Incremental compliance costs to
landfills were examined as a percent of
revenues from tipping fees.
Economic Impacts—Organic Dyes and
Pigments Industry
Waste generation rates for filter aids
and TAM sludge are variable,
depending upon the product being
manufactured. A model facilities
approach was used based on four
representative waste generation rate
categories. Information regarding waste
generation rates, production rates, and
product sales was derived from
responses to RCRA 3007 questionnaires
and from U.S. International Trade
Commission Reports. Like waste
generation rates, product prices are also
highly variable. Product prices used in
this analysis ranged from $6,500 to
$18,000 per ton. Data provided in U.S.
International Trade Commission public
reports served as a basis for
approximating average industry prices.
Gross sales, based on the above range
of waste generation rates and prices.
were estimated. These findings,
however may not be divulged due to
business confidentiality concerns. A
midpoint of annual gross sales was also
estimated for the waste generation
categories examined. It should be noted
that individual facilities are likely to
produce a variety of products, not all of
which will be affected by this proposed
rulemaking. The gross sales estimates
developed for this analysis only reflect
sales of affected product lines and do
not reflect aggregate sales for any single
facility.
Incremental compliance cost impacts
were estimated but may not be released
to the public due to business
confidentiality concerns. The actual
economic impact will likely be
dependent on the price elasticity of
demand for individual dye and pigment
products. For example, if an affected
product has many close substitutes, it is
possible that the producer of the
impacted product may not be able to
modify prices in response to increased
production costs. Conversely, dye and
pigment products with unique
applications may have a more inelastic
demand. Prices of these products may
be increased enough to largely offset any
changes associated with the rulemaking.
It is important to consider that this
rulemaking affects less than a certain
percent of the overall combined
production of the dyes and pigments
industries. While the estimated impacts
may be experienced on selected product
lines, overall impacts on the industries
are expected to be less due to multiple
product lines.
Economic Impacts—Solid Waste
Landfills Managing Dye and Pigment
Leachate
We examined average incremental
compliance costs as a percent of sales
(tipping fee revenues) for three different
sized landfills to estimate potential
economic impacts of the proposed
listing on landfill management costs.
The model landfill facilities were
assumed to accept 250, 750, and 1,500
tons of waste per day. These sizes were
selected as representative of the
industry and landfills accepting dye and
pigment wastes.
Annual landfill sales were derived for
each of the models using an average
national tipping fee of $35.8 I/ton. It was
assumed that the landfills operated
approximately 286 days a year (five and
one-half days/week). Therefore,
approximate annual sales for a landfill
that on average accepts 750 tons of
waste per day would be $7.68 million.
Impact estimates are based on average
leachate generation rates.
Incremental costs were examined for
both the Standard Regulatory Option
and the Clean Water Act temporary
deferral. For each option, incremental
costs were considered for six
management practices. In estimating the
potential economic impacts of the
Standard Regulatory Option, expected
incremental compliance costs based on
a five-year amortization schedule were
used. The five-year amortization is
believed to correspond more closely to
the actual leachate generation.
Incremental compliance costs for the
analysis of the Clean Water Act
temporary deferral option are based on
a 20-year capital amortization schedule.
Under the standard listing option, we
have estimated costs that facilities
would face if they have to truck the
leachate to a POTW. These impacts
cannot be presented to the public due to
business confidentiality concerns.
Actual incremental compliance costs for
the smallest landfill size were estimated
but may not be divulged. Impacts in
relation to all other technologies in the
standard listing scenario were estimated
but may not be divulged due to business
confidentiality concerns. Under the
Clean Water Act temporary deferral
option, costs were also estimated.
Business confidentiality concerns
prevent us from releasing this
information also.
F. What Are the Potential Benefits From
the Proposed Rule?
We conducted a qualitative benefits ,
analysis of today's proposed listing of
filter aids and TAM wastewater
treatment sludges. This analysis
addresses human health benefits
projected as a result of the proposed
listing. The analysis also examines
benefits associated with waste
minimization efforts potentially
stimulated by this action. Potential '.
ecological benefits are not examined.
The analysis incorporates findings from,
and is consistent with, the risk analysis
conducted in support of this action.
Incremental individual and/or
population benefits are not available for
incorporation into this benefits analysis.
In determining whether waste
generated from the production of dyes
and pigments meets the criteria for
listing a waste as hazardous as set out
at 40 CFR 261.11, we initially evaluated
the potential toxicity and intrinsic
hazard of the constituents likely to be
present in the waste streams. The fate
and mobility of these chemicals, the
likely exposure routes, the current waste
management practices, and plausible
management practices were examined.
Based on this assessment we identified
a core list of constituents associated
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40223
with filter aids TAM sludges. We are
seeking comment on the inclusion of
other constituents of potential concern
(see Section IV).
Human Health Benefits
One objective of a human health risk
assessment is to estimate the number of
chronic health impacts that could be
avoided as a result of the
implementation of the proposed rule.
This would include the exposures by
drinking contaminated water from
residential wells located near the source
of contamination, consuming food
products contaminated by blowing dust
or vapors, and otherwise being exposed
directly to contaminated soil and water.
The benefit associated with today's
action is the enhanced security
associated with more stringent
management requirements for the
proposed "high concentration" filter aid
and TAM wastestreams. When these
wastestreams are managed under the
more stringent Subtitle C requirements,
the risks to human health and the
environment associated with their
disposal is minimized.
Waste Minimization Benefits
Regulatory compliance costs for the
dyes and pigments industries may be
lowered through use of waste
minimization practices. A previously
issued guidance document on pollution
prevention, recycling, and reuse
practices for the dye manufacturing
industry offers a number of general and
specific alternatives. Engineering site
visits, particularly at newer facilities,
indicated that a number of these
practices are economically and
technically feasible. These visits also
pointed out areas of improvement
needed at all facilities, most notably
reduction of wastewater volume.
Specific waste minimization
procedures and corresponding cost
reductions tend to be highly dependent
on the manufacturing processes at each
facility. The following waste
minimization opportunities for specific
plant operations and waste streams may
decrease compliance costs through -
reduction in waste volume at dye and
pigment facilities: filtering devices with
reusable membranes, centrifugation, dry
collection of dust and fines whenever
practicable, automated handling and
measurement of raw materials and
products, and consideration of process
integration for recycling to other parts of
the same facility.
As noted earlier in today's notice, a
concentration-based listing also
provides an added incentive for
generators to reduce the level of
hazardous constituents of concern. If
constituent levels are reduced to b,elow
the concentration levels specified in the
listing regulation, then their waste will
not be regulated as hazardous.
G. What Consideration Was Given to
Small Entities?
Pursuant to the Regulatory Flexibility
Act (5 U.S.C. 601 etseq., as amended by
the Small Business Regulatory
Enforcement Fairness Act (SBREFA) of
1996) whenever an agency is required to
publish a notice of rulemaking for any
proposed or final rule, it must prepare
and make available for public comment
a regulatory flexibility analysis that
describes the effect of the rule on small
entities (i.e., small businesses, small
organizations, and small governmental
jurisdictions). However, no regulatory
flexibility analysis is required if the
head of an agency certifies the rule will
not have a significant economic impact
on a substantial number of small
entities.
We conducted a screening analysis to
answer a series of questions regarding
the potential impacts of the proposed
dyes and pigments waste listing on
small entities. This analysis was
conducted per the requirements of the
Regulatory Flexibility Act (RFA) as
amended by the Small Business
Regulatory Enforcement Fairness Act
(SBREFA), and Agency guidance. Our
screening analysis came to a definitive
conclusion. However, we are not able to
divulge this conclusion due to business
confidentiality concerns.
The Small Business Administration
(SBA) size standard for small businesses
in the dyes and pigments industry,
which is part of cyclic crudes and
intermediates (NAICS 325132) is 750
employees (13 CFR 121.201).' This, and
all size standards apply to the owners or
parent corporation, of the business, and
not individual plant operations which
are most directly affected by this
proposed regulation. Of the dye and
pigment companies potentially affected
by the regulation, we have determined
the maximum number of small
businesses under the SBA size standard.
This determination, however, is not
available for public release due to !
business confidentiality concerns. It is
possible that some of the landfills
affected by this rulemaking may be
small according to the SBA size
standards for landfills (less than $5
million in sales).
Data are not available on the financial
status of the small entities in question,
as they are privately held companies.
However, we have made a preliminary
estimate of the impact on these
companies, assuming that 100 percent
of all wastes are managed as Subtitle C.
We may not release this finding due to
business confidentiality concerns.
It is important to recognize that these
estimates are based only on product
sales which are directly associated with
the waste generated. For instance, an
individual company may produce 100
different dyes, but spent filter aids may
only be generated in the production of
20 of them. In this case, the impact
estimate only represents the sales value
of the 20 dyes associated with the
generation of the spent filter aids, and
not on overall company sales. Overall
company impacts would be lower. For
the landfills potentially affected by the
rule, impacts have been estimated but
are not available for release due to
business confidentiality concerns.
As a result of the screening analysis,
the Agency has come to a conclusion
concerning small business impacts but
is not able to release this information
due to business confidentiality
concerns. This rule does not require a
full regulatory flexibility analysis. The
Economic Assessment document
presents the complete regulatory
flexibility screening analysis conducted
in support of today's action.
H. What Consideration Was Given to
Children's Health ?
Children's Health (Executive Order
13045)
"Protection of Children from
EnvironmentarHealth Risks and Safety
Risks" (62 FR 19885, April 23, 1997)
applies to any rule that: (1) is
determined to be "economically
significant" as defined under E.O.
12866, and (2) concerns an
environmental health or safety risk that
EPA has reason to believe may have a
disproportionate effect on children. If
the regulatory action meets both criteria,
the Agency must evaluate the
environmental health or safety effects of
the planned rule on children, and
explain why the planned regulation is
preferable to other potentially effective
and reasonably feasible alternatives
considered by the Agency. This
proposed rule is not subject to the
Executive Order because it is not
economically significant as defined in
E.O. 12866, and because the Agency
does not have reason to believe the
environmental health or safety risks
addressed fay this action present a
disproportionate risk to children.
The topic of environmental threats to
children's health is growing in
regulatory importance as scientists,
policy makers, and village leaders
continue to recognize the extent to
which children are particularly
vulnerable to environmental hazards.
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Recent EPA actions have been in the
forefront of addressing environmental
threats to the health and safety of
children. Today's proposed rule further
reflects our commitment to mitigating
environmental threats to children.
A few significant physiological
characteristics are largely responsible
for children's increased susceptibility to
environmental hazards. First, children
eat proportionately more food, drink
proportionately more fluids, and breathe
more air per pound of body weight than
do adults. As a result, children
potentially experience greater levels of
exposure to environmental threats than
do adults. Second, because children's
bodies are still in the process of
development, their immune systems,
neurological systems, and other
immature organs can be more easily and
considerably affected by environmental
hazards. The connection between these
physical characteristics and children's
susceptibility to environmental threats
are reflected in the higher baseline risk
levels for children.
Today's proposed rule will reduce
risks posed by the hazardous
constituents found in the listed waste
streams by requiring more appropriate
and safer management practices. EPA
considered risks to .children in its risk
assessment and set allowable
concentrations for constituents in the
waste at levels that are believed to be
protective to children, as well as adults.
The more appropriate and safer
management practices proposed in this
rule are projected to reduce risks to
children potentially exposed to the
constituents of concern.
The public is invited to submit or
identify peer-reviewed studies and data,
of which the agency may not be aware,
that assess results of early life exposure
to the proposed hazardous constituents
from filter aids and TAM waste
generated in the production of organic
dyes and pigments.
/. What Consideration Was Given to
Environmental Justice?
Environmental Justice (Executive Order
12898)
Executive Order 12898, "Federal
Actions to Address Environmental
Justice in Minority Populations and
Low-Income Population" (February 11,
1994), is designed to address the
environmental and human health
conditions of minority and low-income
populations. EPA is committed to
addressing environmental justice
concerns and is assuming a leadership
role in environmental justice initiatives
to enhance environmental quality for all
residents of the United States. The
Agency's goals are to ensure that no
segment of the population, regardless of
race, color, national origin, or income
bears disproportionately high and
adverse human health and
environmental impacts as a result of
EPA's policies, programs, and activities,
and that all people live in clean and
sustainable communities. In response to
Executive Order 12898 and to concerns
voiced by many groups outside the
Agency, EPA's Office of Solid Waste
and Emergency Response (OSWER)
formed an Environmental Justice Task
Force to analyze the array of
environmental justice issues specific to
waste programs and to develop an
overall strategy to identify and address
these issues (OSWER Directive No.
9200.3-17).
To comply with the Executive Order,
we have assessed whether today's
proposed rule may have
disproportionate effects on minority
populations or low-income populations.
We do not have determinative facility
location correlated with minority
population and impacts data to indicate
that the environmental problems
addressed by the proposed listing for
dye and pigment wastes could
disproportionately effect minority or
low income communities. The affected
facilities, however, are distributed
throughout the country and many are
located within highly urbanized areas.
Because the proposed rule reduces
environmental risks associated with the
management of the proposed waste
streams, the Agency believes that this
rule will not result in adverse human
health and environmental impacts.
Today's proposed rule, therefore, is not
expected to result in any
disproportionately negative impacts on
minority or low income communities
relative to affluent or non minority
communities.
]. What Consideration Was Given to
Unfunded Mandates?
Executive Order 12875
Under Executive Order 12875, EPA
may not issue a regulation that is not
required by statute and that creates a
mandate upon a State, local or tribal
government, unless the Federal
government provides the funds
necessary to pay the direct compliance
costs incurred by those governments, or
EPA consults with those governments. If
EPA complies by consulting, Executive
Order 12875 requires EPA to provide to
the Office of Management and Budget a
description of the extent of EPA's prior
consultation with representatives of
affected State, local and tribal
governments, the nature of their
concerns, any written communications
from the governments, and a statement
supporting the need to issue the
regulation. In addition. Executive Order
12875 requires EPA to develop an
effective process permitting elected
officials and other representatives of
State, local and tribal governments "to
provide meaningful and timely input in
the development of regulatory proposals
containing significant unfunded
mandates."
Today's rule implements mandates
specifically and explicitly set forth by
the Congress without the exercise of any
policy discretion by EPA. This action is
proposed under the authority of
Sections 3001(e)(2) and 3001 (b)(l) of
the Hazardous and Solid Waste
Amendments (HSWA) of 1984, which
direct EPA to make a hazardous waste
listing determination for certain wastes
from the dye and pigment industries.
Accordingly, the requirements of
section l(a) of Executive Order 12875 do
not apply to this rule.
Unfunded Mandates Reform Act
(UMRA)
The Unfunded Mandates Reform Act
(UMRA) of 1995 supersedes Executive
Order 12875 and reiterates previously
established directives, while imposing
additional requirements. Title II of the
UMRA, Public Law 104-4, establishes
requirements for Federal agencies to
assess the effects of their regulatory
actions by State, local, and tribal
governments and the private sector.
Under section 202 of UMRA, EPA
generally must prepare a written
statement, including a cost-benefit
analysis, for proposed rules and final
rules for which the Agency published a
notice of proposed rulemaking if those
rules contain "Federal mandates" that
may result in the expenditure by State,
local, and tribal governments , in the
aggregate, or to the private sector, of
$100 million or more in any single year.
If a written statement is needed, section
205 of the UMRA generally requires
EPA to identify and consider a
reasonable number of regulatory
alternatives. Under section 205, EPA
must adopt the least costly, most cost-
effective or least burdensome alternative
that achieves the objectives of the rule,
unless the Administrator publishes with
the final rule an explanation why that
alternative was not adopted. The
provisions of section 205 do not apply
when they are inconsistent with
applicable- law.
We have determined that this
proposed rule will not result in the
expenditure of $100 million or more by
State, local, and tribal governments, in
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40225
the aggregate, or by the private sector in
any single year.
K. What Consideration Was Given to
Tribal Governments Analysis?
Executive Order 13084
Under Executive Order 13084,
"Consultation with Tribal
Governments," the EPA may not issue a
regulation that is not required by
statute, that significantly or uniquely
affects the communities of Indian tribal
governments, or that imposes
substantial direct compliance costs on
those communities, unless the Federal
government provides the funds
necessary to pay the direct compliance
costs incurred by the tribal
governments. If EPA complies by
consulting, the EPA must provide the
Office of Management and Budget, in a
separately identified section of the
preamble to the rule, or proposed rule,
a description of the extent of our prior
consultation with representatives of
affected tribal governments, a summary
of their concerns, and a statement
supporting the need to issue the
regulation. Also, Executive Order 13084
requires the EPA to develop an effective
process permitting elected and other
representatives of Indian tribal
governments to, "provide meaningful
and timely input in the development of
regulatory policies on matters that
significantly or uniquely affect their
communities."
For many of the same reasons
described above under unfunded
mandates, the requirements of Executive
Order 13084 do not apply to this
proposed rulemaking. While Executive
Order 13084 does not provide a specific
gauge for determining whether a
proposed regulation "significantly or
uniquely affects" an Indian tribal
government, this proposal does not
impose substantial direct compliance
costs on tribal governments and/or their
communities. Tribal communities are
not known to own or operate any dye
or pigment manufacturing facilities, nor
are these communities
disproportionately located adjacent to or
near such facilities. Finally, tribal .
governments will not be required to
assume any administrative or permitting
responsibilities associated with this
proposed rule.
L. Was the National Technology
Transfer and Advancement Act
Considered?
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 ("NTTAA"), Public Law
104-113, section 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary
consensus standards in its regulatory
activities unless to do so would be
inconsistent with applicable law or
otherwise impractical. Voluntary
consensus standards are technical
standards (e.g., materials specifications,
test methods, sampling procedures, and
business practices) that are developed or
adopted by voluntary consensus
standards bodies. The NTTAA directs
EPA to provide Congress, through OMB,
explanations when the Agency decides
not to use available and applicable
voluntary consensus standards.
This proposed rulemaking does not
involved technical standards. Therefore,
EPA is not considering the use of any
voluntary consensus standards.
M. Howls the Paperwork Reduction Act
Considered in Today's Proposal?
The information collection
requirements in this proposed rule have
been submitted for approval to the
Office of Management and Budget
(OMB) under the Paperwork Reduction
Act, 44 U.S.C. 3501 ef seq. An
Information Collection Request (ICR)
document has been prepared by EPA
(ICR No. 1918.01) and a copy may be
obtained from Sandy Farmer by mail at
Office of Policy (OP) Regulatory
Information Division; U.S.
Environmental Protection Agency
(2137); 401 M Street, SW; Washington,
DC 20460, by email at
farmer.sandy@epamail.epa.gov, or by
calling (202) 260-2740. A copy may also
be downloaded off the Internet at http:/
/www.epa.gov/icr.
This proposed rule contains
concentration-based listings that
generators would be self-implementing.
Under the concentration-based listings,
a generator of wastes that fall within the
K167 or K168 listing descriptions must
comply with waste analysis
requirements if it wants to determine
that its waste is nonhazardous. These
requirements are necessary to ensure
that the levels of selected constituents
in the wastes are below the regulatory
levels of concern.
The Agency estimated the worst-case
burden associated with complying with
the requirements in this proposed rule.
In 1992, the most recent year for which
consistent data are available, there were
reportedly 80 dye and pigment facilities
(Industrial Organic Chemicals,
Manufacturers-Industry Series, Census
Bureau, Department of Commerce,
1992). Because of business .:.
confidentiality concerns in using the
actual number of facilities that reported
generating wastes that fall within the
K167 or K168 listing descriptions, EPA
assumed that all 80 facilities generate
these wastes. In addition, EPA assumed
that all 80 facilities would analyze their
wastes and find the wastes to be
hazardous. Under such assumptions, all
of these 80 facilities, as well as
subsequent handlers, would need to
manage and dispose of the wastes under
RCRA Subtitle C regulations.
The estimated worst-case burden
results from the following requirements
for industry respondents: reading the
regulations; performing waste analysis,
and incremental burden associated with
complying with existing RCRA
regulations. To the extent that this rule
imposes burden as incremental to the
existing RCRA regulations promulgated
in previous rulemakings, those
requirements have been assigned OMB
control numbers 2050-0024 (ICR No.
976.08, Hazardous Waste Report—
Biennial Report); 2050-0039 (ICR No.
801.12, Requirements for Generators,
Transporters, and Waste Management
Facilities under the Hazardous Waste
Manifest System); 2050-0120 (ICR No.
1571.05, General Hazardous Waste
Facility Standards); 2050-0085 (ICR No.
1442.14, Land Disposal Restrictions)-
and 2050-0009 (ICR No. 1573.05, Part B
Permit Application, Permit
Modifications and Special Permits).
EPA estimates that the total annual
respondent burden for all activities will
be 7,334 hours. The estimated total cost
for all activities will be $508,605. If
generators determine their wastes to be
nonhazardous after performing waste
analysis, the proposed rule contains
some new notification and
recordkeeping requirements. However,
the information collection burden
associated with these requirements
would not be expected to be greater than
if the generators determine their wastes
to be hazardous.
Burden means the total time, effort, or
financial resources expended by persons
to generate, maintain, retain, or disclose
or provide information to or for a
Federal agency. This includes the time
needed to review instructions; develop,
acquire, install, and use technology and
systems for the purposes of collecting,
validating, and verifying information,
processing and maintaining
information, and disclosing and
providing information; adjust the
existing ways to comply with any
previously applicable instructions and
requirements; train personnel to be able
to respond to a collection of
information; search data sources;
complete and review the collection of
information ; and transmit or otherwise
disclose the information.
An agency may not conduct or
sponsor, and a person is not required to
respond to a collection of information
unless it displays a currently valid OMB
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Federal Register/Vol. 64, No. 141/Friday, July 23, 1999/Proposed Rules
control number. The OMB control
numbers for EPA's regulations are listed
in 40 CFR Part 9 and 48 CFR Chapter
15.
Comments are requested on the
Agency's need for this information, the
accuracy of the provided burden
estimates, and any suggested methods
for minimizing respondent burden,
including through the use of automated
collection techniques. Send comments
on the ICR to the Director, OP
Regulatory Information Division; U.S.
Environmental Protection Agency
(2137); 401 M Street, SW; Washington,
DC 20460; and to the Office of
Information and Regulatory Affairs,
Office of Management and Budget, 725
17th Street, NW; Washington, DC 20503,
marked "Attention: Desk Officer for
EPA." Include the ICR number in any
correspondence. Since OMB is required
to make a decision concerning the ICR
between 30 and 60 days after July 23,
1999. a comment to OMB is best assured
of having its full effect if OMB receives
it by August 23. 1999. The final rule
will respond to any OMB and public
comments on the information collection
requirements contained in this proposal.
List of Subjects
40 CFR Part 148
Administrative practice and
procedure. Hazardous wastes, Reporting
and recordkeeping requirements, Water
supply.
40 CFR Part 261
Environmental protection, Hazardous
waste. Recycling, Reporting and
recordkeeping requirements.
40 CFR Part 268
Environmental protection. Hazardous
waste, Reporting and recordkeeping
requirements.
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 recordkeeping
requirements, Water pollution control,
Water supply.
40 CFR Part 302
Environmental protection, Air
pollution control, Chemicals,
Emergency Planning and Community
Right-to-Know Act, Hazardous
substances, Hazardous waste.
Intergovernmental relations. Natural
resources. Reporting and recordkeeping
requirements, Superfund, Water
pollution control, Water supply.
Dated: June 30, 1999.
Carol M. Browner,
Administrator.
For the reasons set out in the
preamble, title 40, chapter I of the Code
of Federal Regulations is proposed to be
amended as follows:
PART 148—HAZARDOUS WASTE
INJECTION RESTRICTIONS
1. The authority citation for part 148
continues to read as follows:
Authority: Sees. 3004, Resource
Conservation and Recovery Act, 42 U.S.C.
6901 etseq.
2. Section 148.18 is amended by
adding paragraphs (j) and (k) to read as
follows:
§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 EPA
Hazardous Waste Numbers K167 and
K168 are prohibited from underground
injection.
(k) The requirements of paragraphs (a)
through (j) of this section do not apply:
(1) If the wastes meet or are treated to
meet the applicable standards specified
in Subpart D of part 268 of this chapter;
or
(2) If an exemption from a prohibition
has been granted in response to a
petition under Subpart C of this part; or
(3) During the period of extension of
the applicable effective date, if an
extension has been granted under
§ 148.4.
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
3. The authority citation for Part 261
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921,
6922, 6924 (y), and 6938.
4. Section 261.4 is amended by
revising paragraph (b)(15) to read as
follows.
§261.4 Exclusions.
*****
(b) * * *
(15) Leachate or gas condensate
collected from landfills where certain
solid wastes have been disposed,
provided that:
(i) The solid wastes disposed would
meet one or more of the listing
descriptions for Hazardous Waste Codes
K167, K168, K169, K170, K171, and
K172 if these wastes had been generated
after the effective date of the listing;
(ii) The solid wastes described in
paragraph (b)(15)(i) of this section were
disposed prior to the effective date of
the listing;
(iii) The leachate or gas condensate do
not exhibit any characteristic of
hazardous waste nor are derived from
any other listed hazardous waste;
(iv) Discharge of the leachate or gas
condensate, including leachate or gas
condensate transferred from the landfill
to a POTW by truck, rail, or dedicated
pipe, is subject to regulation under
sections 307 (b) or 402 of the Clean
Water Act;
(v) After February 13, 2001, leachate
or gas condensate derived from K169-
K172 will no longer be exempt if it is
stored or managed in a surface
impoundment prior to discharge. After
[date 24 months after publication date of
the final rule], leachate or gas
condensate derived from K167-K168
will no longer be exempt if it is stored
or managed in a surface impoundment
prior to discharge. There is one
exception: if the surface impoundment
is used to temporarily store leachate or
gas condensate in response to an
emergency situation (e.g., shutdown of
wastewater treatment system), provided
the impoundment has a double liner,
and provided the leachate or gas
condensate is removed from the
impoundment and continues to be
managed in compliance with the
conditions of this paragraph (b)(15) after
the emergency ends.
*****
5. Section 261.32 is amended by
designating the introductory text and
the table as paragraph (a) and by
amending the newly designated table by
adding a new subgroup "Organic dyes
and pigments" and it's entries at the end
of the table and by adding paragraphs
(b) and (c) to read as follows.
§261.32 Hazardous wastes from specific
sources.
(a) * * *
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Federal Register/Vol. 64, No. 141/Friday. July 23, 1999/Proposed Rules
40227
Industry and EPA hazard-
waste No.
Hazardous waste
Hazardous
code
Organic dyes and pig-
ments:
K167
K168
Spent filter aids, diatomaceous earth, or adsorbents used in the production of azo, anthraquinone or (T)
triarylmethane dyes, pigments, or FD&C colorants, unless these wastes do not contain any of the
constituents identified in paragraph (b)(3)(iii) of this section at a concentration equal to or greater
than the hazardous level set for that constituent as demonstrated by the procedures specified in
paragraph (b) of this section.
Wastewater treatment sludges from the production of triarylmethane dyes and pigments (excluding tri- (T)
arylmethane pigments using aniline as a feedstock), unless these wastes do not contain any of the
constituents identified in paragraph (b)(3)(iii) of this section at a concentration equal to or greater
than the hazardous level set for that constituent as demonstrated by the procedures soecified in
paragraph (b) of this section.
(b) Procedures for determining
potential K167 and Kl 68 wastes to be
nonhazardous. A generator of wastes
that fall within the K167 or K168 listing
descriptions must use the following
waste analysis and handling procedures
if it wants to determine that its waste is
nonhazardous. If the procedures are
completed and the waste is determined
to be nonhazardous within 60 days of
[the effective date of the final rule], or
within 60 days after the waste is first
generated, then all of the waste
generated after the effective date or the
first generation date is nonhazardous
(assuming the levels of the relevant
constituents identified in paragraph
(b) (3) (iii) of this section are in fact
below the listing levels). If the
determination is made more than 60
days after [the effective date of the final
rule] or 60 days after the waste is first
generated, the determination will not
become effective until the date the
generator receives a written receipt or
confirmation (e.g., Registered Mail or
delivery service receipt) that its
notification and certification has been
delivered to the EPA. After the generator
has received this receipt or
confirmation, any waste generated on or
after the generation date of the waste
that was analyzed for the hazardousness
determination is nonhazardous
(assuming the levels of the relevant
constituents identified in paragraph
(b) (3) (iii) of this section are in fact
below the listing levels). Any waste
generated prior to that generation date
remains hazardous.
(1) Initial waste analysis. Thie waste
generator must collect a minimum of 4
representative samples of the waste as-
generated and analyze it for the
constituents identified in the applicable
list under paragraph (b)(3)(iii) of this
section. Instead of analyzing for a
constituent, the generator may also
apply knowledge of the constituents in Aniline
the wastes based on the materials and Benzaldehyde
processes used to document that a
constituent is not present in the waste.
(2) Waste holding and handling. The
waste generator must store the waste
until a hazardous waste listing
determination is completed as specified
in the condition in paragraph (b)(3):of
this section. The waste must be stored
in containers, or in another manner1 that
does not involve land placement.
(3) Hazardous or nonhazardous waste
listing determination for waste as-
generated. The waste generator,
following an initial waste analysis, must
make a hazardous or nonhazardous'
determination for the waste as-generated
based on the data obtained from the
initial waste analysis.
(i) Hazardous determination. If any of
the waste sampled contains any of the
constituents in the applicable list under
paragraph (b) (3) (iii) of this section at a
concentration equal to or greater than
the hazardous level set for that
constituent, the waste is a listed
hazardous waste and subject to all
applicable RCRA Subtitle C hazardous
waste requirements.
(ii) Nonhazardous determination. If
none of the waste sampled contains any
of the constituents in the applicable list
under paragraph (b) (3) (iii) of this
section at concentrations equal to or
greater than the hazardous levels set for
these constituents, the waste is
determined to be nonhazardous and
subject only to notification and
recordkeeping requirements described
in paragraph (c) of this section.
(iii) Hazardous (listing) levels. All
concentrations in the waste sample (s)
for constituents identified in this
paragraph (b)(3)(iii) that are equal to or
greater than the following levels:
CONSTITUENT LEVELS FOR K167 (MG/
KG) ;
[Levels are not included due to business
confidentiality concerns]
CONSTITUENT LEVELS FOR K167 (MG/
KG)—Continued
[Levels are not included due to business
confidentiality concerns]
p-Chloroaniline
p-Cresol
N,N-Dimethylaniline
3,3'-Dimethoxybenzidine
Diphenylamine
1,2-Diphenylhydrazine
Formaldehyde
Naphthalene
Phenol
p-Phenylenediamine
o-Toluidine
p-Toluidine
[Other constituent(s) not included due to
business confidentiality concerns]
CONSTITUENT LEVELS FOR K168 (MG/
KG)
Benzaldehyde
Dimethylamine, N,N-
Diphenylamine
Formaldehyde
Toluidine, o-
Toluidine, p-
5000
300
27000
7000
13
23
[Constituent not included due to business
confidentiality concerns]
(4) Hazardous or nonhazardous waste
listing determination for wastes after
treatment. If a waste that has been
determined to be a K167 or K168 listed
hazardous waste is treated to below
hazardous levels, the waste generator or
treater may make a determination that
the residue of the treatment process is
nonhazardous by applying the process
set forth for wastes as-generated in
paragraphs (b)(l) through (b)(3) of this
section to the treated waste. The
effective date of when the residue
becomes nonhazardous will be the date
when the waste generator or treater
receives a return receipt or confirmation
that the notification and certification
submitted has been delivered to EPA.
However, the residue remains subject to
the LDR treatment standards for K167 or
K168 as appropriate.
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Federal Register/Vol. 64, No. 141/Friday, July 23, 1999/Proposed Rules
(5) Follow-up analysis. The waste
generator must collect and analyze a
minimum of one representative sample
of the nonhazardous waste every
calendar year it is generated. The waste
generator must also analyze a minimum
of one representative sample of the
nonhazardous waste anytime, after the
initial waste analysis, there is a process
change that may increase the
concentration of hazardous constituents
in the waste. If process change has not
occurred, the waste generator may use
the results of the initial waste analysis
to create a more tailored list of
constituents for follow-up analysis. If
follow-up analysis (or any analysis of
your waste after the initial waste
analysis) shows that any of the waste
sampled contains any of the
constituents in the applicable list under
paragraph (b)(3)(iii) of this section at a
concentration equal to or greater than
the hazardous level set for that
constituent, the waste is a listed
hazardous waste and subject to all
applicable RCRA Subtitle C
requirements. In order to determine the
waste nonhazardous again, the waste
generator or treater must apply all of the
procedures in paragraphs (b)(l) through
(b)(3) or paragraph (b)(4) of this section
to the waste.
(c) Notification and recordkeeping
requirements for wastes determined to
be nonhazardous. These requirements
apply only for wastes that have been
determined to be nonhazardous based
on the procedures described in
paragraph (b) of this section. The waste
generator must meet the following
notification and recordkeeping
requirements prior to disposing any
wastes as nonhazardous.
(1) Submit notification. The waste
' generator claiming that its waste is
nonhazardous must submit a one-time
notification to EPA (by mail or delivery
service which provides return receipt)
within 60 days following [the effective
date of the final rule] or initial
generation of the waste. The notification
must include the waste generator's
name and address, a representative's
name and telephone number,
description of the waste and potential
waste code, and an estimate of the
average annual volume of waste claimed
to be nonhazardous. The notification
must also include a certification signed
by an authorized representative and
must state as follows:
I certify under penalty of law that none of
the waste sampled contains any of the
constituents of concern identified for this
waste at concentrations equal to or greater
than the hazardous concentration levels set
for these constituents, and that these levels
were determined without dilution of the
waste. Based on information and belief
formed after reasonable inquiry, the
statements and information in the document
are true, accurate, and complete. I am aware
that there are significant penalties for
submitting a false certification, including the
possibility of fine and imprisonment.
(2) Maintain records on-site. At a
minimum, the waste generator is
required to keep the following
information on site:
(i) A copy of the notification and
certification sent to EPA and return
receipt.
(ii) The sampling and analysis plan
used for collecting and analyzing
representative sample (s) of the waste.
(iii) The initial sampling and analyses
data and process knowledge information
(if used) that support a nonhazardous
claim for the waste.
(iv) All follow-up sampling and
analyses data and process knowledge
information (if used) for the most recent
three years.
6-7. Appendix VII to Part 261 is
amended by adding the following waste
streams entries in alphanumeric order
(by the first column) to read as follows:
Appendix VH to Part 261—Basis for
Listing Hazardous Waste
EPA hazardous
waste No.
Hazardous constituents for which listed
K167 Aniline, benzaldehyde, p-chloroaniiine, p-cresol, N,N-dimethy!aniline, 3,3-dimethoxybenzidine, diphenylamine, 1,2-
diphenyihydrazine, 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 VHI to Part 261 is amended by adding the following waste streams entries in alphanumeric order
to read as follows.
. i
Appendix VHI to Part 261—Hazardous Constituents
Chemical ab- Hazardous
stracts No. waste No.
Common name
Chemical abstracts name
Benzaldehyde Same
* * * *
p-Cresol Phenol, 3-methyl-
. « * *
N,N-DimethyIaniiine Benzenamine, N,N-dimethyl-
p-Phenylenediamine Benzenediamine, 1,4-
Identity of other constituents) not included due to busi-
ness confidentiality concerns.
100-52-7
*
106-44-5 U052
*
121-69-7
106-50-3
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federal Register/Vol. 64, No. 141/Friday, July 23, 1999/Proposed Rules
40229
Common name
Chemical abstracts name
Chemical ab- Hazardous
stracts No. waste No.
PART 268—LAND DISPOSAL
RESTRICTIONS
9. The authority citation for part 268
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921,
and 6924.
10. Section 268.32 is added to subpart
C to read as follows:
§268.32 Waste specific prohibitions—dye
and pigment wastes.
(a) Effective [date 6 MONTHS from
date of publication of final rule], the
following wastes are prohibited from
land disposal: the wastes specified in
part 261 of this chapter as EPA
Hazardous Waste Numbers K167 and
K168, soil and debris contaminated with
these wastes, radioactive wastes mixed
with these hazardous wastes, and soil
and debris contaminated with these
radioactive mixed wastes.
(b) The requirements of paragraph (a)
of this section do not apply if:
(1) The wastes meet the applicable
treatment standards specified in subpart
D of this part;
(2) Persons have been granted an
exemption from a prohibition pursuant
to a petition under §268.6, with respect
to those wastes and units covered by the
petition;
(3) The wastes meet the applicable
alternate treatment standards
established pursuant to a petition
granted under §268.44; or
(4) Persons have been granted an
extension to the effective date of a
prohibition pursuant to §268.5, with
respect to these wastes covered by the
extension.
11. Section 268.40 is amended by
adding K167 and K168 in alphanumeric
order to the Table of Treatment
Standards to read as follows: (The
footnotes are republished without
change.)
§ 268.40 Applicability of treatment
standards.
TREATMENT STANDARDS FOR HAZARDOUS WASTES
[Note: NA means not applicable]
Regulated hazardous Wastewaters Nonwaste-
/*nnei iti tant ,
Waste code
Waste description and treatment/regulatory sub-
Catesory1 Common
name
Wdlblb
Concentra-
tion in mg/
CAS 2 Concentration in mg/l s, or technology k9 5, un|ess
No. , code* notedas
TCLP",or
technology
code
K167.
K168 .
Spent filter aids, diatomaceous earth, or adsorb- NA
ents used in the production of azo,
anthraquinone, or triarylmethane dyes, pig-
ments of FD&C colorants.
Wastewater treatment sludges from the produc- NA .
tion of triarylmethane dyes and pigments (ex-
cluding triarylmethane pigments using aniline
as a feedstock).
NA (WETOX or CHOXD) fb CARBN: or CMBST
CMBST.
NA (WETOX or CHOXD) ffa CARBN: or CMBST
CMBST.
Footnotes to Treatment Standard Table 268.40
*»• "-"Won- - Treatment/Regulatory
saa constituents are described -
s Concentration standards for wastewaters are expressed in mg/l and are based on analysis of composite samples
£S3SC^^^ °f TeChn°'^ Codes « «•**"• .
^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 mc.neration in units operated in accordance with the technical requirements of 40 CFR %rt 264 Suboart
0 or part 265 Subpart O, or based upon combustion in fuel substitution units operating in accordance with applicable technical '
t ™ ^"^ aCC°rdin9 4° P™™ 'm *° C™ *68-40(d)- A" c°ncentf CtencSrSs for
"^nation - * chemical
in 40 CFR 268.42
PART 271—REQUIREMENTS FOR
AUTHORIZATION OF STATE
HAZARDOUS WASTE PROGRAMS
12. The authority citation for part 271
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), and
6926.
Subpart A—Requirements for Final
Authorization
13. Section 271.1 (j) is amended by
adding the following entry to Table 1 in
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40230
Federal Register/Vol. 64, No. 141/Friday, July 23, 1999/Proposed Rules
chronological order by date of 2 in chronological order by effective
publication in the Federal Register, and date, to read as follows.
by adding the following entry to Table
§ 271.1 Purpose and scope.
*****
0)***
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 Dye and Pigment Production [Federal Register page numbers [Effective date of final rule].
Register of final rule]. Waste Listing. for 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, 3004(g)(4)(C) and 3004(m) [Date of publication of final
and prohibition on land disposal of radioactive waste rule], [FR page num-
mixed with K167 and K168 wastes, including soil bers].
and debris.
PART 302—DESIGNATION,
REPORTABLE QUANTITIES, AND
NOTIFICATION
Authority: 42 U.S.C. 9602. 9603, and 9604; alphanumerical order at the end of the
33 U.S.C. 1321 and 1361. table to read as follows:
15. In § 302.4, table 302.4 is amended §302.4 Designation of hazardous
14. The authority citation for part 302 by adding the following new entries in substances.
continues to read as follows: *****
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
Regulatory
synonyms
Statutory
RQ
Codet
Rnal RQRQ
Cate9ory Pounds (Kg)
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
pigments (excluding triarylmethane pig-
ments using aniline as a feedstock).
4 K167
4 K168
t Indicates the statutory sources as defined by 1,2, 3, and 4 below.
w • * *
[nation of this hazardous substance under CERCLA is RCRA Section 3001.
4—Indicates that the statutory source for designation of this ha
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 656O-50-P
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