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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                      Federal Register/Vol. 64,  No.  141/Friday,  July 23,  1999 /Proposed Rules
                                                                            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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                     Federal Register/Vol.  64,  No. 141/Friday. July 23,  1999 /Proposed Rules
                                                                       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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Federal  Register/Vol.  64,  No. 141/Friday, July 23,  1999/Proposed Rules
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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tit
         40200
Federal  Register/Vol. 64, No.  141/Friday, July 23, 1999/Proposed Rules
         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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                     Federal Register/ Vol.  64, No.  141/Friday,  July .23,  1999/Proposed Rules
                                                                       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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                      Federal  Register/Vol.  64, No. 141/Friday, July 23, 1999/Proposed Rules
                                                                       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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                     Federal  Register/Vol. 64, No.  141/Friday,  July 23,  1999/Proposed Rules
                                                                      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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 40206
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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 40208
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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                     Federal Register/Vol.  64, No. 141/Friday, July'. 23, 1999/Proposed Rules
                                                                       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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Federal Register/Vol. 64, No. 141/Friday, July 23, 1999/Proposed Rules
 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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                      Federal Register/Vol. 64, No.  141/Friday,  July 23,  1999/Proposed Rules
                                                                       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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Federal Register/Vol. 64, No. 141/Friday, July 23, 1999/Proposed Rules
 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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Federal Register/Vol. 64, No.  141/Friday, July 23, 1999 /Proposed Rules
                                 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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Federal  Register/Vol. 64, No. 141/Friday, July 23, 1999/Proposed Rules
 £. 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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                     Federal Register/Vol. 64, No.  141 /Friday.  July 23,  1999/Proposed Rules
                                                                       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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                    Federal Register/Vol. 64, No.  141/Friday, July 23, 1999/Proposed Rules
                                                                      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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Federal Register/Vol. 64, No. 14II Friday,  July 23, 1999/Proposed Rules
 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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                     Federal Register/Vol. 64, No.  141/Friday, July 23, 1999/Proposed Rules
                                                                       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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Federal Register/Vol.  64,  No. 141/Friday, July 23, 1999/Proposed Rules
 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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                     Federal Register/Vol. 64, No.  141/Friday,  July 23,  1999/Proposed Rules
                                                                       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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Federal Register/Vol. 64, No.  141/Friday, July 23,  1999/Proposed Rules
 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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                     Federal Register/Vol. 64, No.  141/Friday, July 23,  1999 /Proposed Rules
                                                                       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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40226
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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40228
   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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