[Federal Register Volume 66, Number 30 (Tuesday, February 13, 2001)]
[Proposed Rules]
[Pages 10060-10140]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-3087]



[[Page 10059]]

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Part II





Environmental Protection Agency





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40 CFR Parts 148, et al.



Hazardous Waste Management System; Identification and Listing of 
Hazardous Waste; Paint Production Wastes; Proposed Rule

  Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / 
Proposed Rules  

[[Page 10060]]


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ENVIRONMENTAL PROTECTION AGENCY

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

[SWH-FRL-6940-6]
RIN 2050-AE32


Hazardous Waste Management System; Identification and Listing of 
Hazardous Waste; Paint Production Wastes; Land Disposal Restrictions 
for Newly Identified Wastes; CERCLA Hazardous Substance Designation and 
Reportable Quantities; Designation of n-Butyl Alcohol, Ethyl Benzene, 
Methyl Isobutyl Ketone, Styrene, and Xylenes as Appendix VIII 
Constituents; Addition of Acrylamide and Styrene to the Treatment 
Standards of F039; and Designation of Styrene as an Underlying 
Hazardous Constituent

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA proposes to amend the regulations for hazardous waste 
management under the Resource Conservation and Recovery Act (RCRA) by 
listing as hazardous certain waste solids and liquids generated from 
the production of paint. EPA is proposing a concentration-based listing 
approach for each of these wastes. Under this approach, the identified 
paint production wastes are hazardous if they contain any of the 
constituents of concern at concentrations that meet or exceed 
regulatory levels. Generators must determine whether their wastes are 
listed hazardous wastes. If their wastes are below regulatory levels 
for all constituents of concern, then their wastes are nonhazardous. We 
are also proposing a contingent management option for waste liquids. 
These wastes would not be subject to the listing if they are stored or 
treated exclusively in tanks or containers prior to discharge to a 
publicly owned treatment works or discharged under a Clean Water Act 
national pollutant discharge elimination system permit. This proposal 
would also add the toxic constituents n-butyl alcohol, ethyl benzene, 
methyl isobutyl ketone, styrene, and xylenes found in these identified 
wastes to the list of constituents that serves as the basis for 
classifying wastes as hazardous, and to establish treatment standards 
for the wastes. Due to the uncertainties in our assessment of the 
management of paint manufacturing waste liquids in surface 
impoundments, we are also considering an alternative proposal not to 
list paint manufacturing waste liquids.
    If these paint production wastes are listed as hazardous waste, 
then they will be subject to stringent management and treatment 
standards under Subtitle C of RCRA. Additionally, this action proposes 
to designate these wastes as hazardous substances subject to the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA) and to adjust the one pound statutory reportable quantities 
(RQs) for these substances. Other actions proposed in this notice would 
add acrylamide and styrene to the treatment standards applicable to 
multisource leachate and designate styrene as an underlying hazardous 
constituent. As a result, a single waste code would continue to be 
applicable to multisource landfill leachates and residues of 
characteristic wastes would require treatment when styrene is present 
above the proposed land disposal standards.

DATES: EPA will accept public comments on this proposed rule until 
April 16, 2001. 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 February 27, 2001.

ADDRESSES: If you would like to file a request for a public hearing on 
this proposal, please submit your request to Mr. David Bussard at: 
Office of Solid Waste, Hazardous Waste Identification Division (5304W), 
U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., 
Washington, DC 20460, (703) 308-8880.
    If you wish to comment on this proposed rule, you must send an 
original and two copies of the comments referencing docket number F-
2001-PMLP-FFFFF to: RCRA Docket Information Center, Office of Solid 
Waste (5305G), U.S. Environmental Protection Agency Headquarters (EPA, 
HQ), 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Hand 
deliveries of comments should be made to the RCRA Information Center 
(RIC) located at Crystal Gateway, First Floor, 1235 Jefferson Davis 
Highway, Arlington, VA. You also may submit comments electronically by 
sending electronic mail through the Internet to: [email protected]. 
See the beginning of the Supplementary Information section for 
information on how to submit your comments as well as view public 
comments and supporting materials.
    Please do not submit any confidential business information (CBI) 
electronically. 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, 1200 Pennsylvania Avenue, NW., Washington, DC 
20460.

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 Ms. Patricia Cohn or Mr. David Carver of the Office of 
Solid Waste (5304W), U.S. Environmental Protection Agency, 1200 
Pennsylvania Avenue, NW., Washington, DC 20460, (E-mail addresses and 
telephone numbers: [email protected] (703-308-8675); 
[email protected] (703-308-8603)). For technical information on the 
CERCLA aspects of this rule, contact Ms. Lynn Beasley, Office of 
Emergency and Remedial Response, Analytical Operations and Data Quality 
Center (5204G), U.S. Environmental Protection Agency, 1200 Pennsylvania 
Avenue, NW., Washington, DC 20460, [E-mail address and telephone 
number: [email protected] (703-603-9086)].

SUPPLEMENTARY INFORMATION:

How Do I Submit Comments to This Proposed Rule?

    We are 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). Specify on the disk label the word 
processing software and version/edition as well as the commenter's 
name. This will allow us to convert the comments into one of the word 
processing formats used by the Agency. Please use mailing envelopes 
designed to physically protect the submitted diskettes. We emphasize 
that submission of comments on diskettes is not mandatory, nor will it 
result in any advantage or disadvantage to any commenter.
    If you submit comments electronically, identify comments in 
electronic format with the docket number F-2001-PMLP-FFFFF. You must 
submit all electronic comments as an ASCII (text) file, avoiding the 
use of special characters and any form of encryption.

How Can I View Supporting Documents for This Proposed Rule?

    You may view either the paper or electronic form of public comments 
and supporting materials accompanying today's proposal. You may access 
the paper copies of these supporting

[[Page 10061]]

documents in the RIC (See ADDRESSES section for address). The RIC is 
open from 9 am to 4 pm, 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.
    You may also view these documents electronically on the Internet: 
http://www.epa.gov/epaoswer/hazwaste/id/paint.
    We 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 under 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 may, however, seek clarification of electronic comments 
that become garbled in transmission or during conversion to paper form, 
as discussed above.

Customer Service

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 views on options we propose, new data, 
information on how this rule may affect you, or other relevant 
information. We welcome your views on all aspects of this proposed 
rule, but we particularly request comments on the items identified at 
the end of each section. Your comments will be most effective if you 
follow the suggestions below:
     Include your name, the date, and the docket number with 
your comments. Remember that your comments must be submitted by the 
deadline specified in this notice.
     Reference your comments to specific sections of the 
proposal by using section titles, page numbers of the preamble, or the 
regulatory citations.
     Clearly label any confidential business information (CBI) 
submitted as part of your comments.
     Explain your views as clearly as possible and provide a 
summary of the reasoning you used to arrive at your conclusions as well 
as examples to illustrate your views where possible.
     Tell us which parts of this proposal you support, as well 
as those with which you disagree.
     Offer specific alternatives.
     Provide solid technical data to support your views. For 
example, if you estimate potential costs, explain how you arrived at 
your estimate.

Contents of This Proposed Rule

I. Overview
    A. Who Potentially Will Be Affected by This Proposed Rule?
    B. What Impact May This Proposed Rule Have?
    C. Why Does This Proposed Rule Read Differently from Other 
Listing Rules?
    D. What Are The Statutory Authorities for This Proposed Rule?
II. Background
    A. How Does EPA Define a Hazardous Waste?
    B. How Does EPA Regulate RCRA Hazardous Wastes?
    C. How Does EPA Regulate Solid Wastes That Are Not RCRA 
Hazardous Wastes?
    D. Overview of The Hazardous Waste Listing Determination Process 
for Paint Production Wastes
    1. Suspension of Previous Listings
    2. Consent Decree Schedule for This Proposal
    E. Existing Regulations That Apply to This Industry
    F. What Industries and Wastes Are Covered in This Proposed Rule?
    1. Scope of Consent Decree
    2. Scope of Listing: Off-Specification Products
    3. Recycling Issues
    G. Description of The Paint and Coatings Industry
    H. What Information Did EPA Collect and Use?
    1. Site Visits
    2. DataBase of Paint Manufacturing Information from Published 
Sources
    3. The RCRA Section 3007 Survey
    a. Overview
    b. Structuring The Survey to Capture All The Wastes of Concern
    c. Identifying The Universe of Paint Manufacturing Facilities
    d. Constructing a Stratified Random Sample
    e. Conducting The Survey and Analyzing The Results
    f. Meeting Our Objectives for The Survey
III. 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. How Did The Agency Use The Survey Results for This Proposed 
Listing Determination?
    1. General Assessment of The Paint Industry's Waste Generation 
and Management Practices
    2. Management Scenarios Currently Used at Paint Facilities and 
Our Selection of Waste Management Scenarios for Risk Assessment 
Modeling
    a. Plausible Waste Management Selection Criteria and Modeling 
Considerations
    b. Selection of Waste Management Scenarios for Risk Assessment 
Modeling of Nonhazardous Paint Manufacturing Waste Solids
    c. Selection of Waste Management Scenarios for Risk Assessment 
Modeling of Nonhazardous Paint Manufacturing Waste Liquids
    d. Survey Data as Input to Modeling Parameters
    E. What Risk Assessment Approach Did EPA Use to Determine 
Allowable Constituent Waste Concentrations?
    1. Which Factors Did EPA Incorporate Into Its Quantitative Risk 
Assessment?
    2. How Did EPA Use Damage Case Information?
    3. Overview of The Risk Assessment
    4. How EPA Chose Potential Constituents of Concern
    a. Phase 1: How Did EPA Develop a Preliminary List of 
Constituents?
    b. Phase 2: How Did EPA Select Potential Constituents of Concern 
for The Risk Assessment?
    c. Phase 3: How Did EPA Choose Additional Constituents for The 
Risk Assessment?
    5. What Was EPA's Approach to Conducting Human Health Risk 
Assessment?
    a. What Waste Management Scenarios Were Evaluated?
    b. What Exposure Scenarios Did EPA Evaluate?
    c. How Did EPA Quantify Each Receptor's Exposure to 
Contaminants?
    d. How Did EPA Predict The Release and Transport of Constituents 
From a Waste Management Unit to Receptor Locations?
    e. What Is The Human Health Toxicity of COC's Identified by EPA?
    f. What Are The Results From The Risk Assessment?
    g. What Is The Uncertainty in Human Health Risk Results?
    6. What Was EPA's Approach to Conducting The Ecological Risk 
Assessment?
    a. How Were Ecological Exposures Estimated?
    b. What Ecological Receptors Did The EPA Evaluate?
    c. How Did EPA Consider The Toxicity of Constituents in The 
Ecological Risk Assessment?
    7. Did EPA Conduct a Peer Review of The Risk Assessment?
IV. Proposed Listing Determinations and Regulations
    A. What Are The Proposed Regulations for Paint Production 
Wastes?
    B. Why Are We Proposing to Use The Level of Constituents in The 
Waste Solids as Total Waste Concentrations Rather Than Leachate 
Concentrations?
    C. Why Are We Proposing to Exclude Waste Liquids Managed in 
Tanks?
    1. On-Site Storage and Treatment Tanks
    2. Management of Liquid Paint Manufacturing Wastes in Off-Site 
Treatment Tanks
    D. Why Are We Proposing a Contingent Management Listing for 
Liquid Paint Manufacturing Wastes, and What Other Options Are We 
Considering?

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    E. Potential for Formation of Non-Aqueous Phase Liquids in Paint 
Manufacturing Wastes
    F. Scope of The Listings and The Effect on Treatment Residuals
    G. Relationships of The Proposed Listings to The TC
    H. What Is The Status of Landfill Leachate from Previously 
Disposed Wastes?
V. Proposed Generator Requirements for Implementation of 
Concentration-Based Listings
    A. Would I Have to Determine Whether or Not My Wastes Are 
Hazardous?
    B. How Would I Manage My Wastes During The Period Between The 
Effective Date of The Final Rule and Initial Hazardous Waste 
Determination for My Wastes?
    C. What Procedures Would I Follow to Determine If My Wastes Are 
Nonhazardous?
    1. Testing Wastes
    2. Using Knowledge of The Wastes
    D. How Would The Proposed Contingent Management Listing for 
Liquid Wastes Be Implemented?
    E. What Records Would I Need to Keep On-site to Support a 
Nonhazardous Determination for My Wastes?
    F. What Would Happen if I Do Not Meet The Recordkeeping 
Requirements for The Wastes That I Have Determined Are Nonhazardous?
    G. Could I Treat My Wastes to Below Listing Concentrations and 
Then Determine That My Wastes Are Nonhazardous?
    1. Paint Manufacturing Waste Solids
    2. Paint Manufacturing Waste Liquids
VI. Proposed Treatment Standards Under RCRA's Land Disposal 
Restrictions (LDRs)
    A. What are EPA's LDRs?
    B. How Does EPA Develop LDR Treatment Standards?
    C. What Treatment Standards Are Proposed?
    D. Other LDR-Related Provisions
    1. F039 Multisource Leachate and Universal Treatment Standards
    E. Is There Treatment and Management Capacity Available for 
These Proposed Newly Identified Wastes?
    1. What Is a Capacity Determination?
    2. What Are The Capacity Analysis Results?
    3. What Is The Available Treatment Capacity for Other Wastes 
Subject to Revised UTS and F039 Standards?
VII. State Authority and Compliance
    A. How Are States Authorized Under RCRA?
    B. How Would This Rule Affect State Authorization?
    C. Who Would Need to Notify EPA That They Have a Hazardous 
Waste?
    D. What Would Generators and Transporters Have to Do?
    E. Which Facilities Would Be Subject to Permitting?
    1. Facilities Newly Subject to RCRA Permit Requirements
    2. Existing Interim Status Facilities
    3. Permitted Facilities
    4. Units
    5. Closure
VIII. CERCLA Designation and Reportable Quantities
    A. What Is The Relationship Between RCRA and CERCLA?
    B. How Does EPA Determine Reportable Quantities?
    C. Is EPA Proposing to Adjust The Statutory One Pound RQ for 
These Wastes?
    D. How Would a Concentration-Based Hazardous Waste Listing 
Approach Relate to My Reporting Obligations Under CERCLA? When Would 
I Need to Report a Release of These Wastes Under CERCLA?
    E. How Would I Report a Release?
    F. What Is The Statutory Authority for This Program?
    G. How Can I Influence EPA's Thinking on Regulating K179 and 
K180 Under CERCLA?
IX. Analytical and Regulatory Requirements
    A. Is This a Significant Regulatory Action Under Executive Order 
12866?
    B. What Consideration Was Given to Small Entities Under The 
Regulatory Flexibility Act (RFA), as Amended by The Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 
et.seq?
    C. What Consideration Was Given to Children's Health Under 
Executive Order 13045?
    D. What Consideration Was Given to Environmental Justice Under 
Executive Order 12898?
    E. What Consideration Was Given to Unfunded Mandates?
    F. What Consideration Was Given to Federalism Under Executive 
Order 13132?
    G. What Consideration Was Given to Tribal Governments Under 
Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments?
X. Paperwork Reduction Act (PRA), 5 U.S.C. 3501-3520
    A. How is The Paperwork Reduction Act Considered in Today's 
Proposed Rule?
XI. National Technology Transfer and Advancement Act of 1995 (Pub L. 
104-113*12(d) (15 U.S.C. 272 Note))
    A. Was The National Technology Transfer and Advancement Act 
Considered?

I. Overview

A. Who Potentially Will be Affected by This Proposed Rule?

    If finalized, this regulation could potentially affect those who 
generate and manage certain paint production wastes. Landfill owners/
operators may also be impacted. A common disposal practice for much of 
the paint production wastes of concern has been in solid waste 
landfills. This proposed listing may result in leachate from some of 
these landfills becoming hazardous under the derived-from rule 
(described further in Section V.H). However, impacts to these 
facilities are projected to be negligible under our proposed approach 
of a Clean Water Act temporary deferral. This action may also affect 
entities that need to respond to releases of these wastes as CERCLA 
hazardous substances. These potentially affected entities are described 
in the Economics Background Document placed in the docket in support of 
today's proposed rule. A summary is provided in the table below.

        Summary of Facilities Potentially Affected by EPA's 2000 Paint Production Waste Listing Proposal
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                                                                                                      Estimated
                                                                                                      number of
              Item                  SIC code    NAICS code            Industry sector name               U.S.
                                                                                                       relevant
                                                                                                      facilities
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1...............................         2851       325510  Paint and Coating Manufacturing........          972
2...............................         4953       562212  Solid Waste Landfill...................        35-48
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    This list of potentially affected entities may not be exhaustive. 
Our aim is to provide a guide for readers regarding entities likely to 
be regulated by this action. This action, however, 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 along with the proposed rules amending RCRA that are found at 
the end of this Federal Register notice. If you have questions 
regarding the applicability of this action to a particular entity, 
consult the person listed in the preceding section entitled FOR FURTHER 
INFORMATION CONTACT.

B. What Impact May This Proposed Rule Have?

    If you are a paint manufacturer and you generate wastes described 
in this

[[Page 10063]]

proposed rule, then you would need to determine if your wastes meet 
these newly listed hazardous waste codes, if finalized. 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 (see Tables IV-
1 and IV-2). If you determine that your wastes are hazardous under this 
listing, then the wastes must be stored, treated and disposed in a 
manner consistent with the RCRA Subtitle C hazardous waste regulations 
at 40 CFR parts 260-272. If your annual generation of these paint 
production wastes exceeds 40 metric tons of waste solids and/or 100 
metric tons of waste liquids, you must also perform certain routine 
testing of the affected wastes and keep certain records of these wastes 
(as described in Section V.E) on-site.
    We are proposing that generators must meet the necessary conditions 
to determine whether or not a waste is hazardous based on the steps 
described in Section V.C, of today's proposed rule. If you determine 
that your wastes are hazardous under this listing, then you are also 
subject to all applicable requirements for hazardous waste generators 
in 40 part CFR 262. If you were not previously a hazardous waste 
generator, and you determine you generate this newly-listed hazardous 
waste; then you must notify the EPA, according to section 3010 of RCRA, 
that you generate hazardous waste. Following an initial determination 
whether your wastes are hazardous or nonhazardous under this listing, 
you would have a continuing obligation to make such a determination at 
least on an annual basis.

C. Why Does This Proposed Rule Read Differently From Other Listing 
Rules?

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

                                Acronyms
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         Acronym                             Definition
------------------------------------------------------------------------
m...............  Micrometer
BDAT.....................  Best Demonstrated Available Technology
BFI......................  Browning-Ferris Industries (now Allied Waste
                            Industries Inc.)
BHP......................  Biodegradation, hydrolysis and photolysis
BIF......................  Boiler and Industrial Furnace
BRS......................  Biennial Reporting System
CAA......................  Clean Air Act
CalEPA...................  California Environmental Protection Agency
CARBN....................  Carbon Absorption
CAS......................  Chemical Abstract Services
CBI......................  Confidential Business Information
CERCLA...................  Comprehensive Environmental Response
                            Compensation and Liability Act
CERCLIS..................  Comprehensive Environmental Response
                            Compensation and Liability Information
                            System
CESQG....................  Conditionally Exempt Small Quantity Generator
CFR......................  Code of Federal Regulations
CHOXD....................  Chemical or Electrolytic Oxidation
CMBST....................  Combustion
COC......................  Constituents of Concern
CSCL.....................  Chemical Stressor Concentration Limit
CSF......................  Cancer Slope Factor
CWA......................  Clean Water Act
CWT......................  Centralized Wastewater Treatment Facility
                            (May also be referred to as a wastewater
                            treatment facility, or WWTF)
EDF......................  Environmental Defense Fund
EO.......................  Executive Order
EP.......................  Extraction Procedure
EPA......................  Environmental Protection Agency
EPACMTP..................  EPA's Composite Model for Leachate Migration
                            with Transformation Products
EPCRA....................  Emergency Planning and Community Right-To-
                            Know Act
FR.......................  Federal Register
GDP......................  Gross Domestic Product
GNP......................  Gross National Product
HAP......................  Hazardous Air Pollutant
HEAST....................  Health Effects Assessment Summary Table
HQ.......................  Hazard Quotient
HSWA.....................  Hazardous and Solid Waste Amendments
HWIR.....................  Hazardous Waste Identification Rule
ICR......................  Information Collection Request
INC......................  Incineration
IRIS.....................  Integrated Risk Information System
ISCST3...................  Industrial Source Complex-Short Term
LDR......................  Land Disposal Restriction
MACT.....................  Maximum Achievable Control Technology
mg/kg....................  Milligram per kilogram
mg/L.....................  Milligram per liter
MLF......................  Municipal Landfill
MINTEQ...................  MINTEQ (model for geochemical equilibria in
                            ground water)

[[Page 10064]]

 
MINTEQA2.................  MINTEQA2 (model for geochemical equilibria in
                            ground water) Geochemical speciation model;
                            originally a combination of Mineral
                            Equilibrium Model (MINEQL) and the
                            thermodynamic database WATEQ3
MSDS.....................  Material Safety Data Sheet
MSW......................  Municipal Solid Waste
MT.......................  Metric Ton
NAICS....................  North American Industrial Classification
                            System
NAPL.....................  Non-Aqueous Phase Liquid
NCV......................   National Capacity Variance
NESHAP...................  National Emission Standards for Hazardous Air
                            Pollutants
NPCA.....................  National Paint and Coatings Association
NPDES....................  National Pollutant Discharge Elimination
                            System
NPL......................  National Priority List
NRC......................  National Response Center
NTTAA....................  National Technology Transfer and Advancement
                            Act
OEM......................  Original Equipment Manufacturing
OMB......................  Office of Management and Budget
OSW......................  Office of Solid Waste
OSWER....................  Office of Solid Waste and Emergency Response
OSWRO....................  Off-Site Waste and Recovery Operations
PBT......................  Persistent, Bioaccumulative and Toxic
POTW.....................  Publicly Owned Treatment Works
ppm......................  Parts Per Million
PRA......................  Paperwork Reduction Act
QA.......................  Quality Assurance
QC.......................  Quality Control
RCRA.....................  Resource Conservation and Recovery Act
RFA......................  Regulatory Flexibility Act
RfC......................  Reference Concentration
RfD......................  Reference Dose
RFSA.....................  Regulatory Flexibility Screening Analysis
RIC......................  RCRA Information Center
RODS.....................  Record of Decision System
RQ.......................  Reportable Quantity
RTK......................  Right-To-Know
SBA......................  Small Business Administration
SBREFA...................  Small Business Regulatory Enforcement
                            Fairness Act
SIC......................  Standard Industry Code
SOP......................  Standard Operating Procedure
SPIS.....................  Superfund Public Information System
SW-846...................  Test Methods for Evaluating Solid Wastes
TC.......................  Toxicity Characteristic
TCLP.....................  Toxicity Characteristic Leaching Procedure
TOC......................  Total Organic Carbon
TRI......................  Toxic Release Inventory
TSDF.....................  Treatment, Storage and Disposal facility
TSDR.....................  Toxic Substances and Disease Registry
TSS......................  Total Suspended Solids
UMRA.....................  Unfunded Mandates Reform Act
USC......................  United States Code
USLE.....................  Universal Soil Loss Equation
UTS......................  Universal Treatment Standard
VOC......................  Volatile Organic Compound
WETOX....................  Wet Air Oxidation
WMU......................  Waste Management Unit
WMX......................  WMX Technologies, Inc.
------------------------------------------------------------------------

D. What Are The Statutory Authorities for This Proposed Rule?

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

II. Background

A. How Does EPA Define a Hazardous Waste?

    EPA's regulations establish two ways of identifying solid wastes as 
hazardous under RCRA. A waste may be considered hazardous if it 
exhibits certain hazardous properties (``characteristics'') or if it is 
included on a specific list of wastes EPA has determined are hazardous 
(``listing'' a

[[Page 10065]]

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

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

    Under the third criterion, at 40 CFR 261.11(a)(3), we may decide to 
list a waste as hazardous if it contains hazardous constituents 
identified in 40 CFR part 261, appendix VIII, and if, after considering 
the factors noted in this section of the regulations, we ``conclude 
that the waste is capable of posing a substantial present or potential 
hazard to human health or the environment when improperly treated, 
stored, transported, or disposed of, or otherwise managed.'' We place a 
chemical on the list of hazardous constituents on Appendix VIII only if 
scientific studies have shown a chemical has toxic effects on humans or 
other life forms. When listing a waste, we also add the hazardous 
constituents that serve as the basis for listing to 40 CFR part 261, 
appendix VII.
    The regulations at 40 CFR 261.31 through 261.33 contain the various 
hazardous wastes the Agency has listed to date. Section 261.31 lists 
wastes generated from non-specific sources, known as ``F-wastes,'' and 
contains wastes that are usually generated by various industries or 
types of facilities, such as ``wastewater treatment sludges from 
electroplating operations'' (see code F006). Section 261.32 lists 
hazardous wastes generated from specific industry sources, known as 
``K-wastes,'' such as ``Spent potliners from primary aluminum 
production'' (see code K088). Section 261.33 contains lists of 
commercial chemical products and other materials, known as ``P-wastes'' 
or ``U-wastes,'' that become hazardous wastes when they are discarded 
or intended to be discarded.
    Today's proposed regulations would list certain paint production 
wastes as K-waste codes under Sec. 261.32. We are also proposing to add 
constituents that serve as the basis for the proposed listings to 
Appendix VII as well as to add certain constituents to the list of 
Hazardous Constituents in Appendix VIII that are not already included.
``Derived-from'' and ``Mixture'' Rules
    Residuals from the treatment, storage, or disposal of most listed 
hazardous wastes are also classified as hazardous wastes based on the 
``derived-from'' rule (40 CFR 261.3(c)(2)(i)). For example, ash or 
other residuals generated from the treatment of a listed waste 
generally carries the original hazardous waste code and is subject to 
the hazardous waste regulations. Also, the ``mixture'' rule (40 CFR 
261.3(a)(2)(iii) and (iv)) provides that, with certain limited 
exceptions, any mixture of a listed hazardous waste and a solid waste 
is itself a RCRA hazardous waste.
    Some materials that would otherwise be classified as hazardous 
wastes under the rules described above are excluded from jurisdiction 
under RCRA if they are recycled in certain ways. The current definition 
of solid waste at 40 CFR 261.2 excludes from the definition of solid 
waste secondary materials that are used directly (i.e., without 
reclamation) as ingredients in manufacturing processes to make new 
products, used directly as effective substitutes for commercial 
products, or returned directly to the original process from which they 
are generated as a substitute for raw material feedstock. (See 40 CFR 
261.2(e).) As discussed in the January 4, 1985, rulemaking that 
promulgated this regulatory framework, these are activities which, as a 
general matter, resemble ongoing manufacturing operations more than 
conventional waste management and so are more appropriately classified 
as not involving solid wastes. (See 50 FR 637-640).

B. How Does EPA Regulate RCRA Hazardous Wastes?

    If a waste exhibits a hazardous characteristic or is listed as a 
hazardous waste then it is subject to federal requirements under RCRA. 
These regulations affect persons who generate, transport, treat, store 
or dispose of such waste. Facilities that must meet hazardous waste 
management requirements, including the need to obtain permits to 
operate, commonly are referred to as ``Subtitle C'' facilities. 
Subtitle C is Congress' original statutory designation for that part of 
RCRA that directs EPA to issue regulations for hazardous wastes as may 
be necessary to protect human health or the environment. EPA standards 
and procedural regulations implementing Subtitle C are found generally 
at 40 CFR parts 260 through 272.
    All RCRA hazardous wastes are also hazardous substances under the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA), as defined in section 101(14)(C) of the CERCLA statute. This 
applies to wastes listed in Secs. 261.31 through 261.33, as well as any 
wastes that exhibit a RCRA characteristic. Table 302.4 at 40 CFR 302.4 
lists CERCLA hazardous substances along with their reportable 
quantities (RQs). Anyone spilling or releasing a substance at or above 
the RQ must report the release to the National Response Center, as 
required in CERCLA Section 103. In addition, Section 304 of the 
Emergency Planning and Community Right-to-Know Act (EPCRA) requires 
facilities to report the release of a CERCLA hazardous substance at or 
above its RQ to State and local authorities. Today's rule proposes to 
establish RQs for the newly listed wastes.

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

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

[[Page 10066]]

D. Overview of the Hazardous Waste Listing Determination Process for 
Paint Production Wastes

1. Suspension of Previous Listings
    Under the Resource Conservation and Recovery Act (RCRA) of 1976, 
Congress directed EPA to establish a framework for RCRA's Subtitle C 
hazardous waste program. Congress also required EPA to propose and 
write timely rules identifying wastes as hazardous under Subtitle C. 
EPA responded by proposing Subtitle C regulations on December 12, 1978 
(43 FR 58957) which established a framework for the Subtitle C program. 
At the same time, EPA also proposed to list wastes--including four 
paint production waste streams from specific (paint production) sources 
and two paint production waste streams from non-specific (paint 
application) sources--as hazardous. On July 16, 1980, EPA promulgated 
an interim final rule (45 FR 47832) that designated four paint 
production waste streams from specific sources as hazardous waste under 
40 CFR 261.32:
     Solvent cleaning wastes from equipment and tank cleaning 
operations (K078),
     Water/caustic cleaning wastes from equipment and tank 
cleaning operations (K079),
     Wastewater treatment sludge (K081), and
     Emission control dust or sludge (K082).
    Commenters to this rule argued that these listings were overly 
broad. EPA consequently re-examined the data and initial analysis on 
these paint production waste streams and determined that further study 
of these wastes was necessary before a final listing could be 
promulgated. On January 16, 1981, this interim final rule--identifying 
and listing these paint production waste streams as hazardous--was 
temporarily suspended (48 FR 4614).
2. Consent Decree Schedule for This Proposal
    The 1984 Hazardous and Solid Waste Amendments (HSWA) to RCRA 
require EPA to make listing determinations for paint production wastes 
(see RCRA section 3001(e)(2)). In 1989, the Environmental Defense Fund 
(EDF) filed a lawsuit to enforce the statutory deadlines for listing 
decisions in RCRA section 3001(e)(2). (EDF v. Browner, D.D.C. Civ. No. 
89-0598). To resolve most of the issues in the case, EDF and EPA 
entered into a consent decree, which has been amended several times to 
revise deadlines for EPA action. Paragraph 1.d (as amended) of the 
consent decree addresses the paint production industry:

    EPA shall promulgate a final listing determination for paint 
production wastes on or before March 30, 2002. This listing 
determination shall be proposed for public comment on or before 
January 28, 2001. This listing determination shall include the 
following wastes: solvent cleaning wastes (K078), water/caustic 
cleaning wastes (K079), wastewater treatment sludge (K081), and 
emission control dust or sludge (K082) for which listings were 
suspended on January 16, 1981 (46 FR 4614), and off-specification 
production wastes.

    Today's proposal satisfies EPA's duty under paragraph 1.d to 
propose determinations for the specified paint production wastes.

E. Existing Regulations That Apply to This Industry

    RCRA authorizes EPA to evaluate industry waste management practices 
and, if necessary, regulate how wastes are handled to ensure that 
present or potential hazards are not posed to human health and the 
environment. In addition to RCRA, the Clean Water Act (CWA) and Clean 
Air Act (CAA) provide EPA with the statutory authority to evaluate 
industry practices and, if necessary, regulate industry releases of 
pollutants to environmental media such as water and air.
    Currently, there are no regulatory requirements under RCRA that 
specifically--identify paint production waste streams as listed 
hazardous waste. Paint production waste streams may, however, carry 
hazardous waste listing and/or characteristic codes if they are 
generated from the use of certain common organic solvents (spent 
solvent wastes F001 through F005) or if they exhibit a hazardous waste 
characteristic (ignitability--D001, corrosivity--D002, reactivity--
D003, toxicity--D004--D043). EPA is not soliciting comment on these 
existing hazardous waste listings and does not intend to respond to 
such comments if received. As well, paint production wastes subject to 
today's proposal remain subject to current hazardous waste listings or 
characteristics that render them hazardous.
    Regulatory requirements under the CWA (40 CFR part 446) specify 
effluent guidelines implemented through national pollutant discharge 
elimination system (NPDES) permits for certain paint production wastes 
that are discharged to navigable waters. These regulations apply to 
paint production wastes that originate from the production of oil-based 
paint where tank cleaning is performed using solvents. In addition, 
manufacturers who discharge wastewaters generated from paint production 
to a publicly owned treatment works (POTW) may be required to comply 
with general pretreatment requirements (40 CFR part 403) as established 
by the POTW. Finally, some paint manufacturers send their wastewaters 
to privately-owned centralized wastewater treatment facilities (CWTs) 
that are operated under NPDES permits. The Agency recently promulgated 
effluent guidelines for these facilities at 40 CFR part 437.
    Under the CAA there are two types of regulatory requirements that 
may apply specifically to paint production wastes: National volatile 
organic compound (VOC) emission standards and national emission 
standards for hazardous air pollutants (NESHAP). VOC emission 
standards--which aim to reduce VOC emissions and in turn reduce ozone 
levels--exist for architectural coatings (40 CFR part 59, subpart D; 63 
FR 48848, September 11, 1998) and automobile refinish coatings (40 CFR 
part 59, subpart B; 63 FR 48806, September 11, 1998). These standards 
specify VOC levels for categories of architectural and automobile 
refinish coatings.
    Subpart DD in 40 CFR part 63, sets NESHAPs from off-site waste and 
recovery operations (OSWRO). These standards, in part, limit air 
releases from off-site wastewater treatment facilities (CWTs) (July 1, 
1996, 61 FR 34140). Furthermore, EPA is planning to propose a MACT 
(Maximum Achievable Control Technology) standard for paint 
manufacturers (Miscellaneous Organic Chemical and Coatings 
Manufacturing) that would regulate hazardous air pollutant (HAP) 
emissions from process vents, storage tanks, transfer operations, 
equipment leaks, and wastewaters.\1\ This would apply to wastewaters 
managed on-site and also if sent off-site for treatment.
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    \1\ These regulations would apply to coatings manufacturing 
facilities that are a major source and use, produce, or make a HAP. 
A major source of a HAP is located within a contiguous area and 
under common control and has the potential to emit greater than 9.1 
Mg/yr (25 tons/yr) of any combination of HAP or 10 tons/yr of a 
single HAP.
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F. What Industries and Wastes Are Covered in This Proposed Rule?

1. Scope of Consent Decree
    Today's proposed rule applies to paint and coatings manufacturers 
generally categorized under subcodes 28511, 28512, and 28513 of 
Standard Industrial Code (SIC) 2851, or North American Industry 
Classification System (NAICS) 325510 (subcodes -1, -4, and -7). This 
includes, but is not limited to, entities who manufacture:

[[Page 10067]]

paints (including undercoats, primers, finishes, sealers, enamels, 
refinish paints, and tinting bases), stains, varnishes (including 
lacquers), product finishes for original equipment manufacturing and 
industrial application, and coatings (including special purpose 
coatings and powder coatings). Products produced by this industry that 
are included within the scope of this proposed rule are referred to as 
``paints'' and/or ``coatings.''
    Today's proposal does not apply to miscellaneous allied products 
(paint and varnish removers, thinners for lacquers and other solvent-
based paint products, pigment dispersions or putty) included under SIC 
subcode 28515 (NAICS 325510A) or artist paint, which is classified 
under SIC 3952 (NAICS 339942).
    The waste streams included within the scope of today's proposal are 
the following paint production wastes generated by paint manufacturers: 
(1) Solvent cleaning wastes as waste liquids and solids generated from 
equipment and tank cleaning operations; (2) water and/or caustic 
cleaning wastes as waste liquids and solids generated from equipment 
and tank cleaning operations; (3) wastewater treatment sludge as waste 
solids generated in on-site or captive wastewater treatment processes 
solely or primarily for treating paint production waste liquids; (4) 
emission control dust or sludge as waste solids collected in a 
facility's particulate emission control devices such as baghouses; and 
(5) off-specification production wastes as waste solids.
    EPA bases many of its decisions as to the scope of the industries 
and wastes covered in this proposal on the EDF v. Browner consent 
decree. Paragraph 1.d of the consent decree states:

    Paint production wastes--EPA shall promulgate a final listing 
determination for paint production wastes on or before March 30, 
2002. This listing determination shall be proposed for comment on or 
before January 28, 2001. This listing determination shall include 
the following wastes: solvent cleaning wastes (K078), water/caustic 
cleaning wastes (K079), wastewater treatment sludge (K081), and 
emission control dust or sludge (K082) for which listings were 
suspended on January 16, 1981 (46 FR 4614), and off-specification 
production wastes. (Emphasis added)

    For solvent cleaning wastes, water/caustic cleaning wastes, 
wastewater treatment sludge and emission control sludge or dust, we 
believe that the decree requires us to address only those industries 
and wastes included in the paint production wastes listing that the 
Agency suspended on January 16, 1981. After reviewing the original 
rulemaking record for the suspended interim final rule, we have 
determined that while EPA did initially look at the entire paint and 
coatings SIC classification, which included miscellaneous allied 
products, we ultimately narrowed the scope of the suspended paint 
listings to exclude this category. Therefore, manufacturers of allied 
products and allied products production wastes are not covered by the 
decree. Moreover, nothing in the 1980 rulemaking record suggests that 
artist materials were considered in this earlier listing development 
work. Therefore, EPA does not interpret the decree to require 
assessment of solvent cleaning wastes, water/caustic cleaning wastes, 
wastewater treatment sludge, and emission control sludge or dust from 
the production of artist paint. (For more information on how EPA 
determined the scope of the suspended paint listings, refer to the 
accompanying Listing Background Document.)
    Concerning ``off-specification production waste,'' we believe that 
the most straightforward reading of the consent decree is that this 
waste stream, although not part of the suspended listings, has the same 
scope as the other enumerated waste streams. In other words, the decree 
does not require us to address off-specification allied products and 
artist paints. Nothing in the decree suggests that either party 
intended the off-specification production waste stream to apply more 
narrowly or more broadly than the other waste streams. Thus, EPA has 
assessed only off-specification paint production wastes from subcodes 
28511, 28512, and 28513 of Standard Industrial Code (SIC) 2851.
    EPA, however, interprets the decree to exclude off-specification 
paint products that have been shipped out to retailers or paint users. 
EPA believes that these downstream entities do not engage in paint 
production. Consequently, EPA has not evaluated off-specification paint 
which a downstream entity decides to discard or send back to the 
manufacturer. Moreover, as explained below, EPA thinks that downstream 
entities can presume that unused paint products returned to a paint 
production facility will be legitimately reused and, thus, will not be 
solid wastes, even if they exhibit a hazardous waste characteristic.
2. Scope of Listing: Off-Specification Products
    EPA is proposing to include within the category of off-
specification paints all products which a paint manufacturer decides 
not to use--whether or not the paint product meets applicable product 
specifications. Not all of these unused products literally fail to meet 
product specifications; paint producers cite a variety of reasons for 
deciding not to sell them as originally intended. EPA believes that any 
unused products, whatever the reason they are unused, could present 
similar risks. Moreover, facilities would find it cumbersome to 
distinguish between off-specification products and other unused 
products.
    EPA is proposing not to go beyond the scope of the consent decree 
to include within the listing off-specification paint products which 
retailers or users decide to discard or return to manufacturers. 
However, EPA is proposing to go beyond consent decree requirements to 
include within the scope of today's proposed listing returned, unused 
products once a manufacturer obtains possession or control of them. EPA 
believes that ``returned'' unused products could pose risks similar to 
those posed by unused products that never go off-site. And, as 
discussed above, facilities would find it cumbersome to distinguish 
between returned products and ``never sent'' products. EPA refers to 
all of these unused products that will not be sold for their original, 
intended use as ``off-specification'' paint products.
3. Recycling Issues
    EPA notes that off-specification paint production wastes can be 
recycled in ways that will not be regulated as hazardous waste 
management. Under current regulations defining ``solid wastes,'' unused 
paint reused as a legitimate ingredient in the manufacture of other 
paint is not considered a ``waste'' and thus will not be subject to the 
hazardous waste regulations. EPA notes that paint manufacturers 
commonly reuse unused products to make new paints. EPA also understands 
that paint formulations are fairly exacting, making it unlikely that a 
manufacturer could successfully rework paint containing significant 
quantities of constituents that are not useful paint ingredients. 
Typically, this type of reuse of a commercial product (when legitimate) 
is not regulated as waste management, even if it involves reclamation. 
See 40 CFR 261.2 \2\ In addition, relatively small quantities are sold 
for ``lower-grade'' uses; these materials are still paint products, and 
no aspect of this activity is regulated under RCRA Subtitle C.
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    \2\ See also: Letter from Sylvia K. Lowrance to Mark Schultz, 
May 16, 1991. This letter says that returned pharmaceutical products 
are not considered solid wastes until a decision is made to discard 
them, because use/reuse is generally a viable option.
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    EPA wants to clarify the effect of today's proposed listing on 
``take-back''

[[Page 10068]]

programs in which retailers or customers return unused paint because it 
does not meet the customer's specifications or because it is unusable 
for some other reason. EPA believes, based on what it knows of the 
industry, that a retailer or customer returning unused paint to a paint 
manufacturer can presume that the paint will be legitimately used as an 
ingredient and that, therefore, the paint being returned is not a 
hazardous waste even if it exhibits a hazardous waste characteristic. 
EPA understands that paint manufacturers will typically take such 
returned paint and use it as a legitimate ingredient in the manufacture 
of another paint product. The retailer or user will be entitled to rely 
on this interpretation exempting returned paint even if the 
manufacturer ultimately decides to discard the unused paint rather than 
reuse it. EPA has previously taken the position that retailers or users 
of pharmaceutical products returning unused products to manufacturers 
are not managing wastes \3\. However, should the paint production 
facility determine it cannot or will not use the returned paint as an 
ingredient, we are proposing that the paint would then become an off-
specification paint product waste that would need to be evaluated 
against the concentrations proposed in today's rulemaking, as well as 
the hazardous waste characteristics.
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    \3\ Letter from David Bussard to N.G. Kraul, February 23, 1993. 
This letter says that off-specification paint is a non-listed 
commercial product and not a solid waste when reclaimed.
---------------------------------------------------------------------------

G. Description of The Paint and Coatings Industry

    Paint and coatings manufacturers are concentrated near large 
metropolitan areas, with the majority of facilities located on the East 
Coast, and in California, Texas and the Midwest. We estimate that there 
are 972 paint and coatings manufacturing facilities operated in the 
United States by about 780 different companies (a few larger companies 
operate several facilities). For more information on how we estimated 
this universe, refer to Section II.H. Of this universe, we estimate 
that about 95 percent of all these companies meet the Small Business 
Administration definition of a small business (total company employment 
of fewer than 500 people, at the parent level, if a company is a 
subsidiary). We estimate that around 600 facilities are generating 
wastes that fall within the scope of this rulemaking.
    The paint and coatings industry is classified by the type of paint 
product manufactured. Products are categorized into three main groups 
according to end use by the SIC classification as architectural 
coatings, original equipment manufacturing (OEM) product finishes, and 
special purpose coatings. Architectural coatings, also referred to as 
trade sales paints, include exterior and interior house paints, stains, 
varnishes, undercoats, primers, and sealers. OEM product finishes are 
custom formulated for application to products during the manufacturing 
process. This includes coatings applied to automobiles, appliances, 
machinery and equipment, toys and sporting goods, wood furniture and 
fixtures, coil coatings, electrical insulation, factory-finished wood, 
metal containers, paper, film and foil, and non-automotive 
transportation. Special purpose paints are formulated for specific 
applications or extreme environmental conditions (fumes, chemicals, and 
temperature) and include: high-performance maintenance coatings (used 
in refineries, public utilities, bridges, etc.); automotive 
refinishing; highway traffic markings; aerosol paints; and marine 
coatings.
    Paint Production. Paints and coatings are formulated to protect and 
decorate surfaces as well as enhance desired surface properties such as 
electrical conductivity and corrosion protection. Inorganic and organic 
chemicals comprise raw materials--solvents, resins (or ``binders''), 
pigments, and additives--that are mixed in a batch process to make 
solvent or water-based paint according to desired end-use 
specifications. Batches of paint, which may range in size from 10 to 
10,000 gallons, are blended in stationary and portable equipment such 
as mixers, blenders, sand mills, and tanks.
    Paint Production Waste Generation and Management. Process equipment 
is cleaned regularly to avoid product contamination and to restore 
operational efficiency. The equipment is also cleaned during 
manufacturing shut downs and when a significant change in a production 
line occurs. Because paint is a mixture of chemicals that does not 
involve chemical reactions, the make-up of paint production wastes 
reflects chemicals used in batch production and any ancillary chemicals 
such as those used in cleaning process equipment. Depending on the type 
of paint manufactured, process equipment may be cleaned with either 
solvent, water, or aqueous caustic washes. These liquid cleaning wastes 
consist of paint solids and sludges which may contain pigments, 
partially or completely cured resins, and additives. Solvent cleaning 
wastes, as well as water and/or caustic cleaning wastes are defined by 
the type of cleaning reagent used, not by the material that is being 
removed through the cleaning process. For example, you can generate a 
solvent cleaning waste if you clean a wastewater tank with a solvent 
(or blend of solvent).
    Paint manufacturing facilities may also generate waste solids and 
liquids included within the scope of this proposed rule when (1) 
emission control systems are emptied, (2) wastewaters are treated and 
(3) off-specification product is discarded. Airborne material is 
generated when dry materials, such as pigments, are loaded into 
processing equipment. Air hoods and exhaust fans help control the level 
of airborne particulate material released into the paint production 
areas. Material is collected in emission control systems such as 
baghouses. Pigments comprise a large fraction of the dry materials 
collected in emission control systems. Other raw materials, including 
additives (such as fillers) and solvents, may also be collected in 
emission control systems.
    Water-based wastewaters are primarily generated when process 
equipment is cleaned. Additional sources include floor washdown and 
spill cleanup. The most common treatment for these wastewaters is 
physical-chemical. This usually involves chemical addition and gravity 
settling of suspended solids which generates a liquid and sludge.
    As discussed above in Section II.F, ``off-specification'' paint 
products subject to this listing determination include any unused paint 
products which a paint manufacturer decides to handle in a way that is 
regulated as waste management. A paint may be considered off-
specification for a variety of reasons. For example, it may not meet 
the original design specifications; it may be replaced by a new 
superior production; or, the product's shelf life expires. As discussed 
earlier, off-specification paint products may be reworked into saleable 
materials or discarded. Off-specification product that is discarded by 
a paint manufacturer is subject to this listing.
    Paint manufacturers may generate some or all of these wastes. Waste 
generation is a function, in part, of volume and type of paint 
produced, degree of automation, amount of recycling, and age of 
facility. Treating, handling, and disposing of these wastes are costs 
associated with paint production activities. Paint manufacturers strive 
to reduce and/or eliminate waste produced which in turn reduces overall 
costs and improves profitability and competitiveness.

[[Page 10069]]

H. What Information Did EPA Collect and Use?

    Our primary sources of data to support this proposed listing 
determination are a questionnaire (or ``survey'') of the paint and 
coatings manufacturing industry and existing literature. We conducted a 
survey under authority of RCRA section 3007, 42 U.S.C. 6927.\4\ As part 
of the survey development process, we went on ten site visits to paint 
manufacturing facilities throughout the country.
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    \4\ See Federal Register notices 4 FR 46375 (August 25, 1999) 
and 64 FR 71135 (December 20, 1999) announcing EPA's data collection 
request submitted to the Office of Management and Budget (OMB). A 
copy of the questionnaire is available in the public docket for 
today's proposed rule. This information collection request was 
approved by the OMB, Clearance Number 2050-0168 (expiration date: 
June 30, 2001).
---------------------------------------------------------------------------

    Please note that we did not sample waste streams generated by the 
paint and coatings industry to support this proposed listing 
determination. As discussed earlier, there are about 1000 paint 
manufacturing facilities in the U.S. paint and coatings industry. These 
facilities combine raw materials (chosen from a potential universe of 
several thousand constituents) in batch processes to manufacture 
products that meet market demands for a wide variety of architectural, 
original equipment manufacture and product coatings, and special 
purpose needs. Waste streams generated at a facility (the same or 
different facility) may vary significantly because the type of product 
manufactured, as well as raw materials used, vary significantly. As a 
result, we did not attempt to sample paint production wastes described 
in this proposal because we concluded it would be impractical to 
conduct a data collection effort that would account for the wide 
variety of individual paint products produced and the potential 
variability in the waste characteristics. Gathering sufficient samples 
to evaluate all potential paint production wastes would require a large 
commitment of scarce Agency resources that would have been beyond the 
reasonable scope of this rulemaking. In addition, an advantage of the 
concentration-based listing approach that we have used in this proposal 
is that it does not rely on extensive waste sampling. Instead, we are 
relying on publically available sources of information as well as data 
collected from survey responses to characterize the constituents likely 
to be present and the chemical and physical properties of paint 
manufacturing wastes.
1. Site Visits
    To develop a better understanding of industry practices and as a 
basis for developing the industry survey, the Agency conducted site 
visits at ten paint manufacturing plants located throughout the 
country. When selecting sites, we considered: plant production size, 
type of manufacturing process, Toxic Release Inventory (or ``TRI'') 
waste release information, and plant location. The information we 
obtained from these visits (other than that for which a Confidential 
Business Information (CBI) claim has been made and sustained) is 
available for public review in the docket for this rulemaking. (For 
more information about CBI protection, please refer to 40 CFR part 2 
subpart B.)
    In particular, we collected information on: (1) Types of production 
and volume, (2) waste management units used, (3) how each residual was 
managed (as hazardous or not), (4) evidence of off-spec product storage 
and tracking system, (5) volume of each residual generated and form and 
how each is stored on-site, (6) management practices for each residual 
for both on-site and off-site (POTWs, tanks), (7) types of constituents 
used at plant, (8) reuse of solvent/washwater (e.g., washwater used as 
ingredient in next batch), (9) pollution prevention and waste 
minimization practices, (10) presence or absence of solvent recovery 
stills on-site, (11) presence or absence of any closed loop recycling 
practices, (12) any appearance of unsafe operating practices or 
disposal practices by facility, and (13) housekeeping practices on 
plant floor relative to waste generation and management.
    We used information collected at these on-site visits combined with 
additional information provided by industry representatives to develop 
a RCRA 3007 survey. For example, we were able to include more 
appropriate questions on waste management practices and to distinguish 
wastes that are recycled more clearly. This survey requests information 
on waste generation and management practices.
2. Database of Paint Manufacturing Information From Published Sources
    We also created an electronic Database of Paint Manufacturing 
Information from Published Sources that is available in the docket. The 
database consists of three modules. The Raw Materials Module contains 
information on different categories of raw materials that are combined 
to make paints. The Paint Formulations Module contains information on 
the concentrations of different raw materials in selected paint 
formulations. The Bibliography of Documents Module lists the published 
reference materials which were used as sources for other modules in the 
database. These sources include technical texts, journal articles, EPA 
and other government studies, and publications from paint industry 
trade organizations.
3. The RCRA Section 3007 Survey
    a. Overview. The purpose of the survey was to gather information 
about nonhazardous and hazardous waste generation and management 
practices in the U.S. paint and coatings manufacturing industry. 
Specifically, we requested information on the five waste streams of 
concern (as outlined in the Consent Decree obligations, See Section 
II.D.2), waste characteristics, and waste management practices.
    In addition to determining the content of the survey, we also 
evaluated whether it was necessary to conduct a census of the industry 
in order to accurately depict this industry's current waste generation 
and management practices. Due to the size of the paint manufacturing 
industry, and in consideration of our time and resource constraints, we 
could not conduct a full census of all the facilities in the industry. 
Therefore, we surveyed a sample of the universe rather than conduct a 
full census. Random sampling is a widely used statistical approach to 
collecting representative data from a large population. To ensure that 
this survey would provide the best overall coverage for various 
industry subsets and identify all significant waste management 
practices throughout the industry, we used accepted statistical 
sampling methods to achieve a 90% probability or confidence level that 
our survey would find a waste management activity utilized by at least 
one in 20 paint manufacturing facilities within the various categories 
of generators we identified via our literature search (discussed 
below). In other words, we determined a sample size such that it would 
be large enough to ensure a high certainty (90% likelihood) of 
identifying any waste management practices with more than 5% chance of 
occurrence. Using a statistical stratified random-sampling scheme \5\ 
designed to represent

[[Page 10070]]

paint production types, sales volumes and TRI reporting status, we 
selected sufficient paint manufacturing facilities from an industry 
database developed by Dun & Bradstreet, a company of The Dun & 
Bradstreet Corporation, 2000. We believe this sampling survey 
adequately covered the industry while reducing the burden imposed by 
the survey on the industry and reducing the time and money spent by the 
government in performing the survey.
---------------------------------------------------------------------------

    \5\ Stratified random sampling is a statistical procedure that 
first dividends the sampling population into subpopulations or 
strata with respect to several characteristics such that within the 
individual strata there is as much homogeneity as possible, and then 
selects samples randomly from the individual strata. This procedure 
improves generalizations about the whole population and, if properly 
executed, generally leads to a higher degree edition, Prentice-Hall, 
Inc., 1967.
---------------------------------------------------------------------------

    Prior to finalizing the questionnaire, we conducted a pilot test by 
sending the questionnaire to three paint manufacturing facilities which 
were not included in the survey and modified the questionnaire based on 
their comments. Further, in order to assist the surveyed facilities in 
understanding and responding to the questionnaire, we established toll-
free telephone and e-mail help lines, returned and answered their calls 
or messages expeditiously, and even helped some complete the 
questionnaire over the telephone. Note that, under RCRA section 3007, 
the surveyed facilities are required to provide accurate information 
and certify under penalty of law. However, to ensure accuracy and 
completeness, we conducted a quality assurance review of the 
information and data provided in the questionnaire responses, such as 
identifying data entry errors, missing data, and internal 
inconsistencies between answers. The review of each facility's response 
resulted in follow-up telephone calls and/or letters to some facilities 
seeking clarifications, corrections, and additional/missing data where 
needed. We entered data from the questionnaire responses into a 
database known as the Paint Residual Master Database, and conducted 
additional quality assurance reviews on the database. Hard copies of 
the questionnaire responses and a CD-ROM copy of the response database 
are available in the public docket for review.
    We compiled and analyzed these data to develop a general assessment 
of the paint industry's waste generation and management practices. We 
also used these data for our risk assessment, economic analysis of the 
potential impacts of hazardous waste regulation, and Land Disposal 
Restrictions (LDR) and treatment and management capacity analyses.
    b. Structuring The Survey to Capture All The Wastes of Concern. As 
indicated previously, the consent decree obligations require the Agency 
to make hazardous waste listing determinations on five types of paint 
production wastes. In the questionnaire, we classified these five waste 
streams into 20 specific residuals for more detailed waste 
characterization. These 20 residuals, including ten hazardous and ten 
nonhazardous under current Federal regulations, encompass liquid 
residual from solvent cleaning, sludge residual from solvent cleaning, 
liquid residual from wash water, sludge residual from wash water, 
liquid residual from caustic wash water, sludge residual from caustic 
wash water, sludges from wastewater treatment, emission control dust, 
emission control sludge, and off-specification product. As discussed 
later in Sections III and IV, we eventually used the detailed waste 
characterization information from the survey to divide the paint 
production waste streams of concern into waste solids and waste liquids 
for today's proposed listing.
    c. Identifying The Universe of Paint Manufacturing Facilities. 
Initially, using a variety of industrial and business data sources 
described in the listing background document, we estimated that there 
are approximately one thousand paint manufacturing facilities of 
interest in the United States. We found no single, comprehensive 
listing of all paint manufacturing facilities. However, we identified 
the 1998-99 Dun & Bradstreet database as the data source that would 
provide the most thorough listing of paint manufacturers in the United 
States that was available in electronic format. We used the Dun & 
Bradstreet database to develop a sampling population and to stratify 
the sampling population into categories based on paint types and sales 
volumes. We also looked at the American Business Directories List of 
paint and allied product manufacturers and the 1999 Paint Red Book 
published by Cygnus Publishing, but found that they were less suitable 
to our needs for sampling stratification purposes. We found that there 
was insufficient information in the latter two databases for us to 
distinguish the types of paint production by facilities and whether 
some facilities were clearly out of scope and classify them into our 
desired paint production categories (architectural, OEM, etc.). The Dun 
& Bradstreet database includes a well defined and easily understandable 
breakdown of the various paint manufacturing types we used to classify 
them into OEM and architectural related paint categories, and eliminate 
those apparently of no interest to this listing determination. 
Specifically, each entry in the Dun & Bradstreet database is identified 
by an 8-digit code, with the first four being the same as SIC's and the 
next four proprietary to Dun & Bradstreet that represent the 
classifications of the facilities. The coding system used in the Dun & 
Bradstreet database provided the level of detail necessary to more 
accurately divide the paint industry into the necessary strata for our 
use.
    d. Constructing a Stratified Random Sample. We stratified paint 
manufacturing facilities into various categories for this sampling 
survey because we expected we might find differences in waste 
generation and management practices among various types of paint 
producers (architectural, OEM, etc.) and by sampling the various 
categories we would be more likely to identify the full range of 
management practices. We also believed that larger facilities (with 
higher sales volumes) conduct more waste management activities, and 
smaller facilities (with lower sales volumes) tend to have more 
recycling or reuse efforts in order to compete in business. 
Furthermore, manufacturing facilities subject to the Toxic Release 
Inventory (TRI) \6\ reporting are required to report annual releases of 
toxic chemicals to waste management units and environmental media. As 
such, we were particularly interested in SIC 2851 paint manufacturers 
that are listed under TRI because they would also likely provide more 
information on waste constituents and management practices of concern 
to this listing determination. Therefore, we stratified the facilities 
based on three categorization criteria: Paint types, sales volumes, and 
TRI status, as elaborated below.
---------------------------------------------------------------------------

    \6\ The Toxic Release Inventory (TRI) of routine and accidental 
releases of toxic chemicals to the environment reported by 
manufacturing facilities, established per Section 313 of the 
Emergency Planning and Community Right-to-Know Act of 1986. 
Facilities conducting the specified manufacturing operations are 
required to report on releases of certain toxic chemicals into the 
air, water, and land provided certain conditions (having ten or more 
full-time employees, and manufacturing or processes over 25,000 
pounds of the designated chemicals, etc.) are met.
---------------------------------------------------------------------------

    In the Dun & Bradstreet database, we found a total of 1,764 
facility entries identified under SIC 2851. We removed those entries 
that are either apparent non-paint manufacturers, or entries we 
determined that are outside of the scope of this listing determination, 
or entries we found impossible to identify for stratification purposes. 
In the end, we adopted the remaining 884 facilities as the sampling 
population for this survey.
    Next, we stratified the 884 potential paint manufacturing 
facilities into 12 categories, based on the three categorization 
criteria discussed above: paint types; sales volumes (less than

[[Page 10071]]

five million dollars, five to twenty million dollars, and greater than 
twenty million dollars, based on the Census Bureau's figures); and TRI 
status (whether the facility reported under TRI in 1997). These 12 
categories comprise large, medium, and small facilities of the 
following combinations: Architectural-related production and on the TRI 
list; OEM-related production and on the TRI list; architectural-related 
production and not on the TRI list; OEM-related production and not on 
the TRI list. Also note that three categories contained no facilities: 
medium architectural-related paint production and on the TRI list, 
large OEM-related paint production and on the TRI list, and medium OEM-
related paint production and on the TRI list.
    To select a sample from the 884 sampling population for 
distributing the questionnaire, we developed a stratified, statistical 
random-sampling scheme based on the above stratification process and 
using the hypergeometric probability formula described in Steel and 
Torrie,\7\ such that the sample size would represent a 90% probability 
of capturing a waste management practice conducted by at least one in 
20 facilities (discussed above). Under these criteria, higher 
percentages of facilities were selected in the medium and large 
facility categories. All selected facilities were then randomly chosen 
within the various categories to avoid bias when sending questionnaires 
to the surveyed facilities. This sampling approach reduced the 
probability of including known non-paint manufacturers or manufacturers 
not of interest to this rulemaking in the survey, and increased the 
chance of capturing sufficient waste management activities. Otherwise, 
more of the small facilities would have been surveyed, but large 
manufacturing facilities and TRI generators which would likely provide 
more waste management information could have been left out.
---------------------------------------------------------------------------

    \7\ Steel, Robert G.D. and James H. Torrie, ``Principles and 
Procedures of Statistics: A Biometrical Approach,'' 1980, Second 
Edition, McGraw-Hill, Inc.
---------------------------------------------------------------------------

    We developed a statistical weight for each category of surveyed 
facilities to extrapolate from those facilities we actually surveyed to 
the larger sampling population of 884 facilities. The weight for each 
surveyed facility in a category represents its relationship to the 
total number of facilities in the category. For example, we surveyed 28 
facilities from a category of 34 facilities; 63 facilities from a 
category of 255 facilities; 13 facilities from a category of 99 
facilities, etc. As a consequence, each of the 28 facilities sampled 
from the category of 34 facilities represents 1.2143 facilities (34 
 28 = 1.2143); each of the 63 facilities sampled from the 
category of 255 represents 4.0476 facilities (255  63 = 
4.0476); and each of the 13 facilities sampled from the category of 99 
represents 7.6154 facilities (99  13 = 7.6154), etc. These 
numbers (1.2143, 4.0476, 7.6154, etc.) are the statistical weighting 
values (or weights) to be applied to each facility in each of the 12 
categories for analysis of the collected data (such as waste 
quantities). For a detailed description of our statistical methodology 
and stratification process, see ``Supporting Statement--Information 
Collection Request for Paint Manufacturing Industry Waste Survey, Part 
B'' which was submitted to the OMB as part of the ICR for review and 
approval, and the listing background document available in the public 
docket for this proposed rule.
    e. Conducting The Survey and Analyzing The Results. Using this 
stratified random-sampling scheme, we distributed the questionnaires in 
February and March of 2000 to a total of 299 facilities out of the 
sampling population of 884 from the Dun & Bradstreet database that we 
identified as the potentially impacted paint manufacturing facilities 
in the United States.
    Of the 299 questionnaires we distributed, 292 facilities responded 
to the questionnaires. We found that in 1998, 187 of the survey 
respondents manufactured paint products of interest to this listing 
determination. Thirty six of these 187 facilities identified themselves 
as paint manufacturers, but in 1998 did not generate or dispose of any 
of the waste residuals within the scope of the questionnaire because 
they recycled or reused all paint residuals as feedstock in their 
manufacturing processes.\8\ The other 151 manufacturing facilities 
generated one or more of the waste residuals of concern. They provided 
information on their waste generation and management practices. Most of 
these 151 manufacturing facilities also reused their waste residuals 
on-site to some extent, either as feedstock in the paint production or 
as an ongoing cleaning solution. The remaining respondents identified 
themselves as either a paint sales agent, a non-paint manufacturer, a 
non-paint manufacturer until after 1998, no longer a paint 
manufacturer, or a paint-related manufacturer not under the scope of 
the questionnaire. Table II.H.-1 provides a summary of the number of 
potential paint manufacturing facilities selected from the Dun & 
Bradstreet database, the number of facilities surveyed, the number of 
facilities responded, and the number of paint manufacturing facilities 
of interest found, in each category of facilities.
---------------------------------------------------------------------------

    \8\ As stated in the questionnaire instructions, facilities were 
not required to report on any of the residuals that are used 
directly without reclamation as ingredients in manufacturing 
processes to make new products; or used directly as effective 
substitutes for commercial products; or returned directly to the 
original process from which they are generated as a substitute for 
raw feed stock. These residuals are excluded from the definition of 
solid waste. See 40 CFR 261.2.

Table II.H.-1.--Summary of The Numbers of Potential Paint Manufacturing Facilities Selected, Surveyed, Responded
                                    and Paint Manufacturing Facilities Found
----------------------------------------------------------------------------------------------------------------
                                                             Number of
                                                              selected    Number of                  Number of
                                                               Dun &       randomly    Number of    within-scope
                     Facility category                       Bradstreet    sampled       survey        paint
                                                             facilities   facilities  respondents  manufacturers
                                                                 in      in category  in category     found in
                                                              category                                category
----------------------------------------------------------------------------------------------------------------
Large, 2851-01, and TRI...................................            2            2            2             2
Medium, 2851-01, and TRI..................................            0            0            0             0
Small, 2851-01, and TRI...................................            6            6            6             6
Large, 2851-01, and non-TRI...............................           34           28           28            17
Medium, 2851-01, and non-TRI..............................           62           48           47            42
Small, 2851-01, and non-TRI...............................          379           77           75            44
Large, 2851-02, and TRI...................................            0            0            0             0
Medium, 2851-02, and TRI..................................            0            0            0             0

[[Page 10072]]

 
Small, 2851-02, and TRI...................................            7            7            7             7
Large, 2851-02, and non-TRI...............................           23           22           22            14
Medium, 2851-02, and non-TRI..............................           47           34           34            24
Small, 2851-02, and non-TRI...............................          324           75           71            31
                                                           -----------------------------------------------------
    Total number of facilities............................          884          299          292           187
----------------------------------------------------------------------------------------------------------------

    We believe the Dun & Bradstreet database properly represents the 
paint manufacturing universe (notwithstanding the database inevitably 
includes some out-of-scope operations also listed under SIC 2851). We 
used sound, widely accepted statistical methods to construct our 
stratified random-sample covering the variety of paint manufacturing 
types, paint production wastes, and waste management practices of 
interest to this listing determination. Therefore, we believe the 
survey results are representative of the paint manufacturing facilities 
in the sampling population as well as the universe of paint 
manufacturers of interest. Furthermore, based on our sample quality 
review, data analysis, and intensive follow-up with survey respondents, 
we believe that the data collected from the 187 survey respondents are 
valid and reliable. Nevertheless, we specifically request data with 
which to evaluate our assumption that the Dun & Bradstreet database 
properly represents the paint manufacturing universe, as well as 
comments on our approach to sampling and extrapolation of sampling 
results.
    We used survey data in three forms: (1) Direct survey responses 
representing only the surveyed population; (2) weighted data to 
extrapolate to the sampling population; and (3) data extrapolated to 
the universe of paint manufacturing.
    We used survey responses directly when data extrapolation to the 
sampling population or the paint universe would not be necessary, such 
as the patterns of waste management practices (see Section III.D).
    As previously discussed, we derived independent weighting values 
corresponding to the number of facilities represented by each surveyed 
facility in each category. If the total quantities of a certain 
residual generated by Category X facilities with a weight of 3.629 were 
2,000 tons and by Category Y facilities with a weight of 8.8571 were 
1,000 tons, and if facilities in the other categories did not report 
any, then the combined residual quantities generated by the entire 
sampling population of 884 can be calculated as 2,000 tons  x  3.629 + 
1,000 tons  x  8.8571 = 16,115 tons. We used weighted waste quantities 
or volumes to represent the waste volumes sent from each facility in 
the sampling population to a particular management practice for input 
to our national risk modeling analysis. See discussions in Sections 
III.D and E.
    Overall, 64% (i.e., 187  292) of the 292 respondents are 
paint manufacturing facilities of interest to this rulemaking. 
Proportionally, there should be 566 paint manufacturing facilities in 
the sampling population of 884 (from the Dun & Bradstreet database). As 
explained earlier, because there is no comprehensive, single listing of 
all paint manufacturing facilities, we relied on a number of data 
sources to estimate that there are 972 paint manufacturers. This 
estimate of 972 paint manufacturers in the universe was derived from 
the total number of paint manufacturing facilities of interest (187) 
found from the survey, by extrapolating through the percentages of SIC 
2851 facilities in the Dun & Bradstreet database that are represented 
by the 187 facilities. For a more detailed analysis, see the listing 
background document in the public docket for this proposed rule.
    To estimate the total waste generation by the entire population of 
U.S. paint manufacturers (or universe), weighted data from the survey 
(representing the quantities generated by the 566 paint manufacturing 
facilities in the sampling population, as described above) is 
extrapolated using a multiplier of 1.7173 (= 972  566). For 
example, if the total quantities of a certain residual generated by the 
566 paint manufacturing facilities in the sampling population were 
calculated as 16,115 tons, the universe waste quantities of this 
residual would become 16,115 tons  x  1.7173 = 27,674 tons. We used 
such extrapolated universe waste quantities for our waste treatment and 
management capacity analysis (see Section VI.E) and economic impacts 
analysis (see Section IX.E). In general, these extrapolated figures 
appear consistent with data in the Biennial Report System (see the 
Economic Assessment in the docket for today's proposed rule).
    f. Meeting Our Objectives for The Survey. We believe our 
statistical stratified random-sampling survey collected data are 
representative of the paint manufacturing industry in the United 
States, and that the responses provided sufficient data for our use in 
making this listing determination. We realize that uncertainties exist 
in our survey. There is uncertainty in the exact number of the U.S. 
paint manufacturing facilities. In addition, despite our quality 
assurance reviews, there could still be data source or sampling errors 
as in any other sampling or even census surveys. For instance, some 
facilities might have entered inaccurate information inadvertently. 
Nevertheless, we have used our best efforts to collect representative 
data. By employing a statistically representative stratification/
categorization approach aimed at surveying all types of manufacturing 
facilities and their waste streams, our unequal sampling survey (higher 
percentages of facilities were surveyed for some categories of large 
and medium facilities) actually enhanced the chance of identifying the 
rare waste management activities practiced by the paint manufacturing 
industry and in turn increased survey precision. This approach is 
reasonable and an acceptable statistical tool to ensure the best 
possible coverage.
    Our subsequent statistical re-analysis of the questionnaire returns 
indicated that we achieved satisfactory statistical probabilities for 
finding a waste management activity used by one in 20 facilities. The 
final probabilities

[[Page 10073]]

achieved are discussed in the listing background document in the public 
docket for this proposed rule. In short, the probabilities achieved for 
two categories of paint manufacturing facilities, 85% and 86.2%, were 
under 90%, while the probabilities achieved for the other categories 
ranged from 91.7% to 100%. More importantly, the survey successfully 
captured a wide variety of intermediate and final waste management 
practices of most interest as discussed in Section III.D. Therefore, we 
believe we have made a reasonable effort to identify all management 
practices and that we have met the objective of our sampling survey 
designed for this listing determination.

III. Approach Used in This Proposed Listing

A. Summary of Today's Action

    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 
the recently developed ``concentration-based'' approach for listing 
paint manufacturing wastes. This approach was originally proposed for 
wastes generated by the Dyes and Pigments industry (64 FR 40192 of July 
23, 1999). 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 toxicity characteristic to 
define a hazardous waste based on concentration levels of key 
constituents in the wastes. We describe this concept in detail later in 
this notice.
    We are proposing two hazardous waste listings for paint 
manufacturing waste solids, K179 and for liquids, K180. If you generate 
paint manufacturing wastes from tank and equipment cleaning operations 
that use solvents, water, and/or caustic; emission control dusts; 
wastewater treatment sludges; or off-specification product, as 
specified in each listing description, you would need to determine 
whether your waste contains any of the constituents of concern 
identified for each listing at a concentration equal to or greater than 
the hazardous concentration level set for that constituent. However, 
the liquid K180 is a contingent listing. If your waste liquids are 
managed exclusively in tanks or containers prior to discharge to a POTW 
or under an NPDES permit, your waste would not be subject to the 
listing, and you would not need to make a hazardous waste determination 
for those wastes. We believe that under this proposed contingent 
listing approach, the vast majority of waste liquids would not pose 
unacceptable risks and would not be subject to the listing. The 
approach is discussed in detail in Section IV. The proposed listing 
descriptions are as follows:

     K179--Paint manufacturing waste solids generated by 
paint manufacturing facilities that, at the point of generation, 
contain any of the constituents identified in paragraph (b)(6)(iii) 
of this section at a concentration equal to or greater than the 
hazardous level set for that constituent in paragraph (b)(6)(iii) of 
this section. Paint manufacturing waste solids are: (1) Waste solids 
generated from tank and equipment cleaning operations that use 
solvents, water and/or caustic; (2) emission control dusts or 
sludges; (3) wastewater treatment sludges; and (4) off-specification 
product. Waste solids derived from the management of K180 by paint 
manufacturers would also be subject to this listing. Waste liquids 
derived from the management of K179 by paint manufacturers are not 
covered by this listing, but such liquids are subject to the K180 
listing. For the purposes of this listing, paint manufacturers are 
defined as specified in paragraph (b) of this section.
     K180--Paint manufacturing waste liquids generated by 
paint manufacturing facilities that, at the point of generation, 
contain any of the constituents identified in paragraph (b)(6)(iii) 
of this section at a concentration equal to or greater than the 
hazardous level set for that constituent in paragraph (b)(6)(iii) of 
this section unless the wastes are stored or treated exclusively in 
tanks or containers prior to discharge to a POTW or under a NPDES 
permit. Paint manufacturing liquids are generated from tank and 
equipment cleaning operations that use solvents, water, and/or 
caustic. Waste liquids derived from the management of K179 by paint 
manufacturers would also be subject to this listing. Waste solids 
derived from the management of K180 by paint manufacturers are not 
covered by this listing, but such solids are subject to the K179 
listing. For the purposes of this listing, paint manufacturers are 
defined as specified in paragraph (b) of this section.
    Due to the uncertainties in our assessment of the management of 
paint manufacturing waste liquids in surface impoundments, we are 
seriously considering an alternative proposal not to list paint 
manufacturing waste liquids. We describe this alternative and our 
reasoning for this option later in this notice (see Section IV.D). 
The following discussion describes the approach we are proposing if 
K180 is listed.

    If you generate any of these paint manufacturing wastes that you 
currently believe are characteristically hazardous or subject to 
another hazardous waste listing, you would still need to determine 
whether your waste is a listed hazardous waste under K179 or K180 
(unless as noted above you are not subject to K180 because your wastes 
are managed exclusively in tanks or containers and then discharged to a 
POTW or under an NPDES permit). We are proposing that all generators 
could use knowledge of the waste to make an initial determination as to 
whether any of the regulated constituents are present in the waste. If 
you determine that none of the constituents are present in your wastes 
at the point of generation, then you would have no further obligation 
for determining whether or not your wastes are K179 or K180 listed 
hazardous wastes (assuming the regulated constituents are in fact not 
present in your wastes). If you determine that any of the constituents 
are present in your waste, then we are proposing that you must either 
use a two-tiered approach (see Section V.C for description) to 
determine whether the constituent concentrations in your waste are 
below the concentration levels in the listing or assume that your 
wastes are hazardous at the point of generation. Under the proposed 
two-tiered approach, if your total projected annual generation of paint 
manufacturing waste solids is over 40 metric tons, and/or over 100 
metric tons of paint manufacturing waste liquids, you would need to 
test your wastes annually to determine whether concentration levels are 
below the listing concentrations. If your wastes remained nonhazardous 
for three consecutive years of testing and you have no significant 
changes to your product and/or manufacturing or treatment processes, 
the annual testing requirement would be suspended. If you made 
significant changes to product and/or manufacturing or treatment 
processes, the annual testing requirements would be reinstated. If your 
projected annual waste generation is below these volumes, you would 
have the option of either using knowledge of the waste or testing to 
determine whether constituent concentrations are below the listing 
concentrations. If any constituent is present at or above the 
concentration level, then your waste is hazardous waste. We are 
proposing that generators with annual waste generation exceeding 40 
metric tons of solids and/or 100 metric tons of liquids keep limited 
records on-site.
    If your wastes meet the listing description, they would be subject 
to all applicable RCRA subtitle C hazardous waste requirements, 
including LDR requirements. This means that any characteristically 
hazardous wastes or wastes hazardous under other listing codes (for 
example F codes) that are determined to be hazardous under these 
listings would also be subject to

[[Page 10074]]

treatment requirements for K179 and K180, in addition to any other 
applicable treatment requirements.
    There are several differences in the way the ``derived from'' rule 
(40 CFR 261.3(c)(2)(i) would be applied to these wastes that have one 
or more constituents above the proposed risk-based levels. Residues 
from the treatment of solid K179 wastes are no long hazardous wastes if 
their constituent concentrations are below the concentration levels for 
K179. However, these treatment residues would still be subject to all 
LDR requirements. As explained in Section IV, liquid K180 wastes, 
however remain subject to the derived from rule. Also, the listing 
descriptions make it clear that if a liquid is generated from the 
onsite management of the solid K179 waste, it is no longer subject to 
the K179 listing, rather it is subject to the K180 listing. If a solid 
is generated from the onsite management of the liquid K180 waste, it is 
no longer subject to the K180 listing, rather, it is subject to the 
K179 listing. Once K179 or K180 wastes are sent offsite waste codes do 
not change. These provisions are discussed in Section IV.F.

B. What Is a Concentration-Based Listing?

    A concentration-based listing specifies constituent-specific levels 
in a waste that cause the waste to become a listed hazardous waste. In 
this proposed rule, we identify constituents of concern likely to be 
present in solvent, water, and/or caustic cleaning residuals; 
wastewater treatment sludges; emission control dust or sludges; and 
off-specification products and which may pose a risk above specified 
concentration levels. Using risk assessment tools developed to support 
our hazardous waste identification program, we assessed the potential 
risks associated with the constituents of concern in plausible waste 
management scenarios. From this analysis, we developed ``listing 
concentrations'' for each of the constituents of concern in the waste 
categories listed above.
    If you generate any paint manufacturing waste liquids or solids 
addressed by this proposed rule, including any listed or 
characteristically hazardous wastes, you would be required either to 
determine whether or not your waste is hazardous or assume that it is 
hazardous as generated under today's proposed K179 and K180 listings. 
We are proposing that you must make a determination whether your waste 
is a listed hazardous waste through process knowledge or by determining 
representative concentrations for the constituents of concern in your 
waste through sampling and analyses (depending on the volumes of 
hazardous waste and nonhazardous waste within the scope of this listing 
that you generate each year). You can use process knowledge to 
demonstrate that the constituents of concern are not present in your 
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. 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?

    Thousands of constituents, also referred to as paint raw materials 
or ingredients, are used in paint formulations.\9\ At the same time, 
there are a number of chemicals that are very widely used in many 
different types of paints. Because paints are produced in batch 
processes that generally do not involve chemical reactions among the 
raw materials, the finished paint and wastes consist of a mixture of 
the different raw materials. Paint production wastes can also contain 
constituents used for tank cleaning and other maintenance operations. 
As a result, it is straightforward for a manufacturer to know what 
constituents are likely to be present in his wastes.
---------------------------------------------------------------------------

    \9\ Paint and Coating Raw Materials, 1996. Michael and Irene 
Ash, Synapse Information resources, Gower Publishing Ltd, lists more 
than 11,000 trade names and generic raw materials from 1300 
manufacturers that are available for use in paints.
---------------------------------------------------------------------------

    Taking these facts into account, a concentration-based approach to 
listing paint production wastes as hazardous has a number of 
advantages. We can use the approach to focus more narrowly on 
ingredients that are likely to be widely used in paint formulations and 
that are likely to pose risks to human health and the environment. A 
concentration-based approach allows generators to evaluate the variable 
wastes they generate individually for hazard, so only the truly 
hazardous wastes are listed. This can place less burden on paint 
manufacturers than a traditional listing that brings entire waste 
streams into the hazardous waste system, regardless of the 
characteristics of wastes generated by individual generators. The level 
of any burden reduction depends on the costs of testing and the amount 
and type of wastes generated by a given facility. This approach is 
protective because it relies on concentration levels specifically set 
to protect human health.
    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 
manufacturer has a listed hazardous waste based on constituent-specific 
concentration levels established by EPA, he also knows that if the 
concentration levels are reduced below the regulatory level due to raw 
material substitution or process change, the waste would not be 
regulated as listed hazardous waste. Therefore, the generator may 
decide to substitute raw materials in order to generate a nonhazardous 
waste (assuming that the waste does not carry any other listed or 
characteristic hazardous waste codes). This approach encourages waste 
minimization and reduced use of toxic constituents, goals of both RCRA 
and the Pollution Prevention Act of 1990 (42 U.S.C. 13101 et seq., Pub. 
L. 101-508, November 5, 1990).
    RCRA, section 1003 states that one goal of the statute is to 
promote protection of human health and the environment and to conserve 
valuable material and energy resources by ``minimizing the generation 
of hazardous waste and the land disposal of hazardous waste by 
encouraging process substitution, materials recovery, properly 
conducted recycling, and reuse and treatment.'' Section 1003 further 
provides that it is a national policy of the United States that, 
whenever feasible the generation of hazardous waste is to be reduced or 
eliminated as expeditiously as possible.
    The Pollution Prevention Act of 1990 provides a hierarchy of 
approaches. Pollution should be prevented or reduced; 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. If EPA provides a concentration-based 
target in the listing, generators would have the regulatory and 
economic incentive to meet the reduced levels.
    Alternatively, we could have attempted to collect more information 
on these specific wastes to support the traditional listing approach, 
i.e., without any concentration limits. However, such a data collection 
effort would have been difficult due to the large number of paint 
production facilities, coupled with the wide variety of individual 
paint products and the potential variability in waste characteristics. 
Considering the

[[Page 10075]]

extensive sampling effort that this would require, and the relatively 
small quantities of wastes produced by individual paint facilities, we 
do not feel that such an effort was justified.

D. How Did the Agency Use the Survey Results for This Proposed Listing 
Determination?

    We used the 3007 survey data for several purposes: (1) To provide 
the information for a general assessment of the paint and coating 
industry's waste generation and management practices; (2) to identify 
plausible waste management scenarios that are the basis for our risk 
assessment and listing determination; and (3) to serve as the data 
input for risk modeling parameters such as waste types and amounts sent 
to specific management practices.
    This section primarily addresses the survey results as a basis for 
choosing plausible management scenarios for risk assessment and listing 
determinations and for selecting data for input to our risk modeling 
parameters. In addition, we used the survey data for our land disposal 
restrictions treatment capacity analysis and for our economic impact 
analysis discussed in sections VI and IX.
1. General Assessment of the Paint Industry's Waste Generation and 
Management Practices
    Our first step was to characterize the U.S. paint and coating 
industry's generation and management practices. We considered a series 
of questions, such as: how much waste was generated in 1998; of that 
total, how much was RCRA hazardous waste and nonhazardous waste; what 
types of waste were generated; and how were these wastes managed? Table 
III.D-1 captures the weighted quantities of wastes within the scope of 
this listing reported by facilities completing the 3007 survey. See 
Section II.H for a discussion of the weighting process. With respect to 
total amounts of waste generated our analysis showed the following:

     We extrapolated from our estimated 566 paint and 
coating manufacturers in the sampling population of 884 to estimate 
that there are 972 paint and coating manufacturers, as explained in 
Section II, H(e). Out of these 972, we estimate that about 600 
facilities annually generate about 107,000 metric tons of hazardous 
and nonhazardous waste within the scope of this listing.\10\
---------------------------------------------------------------------------

    \10\ Note that we used weighted waste quantities in our risk 
assessments (explained in Section II.H(e)), because the weighted 
quantities are directly derived from our survey data and we are more 
certain these waste quantities represent the true distribution of 
the sampled population.
---------------------------------------------------------------------------

     About 36 percent of paint manufacturing wastes are 
already RCRA hazardous wastes, while 64 percent are currently 
nonhazardous.
     A few paint manufacturers produce the majority of the 
waste. Ten percent of manufacturers generating waste potentially 
within the scope of this listing generate about 80 percent of the 
total amount of waste; and two percent of the manufacturers generate 
about 50 percent of the total waste. Approximately half of paint 
manufacturers generate less than five metric tons of waste per year.
     Paint manufacturers mainly generate five types of 
nonhazardous waste liquids and waste solids: washwater cleaning 
liquid, washwater cleaning sludge, wastewater treatment sludge, 
emission control dust and off-specification product. As shown in 
Table III.D-2, these five waste types account for over 99% of all 
nonhazardous waste generated in 1998.
     About 27 percent of the manufacturers do not generate 
any waste--all their waste liquids and waste solids are recycled 
back into paint production processes.

    After a thorough review of the data and other general observations 
about the paint industry generation and management practices, we 
focused further analyses only on nonhazardous wastes. We believe that 
this approach is appropriate because hazardous paint manufacturing 
wastes are currently managed according to RCRA Subtitle C regulatory 
controls. From our survey of the industry, we found that about 36% of 
the paint manufacturing wastes were coded and managed as listed or 
characteristically hazardous waste. The listed wastes typically carried 
a code for solvent wastes (F001 through F005), and characteristic 
wastes usually exhibited the characteristic of ignitability or 
toxicity. Based on available data from the survey, we believe that 
listed or characteristically hazardous waste are being properly managed 
under RCRA. The data supplied voluntarily by survey respondents that we 
have on constituent concentrations in wastes classified as nonhazardous 
show that the concentrations of TC constituents are well below the TC 
levels. By narrowing the scope of our analysis to include only 
nonhazardous wastes, we were able to concentrate risk assessment and 
subsequent listing decisions on the wastes that may not already be 
managed in a way that adequately protects or minimizes threats to human 
health and the environment. However, this proposed listing would apply 
to any paint manufacturing waste generated by the paint manufacturers 
from tank and equipment cleaning operations that use solvents, water 
and/or caustic; emission control dust; waste treatment sludges and off-
specification production waste regardless of how the waste has been or 
is currently being managed.

                          Table III.D-1.--Paint Manufacturing Wastes Generated in 1998
----------------------------------------------------------------------------------------------------------------
                                                        Paint manufacturing waste category
                                 -------------------------------------------------------------------------------
    Weighted waste quantities                   Water and/                 Emission
          (metric tons)             Solvent     or caustic   Wastewater    control         Off-
                                    cleaning     cleaning    treatment      dust/     specification     Total
                                     waste        waste        sludge      sludges       product
----------------------------------------------------------------------------------------------------------------
Hazardous.......................        18507         1047            0           39          3029         22622
Nonhazardous....................           39        34098         1490         1972          1948         39547
Hazardous and Nonhazardous......        18546        35145         1490         2011          4977         62169
----------------------------------------------------------------------------------------------------------------


[[Page 10076]]


   Table III.D-2.--Nonhazardous Paint Manufacturing Waste Liquids and
                        Solids Generated in 1998
------------------------------------------------------------------------
                                                               Weighted
                                                                waste
                                                               quantity
                                                               (metric
                                                                tons)
------------------------------------------------------------------------
Nonhazardous Waste Liquids:
  Solvent Cleaning Liquid..................................            4
  Washwater Cleaning Liquid................................       31,036
  Caustic Cleaning Liquid..................................           66
                                                            ------------
    Total Nonhazardous Liquids.............................       31,106
                                                            ============
Nonhazardous Waste Solids:
  Solvent Cleaning Sludge..................................           35
  Washwater Cleaning Sludge................................         2990
  Caustic Cleaning Sludge..................................            6
  Wastewater Treatment Sludge..............................         1490
  Emission Control Dust....................................         1972
  Emission Control Sludge..................................            0
  Off-Specification Product................................         1948
                                                            ------------
    Total Nonhazardous Waste Solids........................         8441
------------------------------------------------------------------------

2. Management Scenarios Currently Used at Paint Facilities and Our 
Selection of Waste Management Scenarios for Risk Assessment Modeling
    This section summarizes our findings and conclusions concerning 
current paint manufacturing practices for nonhazardous waste 
management; the plausible waste management scenarios that we chose to 
model for the risk assessment; and why we did not model certain 
management practices. We also explain how we selected survey data from 
waste types and quantities going to specific management practices for 
risk modeling parameters. This entire section presents weighted survey 
data (See Section II.H(e)), unless otherwise noted. We believe that the 
weighted data that is derived from the responses of the estimated 566 
paint manufacturing facilities most closely represents the distribution 
of actual paint facility waste quantities managed at individual waste 
management units at the 884 facilities in the sampling population, 
which we assume are representative of the universe of affected paint 
manufacturers. Table III.D-2 summarizes non-hazardous waste liquids and 
solids generation.
    We chose to model four waste management scenarios based upon our 
review of the current waste handling practices reported in the survey 
and the plausibility that these scenarios represent actual practices 
that are used or could be used by the paint industry for disposal of 
paint manufacturing wastes. The scenarios that we chose are waste 
solids disposed in industrial nonhazardous waste landfills; waste 
liquids stored and treated in off-site tanks at centralized wastewater 
treatment facilities (CWTs) prior to discharge to a POTW or under a 
NPDES permit; waste liquids disposed in surface impoundments at CWTs; 
and, waste liquids stored and treated in tanks on-site at paint 
manufacturing facilities prior to discharge to a POTW or under a NPDES 
permit. The general criteria for selection of plausible waste 
management scenarios and the rationale for choosing each of these four 
scenarios is described in this section.
    a. Plausible Waste Management Selection Criteria and Modeling 
Considerations. Our regulations at Sec. 261.11(a)(3)(vii) require us to 
consider the risk associated with ``the plausible types of improper 
management to which the waste could be subjected'' because exposures to 
wastes (and therefore the risks involved) will vary by waste management 
practice. The choice of which ``plausible management scenario'' (or 
scenarios) to use in a listing determination depends on a combination 
of factors which are discussed in general terms in our policy statement 
on hazardous waste listing determinations contained in the proposed 
Dyes and Pigments Listing Determination (59 FR 66072, December 22, 
1994). We have applied this policy in several previous listings and, 
with some specific modifications that reflect unique characteristics of 
the paint industry, believe it is appropriate to apply it here.
    Our approach to selecting waste management scenarios to model for 
risk analysis is to examine current industry management practices; 
assess whether or not other practices are available to the industry; 
and to decide what the industry would reasonably be expected to use. 
There are common waste management practices, such as landfilling, which 
we generally presume may be plausible for solid wastes and which we 
will evaluate for potential risk. There are other practices which are 
less common, such as land treatment, where we consider them plausible 
only where the disposal methods have been reported to be practiced. 
Where a practice is actually reported in use, that practice is 
generally considered ``plausible'' and may be considered for potential 
risk. In some situations, potential trends in waste management for a 
specific industry suggest we will need to project ``plausible'' 
management even if it is not currently in use in order to be protective 
of potential changes in management and therefore in potential risk. We 
then evaluate which of these current or projected management practices 
for each waste stream are likely to pose significant risk based on an 
assessment of exposure pathways of concern associated with those 
practices.
    To model plausible waste management practices in the paint 
industry, we used the individual waste quantities going from the 
surveyed facilities to a particular type of management unit. This data 
was used in a national risk modeling analysis to capture the range of 
waste quantities from all facilities in the sampling population sent to 
a particular type of waste management unit (the weighted waste quantity 
distribution). Each waste quantity in the weighted distribution has a 
weighting factor that represents the number of facilities in the total 
sampling population that send a particular waste to a particular waste 
management unit. We do not analyze the total quantity of wastes (i.e., 
the total universe waste generation data) going into a single waste 
management unit because this scenario never occurs. As discussed later 
in this section, when we found evidence that multiple waste streams 
from a single facility or wastes from more than one facility are sent 
to the same management unit, we added those quantities to ensure that 
we accurately reflect the individual and combined quantities of paint 
manufacturing wastes that are sent to a single management unit. 
(Section III.D.2(c), below explains the methodology we used to compile 
the survey data for input to the risk assessment models.)
    EPA estimates that in 1998, the 884 facilities in the sampling 
population generated 8,441 metric tons of nonhazardous waste solids and 
31,106 metric tons of nonhazardous waste liquids. As would be expected, 
wastes generated from paint production batches are also generated in 
batches rather than in a continuous stream. Generally, the waste 
quantities associated with each batch are relatively small, so that 
these smaller quantities are aggregated and added into containers or 
tanks as each new batch is produced. Liquid wastes are added into 
liquid wastes and solid wastes are added into solid wastes, so that a 
variety of waste types (for example sludges from tank cleaning 
operations and wastewater treatment) may be combined and sent off to 
one waste management unit. At the same time, some waste types are 
managed separately, if for example they have some value for fuel 
blending, rather than simply being sent off to land disposal or 
wastewater treatment and discharge. We were able to distinguish

[[Page 10077]]

these management practices from the survey data.
    One final note, before looking at solid and liquid wastes 
separately. The total waste quantities that are accounted for in all of 
the management practices that we discuss are not equivalent to the 
total waste generation quantities. We believe there are several reasons 
for this. First, because of the way the survey was structured, we were 
not able to obtain an absolute balanced accounting of waste generation 
and waste management from each facility. Some of the discrepancy 
reflects waste management situations that may span one year to the 
next, e.g., when a facility accumulates waste over a longer time period 
before sending it on to disposal. Second, some wastes (or residuals) 
may be accumulated for a time, and then recycled back into the 
manufacturing process instead of being disposed. Third, there may be 
some undetected reporting errors in the database. In any event, the 
discrepancy between waste quantities generated in 1998 and waste 
quantities disposed in 1998 is not significant for risk assessment 
purposes. In the risk assessment, we use a distribution of individual 
waste quantities actually sent to management scenarios as input to the 
model, not national total waste quantities. The distribution of 
individual waste quantities would not be significantly affected by the 
discrepancy between wastes volumes generated and waste volumes 
disposed.
    Before we proceed to the technical discussion of our rationale for 
choosing certain modeling scenarios and parameters, we will briefly 
explain why we chose to structure these discussions as they are 
presented in this preamble. We estimate that the 884 facilities in the 
sampling population disposed of 44,278 metric tons of nonhazardous 
waste solids and waste liquids in 1998 as shown in Tables III.D-3 and 
III.D-4. These tables show that the disposal destinations, as would be 
expected, are different for the waste solids and the waste liquids. The 
same four waste solids that comprised the majority of the nonhazardous 
waste solids generated in 1998 have very similar waste management 
patterns. In contrast, the largest quantity of waste liquid generated 
in 1998, washwater cleaning liquid is managed differently from the 
solids and almost entirely through discharge to off-site public and 
private wastewater treatment facilities. For these reasons, we split 
our analysis of the waste solids and waste liquids. It was clear that 
risk modeling for these two types of wastes would differ, therefore it 
seemed reasonable to analyze the waste management patterns for them 
separately.
    b. Selection of Waste Management Scenarios for Risk Assessment 
Modeling of Nonhazardous Paint Manufacturing Waste Solids. Table III.D-
3 lists the estimated weighted quantities of each type of nonhazardous 
waste solid going to each management practice for the 884 facilities in 
the sampling population. The total amount of waste solids disposed in 
1998 was 8,226 metric tons (weighted). Of these 8,226 metric tons, 
8,152 metric tons is made of the same four waste solids that comprised 
the majority of solid waste generated in 1998: off-specification 
product, emission control dust, washwater cleaning sludge and 
wastewater treatment sludge. We estimate that the major portion of 
these four solid waste streams, 6,926 metric tons, is disposed in 
Subtitle D municipal and industrial landfills (nonhazardous landfills). 
These 6,926 metric tons includes 942 metric tons of off-specification 
product, 1,947 metric tons of the emission control dust, 1,440 metric 
tons of wastewater treatment sludge and 2,597 metric tons of washwater 
cleaning sludge disposed in 1998. In addition, 35 metric tons of 
solvent sludge goes to nonhazardous landfills. The remaining 1,300 
metric tons of waste solids disposed in 1998 go to Subtitle C 
landfills, fuel blenders, CWTs, waste piles, incinerators, cement 
kilns, boilers and industrial furnaces and ``other'' management units. 
Note that tanks and containers are intermediate storage and treatment 
units and their waste quantities are not counted in the total 8226 
metric tons disposed in 1998.

                                                  Table III.D-3.--Nonhazardous Waste Solids Management
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Waste solids types (weighted quantities in metric tons)
                                                              ------------------------------------------------------------------------------------------
                       Waste mgt. units                                       Emission     Emission    Wastewater   Washwater     Caustic      Solvent
                                                                Off-spec.     control      control     treatment     cleaning     cleaning     cleaning
                                                                 product        dust        sludge       sludge       sludge       sludge       sludge
--------------------------------------------------------------------------------------------------------------------------------------------------------
Subtitle D/MLF...............................................          942         1947            0         1440         2597            0           35
Subtitle C...................................................           80            9            0            0          352            0            0
On-site S. tank..............................................           53            0            0            0         1814            0            0
Off-site S. tank.............................................            0            0            0            0            0            0            0
On-site Trt. tank............................................            0         1066            0          487            0            0            0
Fuel Blending................................................          352            0            0           21            4            0            0
POTW.........................................................            0            0            0            0            0            0            0
WWTF.........................................................           48            0            0            5            0            0            0
NPDES........................................................            0            0            0            0            0            0            0
INC..........................................................           72            5            0           24           50            6            0
Cement Kiln..................................................           56            0            0            0            0            0            0
BIF..........................................................            3            0            0            0            0            0            0
Container....................................................         2023         3052            0          992         1154            6            2
Waste Pile...................................................            0            0            0            0            0            0           33
Other........................................................          133           11            0            0            1            0            0
                                                              ------------------------------------------------------------------------------------------
    Totals**.................................................         1686         1972            0         1490         3004            6          68
--------------------------------------------------------------------------------------------------------------------------------------------------------
**Total of each waste solid disposed in 1998 includes all disposal types except tanks and containers. The tanks and containers are considered
  intermediate handling, not final disposal destination steps.
Note: The bolded numbers within the table are those that were used to derive the totals for each column.
MLF=Municipal Landfill
On-site S. tank=On-site Storage tank
Off-site S. tank=Off-site Storage tank
On-site Trt. Tank=On-site Treatment tank
NPDES=National Pollutant Discharge Elimination System
INC=incinerator

[[Page 10078]]

 
BIF=Boiler & Industrial Furnace
POTW=Publicly Owned Treatment Works
WWTF=Wastewater Treatment Facility

    Based on this information, we chose to model disposal of waste 
solids in industrial nonhazardous landfills. This is a common disposal 
practice for a large portion of the waste solids disposed in 1998. 
There are only two differences in modeling assumptions for industrial 
nonhazardous landfills as compared to municipal landfills. Industrial 
nonhazardous landfills are slightly smaller than municipal landfills so 
the quantities of paint manufacturing waste modeled in the industrial 
landfill are a relatively larger proportion of the total waste 
quantities going into the unit. Also, industrial nonhazardous landfills 
are not assumed to have daily cover. Both of these add to the 
conservatism of the protective constituent levels predicted by the risk 
assessment. For our inputs to the risk modeling, we used quantities of 
off-specification product, emission control dust, wastewater treatment 
sludge, washwater cleaning sludge and solvent sludge sent to 
nonhazardous landfills. We did not include the small volume of caustic 
cleaning sludge because they were incinerated and they were not 
disposed in nonhazardous landfills. Emission control sludge was not 
included either because it was not generated by any of the survey 
respondents in 1998. The risk assessment in Section III.E, contains 
more details about the methodology of the risk modeling process.
    At the outset of our analysis of the survey data, we did not 
believe that a landfill was a logical disposal destination for off-
specification product. We further investigated the disposal information 
for off-specification product and decided that it should be in our 
waste solids quantity distribution for risk assessment. We contacted 
the eleven facilities that reported generating off-specification paint. 
Nine of the eleven facilities stated that they sent only dried paint 
wastes to nonhazardous landfills. The tenth facility reported sending 
7.5 metric tons of mostly dried paint and paint flakes with small 
amounts of liquid paint wastes to landfills. The eleventh facility 
reported sending 14.7 metric tons of off-specification product of 
unknown physical characteristics to nonhazardous landfills in 1998. We 
chose to model off-specification product with waste solids sent to 
nonhazardous landfills because large quantities (920 out of 942 metric 
tons) of this waste are in dry form when sent to nonhazardous 
landfills. Also, Municipal Solid Waste landfills have a prohibition on 
disposal of liquids and we believe that the majority of commercial 
industrial landfills do also (according to a 1995 EPA report ``State 
Requirements for Industrial Non-Hazardous Waste Management 
Facilities,'' 28 states restrict the placement of liquids in industrial 
nonhazardous waste landfills).
    The survey data contained information about four types of waste 
management practices for waste solids that we chose not to model. The 
first of these is treatment of solvent sludge in a waste pile. One 
facility reported using a waste pile as an intermediate waste 
management step for 33 metric tons of solvent sludge. Based on further 
discussion with the facility contact, we determined that this waste was 
a free flowing slurry that was piled on cardboard boxes inside a 
containment building to dry and then disposed in a nonhazardous 
landfill. We chose not to model this scenario because the waste is 
managed in a closed facility. It is not open to airborne wind transport 
and does not involve placement directly on the land. The remaining 
solidified waste is disposed in a nonhazardous landfill.
    Another type of waste management that we did not model is 
combustion in incinerators, cement kilns, and boilers and industrial 
furnaces. In past listing determinations where we have attempted to 
assess risks from incineration, we found that the potential risks from 
the release of constituents through incineration would be at least 
several orders of magnitude below potential air risks from releases 
from tanks or impoundments (see listing determination for solvent 
wastes at 63 FR 64371, November 19, 1998). Further, it is difficult to 
model what goes into combustion units in relation to the residual 
constituents that are released from the combustion unit either in ash 
or air.\11\
---------------------------------------------------------------------------

    \11\ While other products of incomplete combustion may present 
possible risks, it is difficult for us to assess this potential for 
the chemicals of concern, especially for the likely scenario of a 
small volume of paint manufacturing wastes being treated with other 
much larger volumes of organic wastes.
---------------------------------------------------------------------------

    We also chose not to model solid wastes sent to fuel blenders. All 
of the fuel blending facilities reported in the survey were located at 
Subtitle C permitted facilities. Since these fuel blenders receiving 
paint manufacturing waste solids are RCRA permitted, they must comply 
with protective regulations regarding releases from RCRA units and from 
the RCRA facility. Finally, for these units it is also difficult to 
model what goes into the unit in relation to the residual constituents 
that are released from the unit to the air.
    One last category of management unit that we chose not to model is 
the ``other'' category. For the waste solids reported in this survey, 
``other'' encompassed a variety of waste management types. The total 
145 metric tons of waste solids handled in ``other'' management units 
can be divided into four categories: Wastes that are disposed off-site 
at waste treatment facilities, wastes that are reworked back into the 
paint process, wastes that are sold to other companies and wastes sent 
for precious metal recovery. Sixty-nine (69) metric tons of off-
specification product and emission control dust were sent to off-site 
waste treatment and disposal facilities. Nine metric tons were treated 
on-site and then sent to a Subtitle C landfill. Fifty-nine (59) metric 
tons of off-specification product and emission control dust were 
reworked back into the paint process on-site. Small quantities of off-
specification product and emission control dust totaling 3.5 metric 
tons were sold to other companies who were not concerned about the 
quality of the paint manufacturing waste for the manufacture of a new 
product or the resale of a low grade paint. Less than one metric ton 
(0.7) of emission control dust was sent to an off-site precious metal 
recovery facility for recovery of the silver in the paint manufacturing 
waste. Three metric tons of waste solids out of the 145 metric tons is 
emission control dust that was reported to be released to the air from 
pollution control devices that were not functional. The remaining one 
metric ton of washwater cleaning sludge was sent to an off-site waste 
treatment facility. We chose not to model any of these scenarios 
because the scenarios we did decide to evaluate were likely to be the 
riskier scenarios and over half of these wastes going to ``other'' 
units were either being reworked into the paint process or used for 
manufacture of other products.
    The paint manufacturing industry recycles several of its waste 
streams. One of these streams is air emissions control dust. Sometimes 
this material is used on-site in the formulation of low-grade paint, or 
sent off-site to other

[[Page 10079]]

paint manufacturers for the same purpose (in neither case is 
reclamation involved). In either case, the dust would not be considered 
a solid waste because it is used or reused as an ingredient in an 
industrial process to make a product pursuant to 40 CFR 261.2(e)(I)). 
The dust contains valuable raw materials that are required to make 
paint products. We have therefore not included these recycled dusts 
when modeling our waste disposal scenarios. The Agency also notes that 
this practice appears to be a form of legitimate recycling because 
paint (even low-grade paint) must always meet certain specifications to 
be usable. Recycled dust would only be added if it served as a required 
ingredient in the paint.
    Another method of recycling air pollution control dust involves 
sending the materials off-site for recovery of precious metals (e.g., 
gold, silver, platinum). These materials would be considered solid and 
hazardous wastes if they exhibit the toxicity characteristic for 
metals, or if they exceeded the concentration levels in today's 
proposed listing. Under those circumstances, they would be subject to 
the reduced regulatory requirements of 40 CFR 266.70. However, EPA has 
chosen not to include these materials in our waste disposal scenarios 
because we believe that their inherent economic value would ensure 
careful handling, thereby greatly minimizing the risk of releases. See 
the 1985 rationale for the special regulatory regime for precious metal 
reclamation (50 FR614, 648-49 (January 4, 1985)).
    c. Selection of Waste Management Scenarios for Risk Assessment 
Modeling of Nonhazardous Paint Manufacturing Waste Liquids. EPA 
estimates that the 884 paint manufacturing facilities in the sampling 
population disposed of 36,052 metric tons (weighted) of waste liquids 
in 1998. Over 99% of this amount is washwater cleaning waste. A very 
small amount of solvent cleaning and caustic cleaning liquids make up 
the remaining 69 metric tons. Table III.D-4 shows how the 36,052 metric 
tons of nonhazardous waste liquids were disposed in 1998.
    The predominant destinations for washwater cleaning liquids are 
POTWs and CWTs. About 27,625 metric tons of washwater cleaning liquid 
go to POTWs and 6407 metric tons go to CWTs. Some of the 27,625 metric 
tons of washwater cleaning liquid is directly discharged to POTWs, but 
a significant portion is stored and treated on-site prior to being sent 
to the POTW. Fourteen thousand five hundred thirty (14,530) metric tons 
of washwater cleaning liquids are managed in on-site storage tanks and 
7487 metric tons of washwater cleaning liquids are managed in on-site 
treatment tanks. These tanks are the intermediate storage and treatment 
units for almost all of the washwater cleaning liquids going to POTWs, 
CWTs and the remaining waste management categories where these liquids 
are disposed. The survey results indicated that about 17,000 metric 
tons of washwater cleaning liquids are directly discharged by paint 
facilities to POTWs. The remainder of the washwater cleaning liquids 
(10,000 metric tons) that are sent to POTWs are stored or treated in 
on-site tanks prior to discharge to the POTW. One facility directly 
discharges 76 metric tons of washwater cleaning liquid under a NPDES 
permit. These NPDES and POTW point source discharges that are subject 
to regulation under Section 402 of the Clean Water Act are excluded 
from the RCRA statutory definition of solid waste and therefore are not 
subject to RCRA regulation. See 42 U.S.C. 6903(2) and 40 CFR 261.4(a)2. 
However, while the liquids are being collected, treated or stored they 
are subject to RCRA regulation. This also applies to any sludges 
derived from the storage or treatment of the liquids.
    Another destination for washwater cleaning liquid is offsite 
storage and treatment tanks at CWTs. About 6407 metric tons of 
washwater is sent to CWTs for treatment and then discharged to POTWs or 
under a NPDES permit. The volumes of washwater liquid are probably 
stored and treated in offsite tanks as our survey data showed that they 
are onsite.
    ``Other'' management units receive 1309 metric tons of washwater 
cleaning liquids. Five hundred sixty-three (563) metric tons of 
washwater cleaning liquid goes to fuel blending units, incinerators and 
cement kilns. A very small amount of washwater cleaning liquid, 3 
metric tons was sent to nonhazardous landfills in 1998.
    The other two waste liquid streams, solvent cleaning and caustic 
cleaning liquid are disposed at fuel blending facilities and at POTWs, 
respectively. POTWs received about 32 metric tons of caustic cleaning 
liquids and fuel blenders received 4 metric tons of solvent cleaning 
liquid in 1998. Sixty-one (61) metric tons of caustic cleaning liquid 
is stored or treated in on-site tanks and an additional 33 metric tons 
is managed in ``other'' units.
    Based on these facts, we chose several modeling scenarios. The 
first of these was the off-site storage of washwater cleaning liquids 
in uncovered tanks at CWTs. About 18% of the yearly total of washwater 
cleaning liquid disposed goes to CWTs. Another scenario we modeled was 
the onsite treatment of washwater in tanks prior to discharge to a POTW 
or under a NPDES permit. We also chose to model the on-site treatment 
of washwater cleaning liquids in tanks because a significant amount of 
liquids are handled in on-site tanks. This modeling scenario should 
account for any exposure to washwater cleaning liquids and sludges 
being treated in on-site tanks that are subsequently disposed through a 
POTW or NPDES discharge.
    We also chose to model waste liquids managed in an unlined surface 
impoundment because we found one lined surface impoundment at a CWT and 
we cannot, at this time, rule out the possibility that some quantities 
of liquid paint manufacturing wastes may be managed in an unlined 
impoundment which would present greater risks of release to the 
environment. Survey respondents did not report any on-site impoundments 
for management of liquid wastes. However, because we know that waste 
management in surface impoundments, and particularly in unlined 
impoundments, could pose significant risk, we chose to look for other 
plausible scenarios that might involve impoundments.

          Table III.D-4.--Nonhazardous Waste Liquids Management
------------------------------------------------------------------------
                                       Waste Liquid types  (weighted
                                         quantities in metric tons)
                                  --------------------------------------
         Waste mgt. units           Washwater     Caustic      Solvent
                                     cleaning     cleaning     cleaning
                                      liquid       liquid       liquid
------------------------------------------------------------------------
Subtitle D/MLF...................            3            0            0
Subtitle C.......................            0            0            0
On-site S. tank..................        14530           33            0

[[Page 10080]]

 
Off-site S. tank.................            1            0            0
On-site Trt. tank................         7487           28            0
Fuel Blending....................          455            0            4
POTW.............................        27625           32            0
WWTF.............................         6407            0            0
NPDES............................           76            0            0
INC..............................           56            0            0
Cement Kiln......................           52            0            0
BIF..............................            0            0            0
Container........................         1517            0            4
Waste Pile.......................            0            0            0
Other............................         1309           33            0
                                  --------------------------------------
    Totals**.....................        35983           65           4
------------------------------------------------------------------------
** Totals for each column are derived from addition of all the bolded
  numbers in each column. This total includes all disposal types except
  tanks and containers, these are considered intermediate handling, not
  final disposal destination steps.
Note: The bolded numbers within the table represent the quantities of
  disposed waste that were summed to calculate the total waste disposed
  for each waste type.
MLF=Municipal Landfill
On-site S. tank=On-site Storage tank
Off-site S. tank=Off-site Storage tank
On-site Trt. Tank=On-site Treatment tank
NPDES=National Pollution Discharge Elimination System
INC=incinerator
BIF= Boiler & Industrial Furnace
POTW=Publicly Owned Treatment Works
WWTF=Wastewater Treatment Facility

    In other listing determinations, we have found management in 
surface impoundments for a number of waste streams, although on-site 
impoundments are more often associated with industries managing larger 
quantities of liquids. As discussed above, a number of facilities send 
their liquid waste to CWTs. These are the facilities that we believe 
could plausibly be managing wastes in surface impoundments. We 
contacted nine CWTs identified by survey respondents as receiving their 
wastes to determine whether any of them employ impoundments as part of 
their treatment processes. In fact, we found one facility that uses a 
double-lined impoundment.
    Twenty-one survey respondents indicated that they are sending 
liquid waste to facilities they identified as wastewater treatment 
facilities. Considering the universe of estimated 972 paint 
manufacturers, we estimate that 4 or 5 other impoundments may be 
receiving paint manufacturing wastes (see the listing background 
document for this analysis). It may be reasonable to assume that 
management of paint manufacturing wastes in an unlined surface 
impoundment may occur. Therefore, we assumed this is a plausible 
management scenario that we modeled for our risk assessment. Section 
IV. D (proposed listing determination) contains additional discussion 
concerning uncertainties associated with this scenario and discussion 
of whether this is likely to be sufficiently rare that we should 
consider an alternative approach.
    Finally, we chose to model management of washwaters in on-site, 
uncovered treatment tanks. Eight survey respondents reported that they 
had uncovered on-site storage and treatment tanks. Volatile emissions 
from the hazardous constituents contained in the washwater cleaning 
liquids could be released into the air from these uncovered tanks. 
Therefore we also chose to model management of waste liquids in 
uncovered on-site treatment tanks because treatment tanks represent a 
more conservative modeling scenario (higher air emissions from aerated 
tanks) than storage tanks. We modeled the scenario of waste liquids 
stored in uncovered storage tanks. We used the weighted quantities of 
waste liquids (22,078 metric tons) reported in the survey as being 
managed in on-site storage and treatment tanks.
    There were five types of waste liquid management that we did not 
choose to model. One of these management scenarios is the disposal of 
washwater cleaning liquid in nonhazardous landfills. We contacted the 
facilities that reported this practice and found that, in both cases, 
the washwater cleaning liquid sent to the landfills was a liquid/solids 
mixture. One facility reported that the mixture was filter pressed at 
the landfill, the water portion was discharged to a POTW and the 
remaining sludges were dried and disposed in a nonhazardous landfill. 
The other facility reported that the liquid portion was incinerated and 
the solids placed into a nonhazardous landfill. These scenarios are 
not, therefore placement of liquids in a landfill. The next type of 
waste liquids management that we did not model is the direct discharge 
of washwater cleaning liquids to a POTW. RCRA regulation of waste 
liquids that are stored or treated in tanks prior to discharge to a 
POTW or under a NPDES permit is excluded under 40 CFR 261.4(a)(2), at 
the permitted discharge point for the facility. The on-site storage, 
collection and treatment of liquids and sludges generated from waste 
liquids are however, subject to RCRA regulation. Another management 
type that was not modeled is the combustion of washwater cleaning 
liquids and caustic cleaning liquids in incinerators and cement kilns 
or via fuel blending. In the previous section on waste solids we 
explain the Agency's rationale for not modeling combustion

[[Page 10081]]

or fuel blending. That rationale applies equally to waste liquids.
    The categories of ``other'' units reported for waste liquids that 
we considered but did not select for modeling are: 541 metric tons of 
washwater cleaning liquids reworked back into the paint process; 570 
metric tons of washwater cleaning liquids treated on-site in tanks and 
discharged to POTW and NPDES point sources; 51 metric tons of washwater 
and caustic cleaning liquids stabilized on-site and sent to Subtitle C 
landfills and 179 metric tons of washwater cleaning liquids sent to on-
site and off-site treatment units. The washwater cleaning liquids 
reworked back into the paint process may not be in the scope of this 
listing. However, our modeling of uncovered on-site treatment tanks 
does estimate the risks from any of these washwater liquids that are 
within the scope of the listing. The washwater cleaning liquids 
reported under ``other'' that are discharged to a POTW should have been 
reported as going to POTWs and included in that quantity of washwater 
cleaning liquids. As explained earlier, the on-site treatment or 
storage of any liquids being discharged to a POTW is covered by our 
risk modeling of on-site treatment tanks. The washwater and caustic 
cleaning liquids that are treated on-site and sent to a Subtitle C 
landfill are also covered by our on-site treatment tank modeling. The 
last group of ``other'' units (the 179 metric tons of waste liquids) 
consists of 23 metric tons of washwater cleaning liquid sent for off-
site treatment and disposal; and 156 metric tons of on-site treatment 
conducted in tank type units. The estimate of any risks posed from the 
treatment of washwater cleaning liquids in these units should be 
covered by our risk modeling of on-site treatment in tanks of washwater 
cleaning liquids.
    d. Survey Data as Input to Modeling Parameters. To conduct a risk 
assessment for these wastes, we needed to assemble the survey data 
associated with disposal of waste solids and waste liquids into our 
chosen waste management units of concern: industrial nonhazardous 
landfills, on-site tanks, off-site tanks and surface impoundments. The 
specific data we used were the quantities of waste solids and waste 
liquids sent by each facility to each of our four management units of 
concern. We used these data as input to the modeling parameters in our 
risk assessment. The risk assessment estimated the concentration of 
individual constituents that could be present in each waste and remain 
protective of human health and the environment. These risk based 
constituent concentration levels in the waste streams are the levels 
that can be managed in the waste streams and remain below a target 
cancer risk level of 1 X 10-5 excess lifetime cancer risk 
for individuals exposed to carcinogens in the waste streams and a 
target hazard quotient (HQ) of 1.0 for individuals exposed to 
constituents in the waste streams that produce noncancer health 
effects.
    We also needed to capture the distribution of waste quantities 
going to individual waste management units. Once we determined that we 
could represent paint manufacturing wastes as solids and liquids 
disposed in nonhazardous landfills, on-site treatment tanks, off-site 
wastewater treatment tanks and surface impoundments, we then developed 
a methodology to assemble the waste quantity distributions for solids 
and liquids sent from each facility in the sampling population to each 
of these four types of waste management units. We used the individual 
weighted quantities of waste solids sent to nonhazardous landfills to 
compile the waste solids distribution and the individual weighted 
quantities of waste liquids sent to tanks and surface impoundments at 
offsite wastewater treatment facilities for the waste liquids 
distribution. We considered several factors in developing the waste 
quantity distributions including the total quantities of each 
individual type of waste stream reported by the surveyed facilities, 
whether any facilities that generate these wastes may produce 
quantities of waste conditionally exempted under EPA regulations for 
small quantity generators and whether any of the surveyed facilities 
reported waste co-management scenarios.
    First, we identified conditionally exempt small quantity generators 
by combining the entire hazardous and nonhazardous paint manufacturing 
waste solid and liquid quantities for all waste streams within the 
scope of this listing generated by each surveyed facility. We compared 
these quantities of waste to the amount specified in Sec. 261.5 (a), 
the Conditionally Exempt Small Quantity Generator (CESQG) exclusion 
criteria. This existing regulation excludes those facilities from 
Subtitle C that generate no more than 100 kilograms per month of 
hazardous waste or 1.2 metric tons per year. We separated the survey 
data from the CESQG facilities because under the Federal RCRA 
regulations, they could continue to send their small waste quantities 
to nonhazardous disposal facilities. Including these very small waste 
quantities in our risk modeling could inappropriately bias the modeling 
results toward the higher protective constituent concentrations. 
Therefore, it would be inappropriate to include these small volumes in 
the risk modeling to develop the regulatory limits, since these wastes 
would be excluded from the regulation. Also, including these small 
volumes in the modeling would bias the results towards higher 
protective limits because, all other things being equal, small volumes 
result in lower estimated risk and therefore higher protective levels. 
Further, even if all the CESQG facilities' wastes are hazardous, they 
could continue to manage them in a municipal solid waste landfill, in 
accordance with appropriate individual state requirements. Twelve 
facilities reported that they generated less than 1200 kilograms per 
year of hazardous and nonhazardous wastes combined. We did not use the 
data for these 12 for any of the risk assessment modeling because the 
generators of these conditionally exempt quantities could continue to 
manage their wastes as they are currently managing them even if the 
wastes were listed.
    Next, we compiled separate waste quantity distributions for waste 
solids and waste liquids. We also accounted for co-management scenarios 
as reported in the survey responses. Co-management scenarios are: (1) 
Waste solids or waste liquids generated at a single paint facility that 
are disposed at the same off-site management unit, and (2) waste solids 
or waste liquids from different paint facilities that are sent to the 
same off-site waste management unit. Each of these combinations results 
in larger paint manufacturing waste quantities being associated with 
disposal at particular waste management units. We combined these 
quantities for 14 waste solid co-management scenarios.
    At this point, the waste solids quantity distribution consisted of 
quantities of nonhazardous off specification product waste, 
nonhazardous emission control dust, nonhazardous water/caustic sludge, 
nonhazardous wastewater treatment sludge and nonhazardous solvent 
sludge sent to nonhazardous landfills. All waste solid quantities from 
any of the surveyed facilities that did not meet the conditionally 
exempt small quantity generator exclusion were included. The waste 
solids quantity distribution had 57 entries for single and co-managed 
waste streams. In addition to this quantity distribution that combined 
all the types of waste solids (combined waste solids), a second 
quantity distribution was constructed that contained only nonhazardous 
emission

[[Page 10082]]

control dust sent to nonhazardous landfills. The emission control dust 
only distribution was constructed similarly to the manner in which the 
combined solids quantity distribution was constructed. It did not 
include the conditionally exempt small quantity generator facilities 
data and co-management of wastes was considered. The emission control 
dust only distribution was input into the risk model with an 
accompanying low moisture content to represent a worst-case scenario 
for wind blown materials that could be released from the nonhazardous 
landfill.
    We created three separate waste liquid distributions in the same 
manner as the solids distributions to correspond to the modeling 
scenarios for liquids. Initially, any CESQG facilities that generated 
waste liquids were eliminated from consideration. The first waste 
liquid distribution contained washwater cleaning liquid quantities sent 
off-site to a CWT. We combined waste liquid quantities where we found 
co-management scenarios. We used this quantity distribution to evaluate 
washwater cleaning liquid stored in uncovered off-site tanks at CWTs. 
Next, the surface impoundment waste liquid quantity distribution was 
exactly the same as the distribution of all quantities of washwater 
cleaning liquids that sent to off-site CWTs. Because surface 
impoundments, when they exist, are a part of the CWT's treatment 
process, we assumed that quantities of waste liquids sent off-site to 
CWTs could be treated in unlined surface impoundments as well as in 
tanks. The third liquids quantity distribution consists of the largest 
washwater cleaning quantity reported in the survey. This single 
quantity was used to conduct a conservative risk assessment screening 
for exposure to emissions from waste liquids in uncovered on-site 
treatment tanks.
    To summarize, we assembled five separate quantity distributions 
using the survey response information.

     One distribution consisted of all the survey quantities 
of nonhazardous combined waste solids from: nonhazardous solvent 
cleaning sludge, nonhazardous washwater cleaning sludge, 
nonhazardous waste water treatment sludge, nonhazardous emission 
control dust and nonhazardous off specification product. This 
distribution called, ``combined solids'' was used for risk analysis 
as a sludge-like material in a nonhazardous landfill.
     The second distribution consisted of all nonhazardous 
emission control dust quantities only. This distribution was used 
for risk assessment modeling as a dust-like material going to a 
landfill.
     The third distribution was a liquids distribution that 
consisted of all nonhazardous liquid quantities of nonhazardous 
washwater cleaning liquid that were disposed in off-site tanks at 
CWTs. This liquids distribution was used for risk modeling of waste 
liquids being sent to uncovered off-site treatment tanks.
     The fourth quantity distribution was exactly the same 
as the one above, but the target management unit was a surface 
impoundment instead of a tank.
     The last quantity used for modeling was a single 
quantity, the highest washwater cleaning liquid quantity managed in 
uncovered on-site treatment tanks as reported in the survey. This 
was used to evaluate risks from waste liquids managed in on-site 
storage and treatment tanks.

    Each of these quantity distributions was used in the process of 
modeling the risk to human and environmental receptors from the 
disposal of waste solids and liquids in nonhazardous landfills, tanks 
and surface impoundments. The next section describes the risk 
assessment approach and process in detail.

E. What Risk Assessment Approach Did EPA Use to Determine Allowable 
Constituent Waste Concentrations?

1. Which Factors Did EPA Incorporate Into Its Quantitative Risk 
Assessment?
    In making listing determinations, the Agency considers the listing 
criteria required in 40 CFR 261.11. The criteria provided in 40 CFR 
261.11 include eleven factors for determining ``substantial present or 
potential hazard to human health and the environment.'' Nine of these 
factors, as described generally below, are directly incorporated into 
EPA's completion of a risk assessment for the waste streams of concern:

     Toxicity (Sec. 261.11(a)(3)(i)) is considered in 
developing the health benchmarks used in the risk assessment 
modeling.
     Constituent concentrations that pose a hazard to human 
health are determined in the risk assessment 
(Sec. 261.11(a)(3)(ii)).
     Waste volumes (Sec. 261.11(a) (3)(viii)) are used to 
define the initial conditions for the risk evaluation.
     Potential to migrate, persistence, degradation, and 
bioaccumulation of the hazardous constituents and any degradation 
products (sections 261(a)(3)(iii), 261.11(a)(3)(iv), 
261.11(a)(3)(v), and 261.11(a)(3)(vi)) are all considered in the 
design of the fate and transport models used to determine the 
concentrations of the contaminants to which individuals are exposed.
     Finally, we consider two of the remaining factors, 
plausible mismanagement as discussed in the previous section and 
other regulatory actions as discussed in Section IV on the proposed 
listing determinations ((Secs. 261.11(a)(3)(vii) and 
261.11(a)(3)(x)) in establishing the waste management scenario(s) 
modeled in the risk assessment.

    EPA conducted analyses of the risks posed by the waste streams 
evaluated for this listing to determine the concentrations of 
constituents that if found in paint production wastes would meet the 
criteria for listing set forth in 40 CFR 261.11(a)(3). This section 
discusses the human health risk analyses and ecological risk screening 
analyses EPA conducted to support our proposed listing determinations 
for paint and coatings production wastes. We consider the risk analyses 
in developing our listing decisions for each of the waste streams. The 
risk analyses we describe in this section are presented in detail in 
the Risk Assessment Technical Background Document for Paint and 
Coatings Listing Determination which is located in the docket for 
today's proposed rule.
2. How Did EPA Use Damage Case Information?
    We also considered whether any damage cases exist that indicate 
impacts on human health or the environment from improper management of 
the wastes of concern, which is required under the listing regulations 
(Sec. 261.11(a)(3)(ix)). Damage incidents might be useful in not only 
establishing whether there was any impact on human health or the 
environment from improper management, but such incidents might also 
provide some information on plausible mismanagement practices, and on 
the potential of the waste constituents to migrate, persist, or degrade 
in the environment. We compiled damage incidents involving paint 
production wastes and paint constituents, including paints disposed of 
by non-paint manufacturing facilities. We found approximately 21 
incidents that appear to involve the release of constituents from the 
management of paint product wastes either at the site of paint 
manufacture, or at off-site facilities. We also found damage incidents 
for the disposal of paint wastes by end-users, and numerous other 
possible incidents for which we did not have adequate information to 
determine the type of facility or the nature of the waste involved. A 
report summarizing the results of this search is in the docket for 
today's rule (Damage Incident Compendium and Report, July 2000).
    A number of the data sources contained information on potential 
problems related to management or use of paint materials at a variety 
of sites. The information of most potential utility came from the 
Superfund Public Information System (SPIS). The SPIS contains data from 
the Record of Decision System (RODS), which

[[Page 10083]]

document remediation actions as sites on the National Priority List 
(NPL), and the Comprehensive Environmental Response Compensation and 
Liability Information System (CERCLIS), which contains other 
information on potential and actual Superfund sites. Information from 
other sources proved to be less useful. For example, a search of the 
Right-to-Know network database (RTK) provided some matches for paint as 
a pollutant in the database of civil cases filed by the Department of 
Justice on behalf of EPA, however these included violations of RCRA 
permitting, storage, and reporting requirements, rather than disposal 
problems, or violations of the CAA or CWA. The Defense Technical 
Information Center database provided information on defense 
installations on the NPL and slated for closing, however these appear 
to be end users, not paint manufacturers.
    EPA believes the damage cases have limited utility for determining 
current plausible mismanagement scenarios. The vast majority of damage 
cases (especially Superfund sites) were from sites that operated prior 
to implementation of the current RCRA regulations, and generally 
reflect management practices that no longer occur (such as an in ground 
solvent pit, buried crushed drums and dumping liquids in trenches). We 
believe these past damage incidents do not represent current waste 
management practices by the paint manufacturing industry. This is 
supported by the results from the 3007 Survey, which indicate that 
manufacturers are coding and managing many wastes as hazardous, 
especially some of those likely to have the greatest solvent content. 
For example, all facilities that reported solvent cleaning wastes 
reported them to be hazardous, except for one that was sent to fuel 
blending. Therefore, we expect that waste management practices have 
changed, since the promulgation of the RCRA regulations, including the 
addition of a number of organics to the Toxicity Characteristic in 1990 
and the listings for certain waste solvents (F001 to F005) in 1980 (and 
as revised in 1985).
    In most cases, the available damage incident data rarely indicated 
the composition of the paint or paint manufacturing waste, nor the 
source of the waste. Instead, the data depicted the material or waste 
in general terms, such as ``paint,'' ``paint manufacturing waste,'' or 
``sludges.'' Thus, the databases did not categorize the damage 
incidents involving paint manufacturing wastes into the specific waste 
categories of interest (solvent cleaning wastes; water/caustic cleaning 
wastes; wastewater treatment sludge; emission control dust or sludge; 
and off-specification production wastes) nor allow us to determine 
concentrations above which paint manufacturing wastes could pose a 
hazard. Thus we are unable to directly attribute contamination observed 
from the mismanagement of paint manufacturing wastes to those the 
wastes that are specifically addressed by this proposed listing.
    Even if historical problems could be traced to paint materials, 
they are not very useful in assessing the potential risks for paint 
production wastes as they are currently generated. The damage incidents 
may represent the potential for the migration, mobility, and 
persistence of constituents in paint manufacturing wastes. The damage 
cases do provide some anecdotal information in support of a conclusion 
that some paint manufacturing wastes may yield environmental 
contamination when managed in the ways that lead to the damage cases. 
However, because the wastes in the damage cases may include wastes now 
managed as hazardous, and because the cases may reflect management 
scenarios we do not believe are currently common or plausible, it is 
difficult to use them to reach conclusions as to which of the wastes 
under evaluation in today's proposal may pose significant risks. 
Certainly it is difficult to use damage cases to ascertain at what 
concentration the paint manufacturing wastes under evaluation may pose 
such risks. Thus, while the damage cases supports that some paint 
manufacturing wastes may sometimes pose risks, EPA is relying upon its 
quantitative risk assessment in formulating today's proposal.
3. Overview of The Risk Assessment
    For a concentration-based listing, EPA is proposing to calculate 
the concentration levels, or ``listing levels'' in the waste at or 
above which a waste would be considered hazardous. Risk assessment is 
used to identify the concentrations of individual constituents that can 
be present in each waste stream and remain below a specified level of 
risk to both humans and the environment.
    To establish these listing levels, the Agency (1) Selected 
constituents of potential concern in waste, (2) evaluated plausible 
waste management scenarios, (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 are likely to pose unacceptable risk. In addition, 
the EPA conducted a screening level ecological risk assessment to 
ensure that the concentration limits were dually protective of human 
health and ecological life.
    The following sections explain the selection of constituents that 
we evaluated in the risk assessment and present an overview of the 
analysis the Agency used to calculate risk-based listing levels for 
solvent cleaning waste, water and/or caustic cleaning waste, waste 
water treatment sludge, emission control dust and sludges, and off-
specification product. 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 Risk Assessment Technical Background Document for the Paint 
and Coatings Listing Determination (hereafter called the Technical 
Background Document).
4. How EPA Chose Potential Constituents of Concern
    Our overall goal in choosing potential constituents of concern was 
to identify commonly used, potentially hazardous constituents that 
could pose unacceptable risk if present in mismanaged paint 
manufacturing wastes. Waste sampling was not practical because we would 
have had to conduct extensive sampling to adequately represent 
thousands of variable products and constituents. As an alternative, we 
chose to rely on published information and environmental databases to 
select constituents of concern. We believe our review of the literature 
available on paint formulation and manufacturing combined with our 
search of specific databases provided representative information on 
widely used raw materials. In addition, we selected constituents for 
which we had access to toxicity and fate and transport data to conduct 
a risk assessment for each potential constituent of concern. We 
verified and supplemented these sources with information provided by 
paint manufacturers when the 3007 survey data was available.
    We used the following three-phased approach to develop a list of 
potential constituents of concern. In the first phase, we developed a 
preliminary list of potentially hazardous constituents in paint 
formulations which we could readily evaluate for potential risks to 
human health, and for which we have test methods to detect their 
presence in waste. In the second phase, we narrowed the list to 
constituents for which we would conduct a risk assessment. In the third 
phase, we

[[Page 10084]]

added a limited number of constituents to the risk assessment, as 
additional information became available.
    a. Phase 1: How Did EPA Develop a Preliminary List of Constituents? 
We developed a preliminary list of constituents in three steps: first, 
out of the thousands of constituents that are used as ingredients in 
paints, we identified a subset of potentially hazardous constituents 
used in paint formulations; second, we identified those constituents 
for which we have adequate data to complete a risk assessment so that 
we could develop a protective concentration level for the listing, if 
appropriate; finally, we ensured that test methods were available so 
paint manufacturers would be able to identify the presence and 
concentration of constituents in their wastes, as necessary.
    Initially, we relied on the ``Database of Published Paint 
Information'' (available in the docket), a computerized database that 
characterizes paint raw materials. In particular, we used the ``Raw 
Materials Module'' which contains information on the following types of 
ingredients that are used to make paints (we believe that these 
categories cover the vast majority of paint ingredients that could pose 
a concern):

    Additives--Inorganic and organic metal-containing raw material 
additives such as driers (siccatives), catalysts, stabilizers.
    Binders--Organic polymeric compounds used to adhere the pigment 
particles and other paint ingredients into a film on the surface 
being painted.
    Biocides--Compounds used to kill microorganisms and larger 
organisms such as insects. Categories of biocides include 
insecticides, anti-fouling compounds (e.g., for use on ships), 
fungicides, algaicides, and mildewcides.
    Pigments--Insoluble particulates used to give the paint film 
color as well as structured strength, as well as in some cases 
imparting corrosion resistance or other properties to paint film.
    Solvents--Solvents used both in traditional ``oil'' based 
(solvent based) paints, as well as those solvents used in waterborne 
paints.

    The constituents in the ``Raw Materials Module'' were identified 
from an extensive set of reference materials, including textbooks, 
monographs, articles and Material Safety Data Sheets listed in the 
``Bibliography of Documents Module'' of the database. We believe this 
survey approach allowed us to identify constituents that are used in 
paint formulations based on a variety of sources. We also emphasized 
constituents we had reason to believe were more likely to pose a risk 
to human health and the environment. (For example, we used other 
governmental sources, such as a National Institute of Occupational 
Safety and Health (NIOSH) document characterizing hazardous worker 
exposures in paint manufacturing, as well as our experience in the RCRA 
program dealing with a variety of hazardous and potentially hazardous 
constituents.) In the fall of 1999, when we developed the preliminary 
list of constituents, the Raw Materials Module contained approximately 
500 constituents.
    In developing the preliminary list of constituents, we also 
considered other sources that might provide information on specific 
constituents associated with paint manufacturing facilities. For this, 
we turned to the Toxics Release Inventory (TRI) data base. Under the 
Emergency Planning and Community Right-to-Know Act (EPCRA), all paint 
manufacturing facilities with ten or more employees must report 
chemical releases if they manufacture, process, or otherwise use any 
EPCRA section 313 chemicals in quantities greater than the established 
thresholds. Facilities must report the quantities of both routine and 
accidental releases. Facilities are required to report quantities only 
for individual constituents. In the 1997 TRI, a total of 646 facilities 
in SIC code 2851 reported releasing 115 different constituents into the 
environment. From these 115 constituents, we identified approximately 
60 additional constituents that were not already in the ``Raw Materials 
Database,'' but were associated with paint manufacturing facilities. 
While TRI reports of constituent releases cannot be tied directly to 
the five waste streams in the scope of this rule, TRI releases do tell 
us that the constituents are used by paint manufacturing facilities, 
released into the environment, and could potentially be found in the 
waste streams of concern.
    We recognize that the TRI data do not correlate perfectly to the 
scope of facilities and wastes potentially covered by this listing. For 
example, the SIC category also includes some facilities that are not 
paint producers. Also, TRI tracks releases of specific constituents. 
However, the TRI data do not distinguish whether the releases are 
hazardous or non-hazardous wastes or whether the constituents are 
present in a larger matrix with other materials. While TRI does not 
contain sufficiently detailed information to associate releases 
directly with paint production, it does provide the best available 
information source on toxic constituent releases to waste management 
units and environmental media from facilities within the appropriate 
SIC code.
    Our next critical step in identifying a preliminary list of 
constituents was to determine which constituents we could readily 
analyze for potential human health effects and which constituents could 
be readily tested in wastes. We looked for the following:

    Health benchmarks: values used to quantify a chemical's possible 
toxicity and ability to induce a health effect. Benchmarks are also 
specific to routes of exposure (ingestion or inhalation) and 
duration of exposure.
    Physical/chemical properties: information used to predict the 
behavior and movement of constituents in the environment essential 
to model environmental fate and transport.
    Analytic methods: reliable methods available to test for the 
presence of constituents at concentrations of concern in order to 
implement a concentration based listing. We identified those 
constituents that have available SW-846 analytic methods.

    We found that of the constituents in the Raw Materials Module and 
the constituents reported in the TRI, 114 had health benchmarks. We 
then searched for data on physical/chemical properties and SW-846 
analytic methods for each constituent. We finally had a list of 66 
constituents with test methods and sufficient data to conduct further 
analyses. We included the 66 constituents in the 3007 survey and asked 
respondents to identify which constituents occurred in each of their 
paint manufacturing waste streams. Table III.E-1 lists the 66 
constituents.

       Table III.E-1.--Candidate Constituents for Risk Assessment
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
Acetone
Acrylamide and acrylamide derived polymers
Acrylonitrile and acrylonitrile derived polymers
Allyl alcohol
Antimony and compounds
Barium and compounds
Benzene
Benzyl alcohol
Butyl benzyl phthlate
Cadmium and compounds
Chloroform
Chromium and compounds
Cobalt and compounds
Copper and compounds
Cyanide
Cyclohexane
Dibutyl phthlate
3-(3,4__Dichlorophenyl-1)1 dimethylurea
Diethyl phthlate
Di (2-ethylhexyl) phthlate
2,4 Dimethylphenol
1,4 Dioxane
Ethyl acetate
Ethylbenzene
Ethylene glycol
Formaldehyde and formaldehyde-derived polymers
Isophorone
Lead and compounds

[[Page 10085]]

 
M-Cresol
Methanol
Methyl acrylate
Methylene chloride
Methyl ethyl ketone
Methyl isobutyl ketone
Methyl methacrylate and methyl methacrylate derivatives
2,2 Methylenebis (3,4,6-trichlorophenol)
Mercury and compounds
Molybdenum and compounds
M-Xylene
Naphthelene
N-Butyl alcohol
Nickel and compounds
Nitrobenzene
2-Nitropropane
O-Cresol
O-Xylene
P-Cresol
Pentachlorophenol
Phthalic anhydride
Phenol
Selenium and compounds
Silver and compounds
Styrene and styrene-derived compounds
Tetrachloroethene
Tin and compounds
Toluene
Toluene diisocyanate
1,1,1 Trichloroethane
1,2,4-Trichlorobenzene
Trichloroethene
2,4,6 Trichlorophenol
Vanadium and compounds
Vinyl acetate and vinyl acetate derived polymers
Vinylidene chloride and vinylidene chloride derived polymers
Xylene (mixed isomers)
Zinc and compounds
------------------------------------------------------------------------

    b. Phase 2: How Did EPA Select Potential Constituents of Concern 
for the Risk Assessment? Before we began our initial risk assessment 
analyses in the fall of 1999, and before survey data were available, we 
selected a subset of 34 constituents (from the 66) to use in developing 
the risk assessment structure. We believe that it is important to 
select toxic constituents that are likely to occur across a wider 
variety of waste streams so that the concentration-based listing will 
capture more wastes of concern. While it is possible that infrequently 
occurring constituents could pose risks, we believe it is most 
effective to address risks from constituents that could be associated 
with more paint production wastes and occur in larger volumes. To 
select these constituents, we looked for some indicators that could 
give us insight into which were more widely used or more likely to 
occur in wastes. We started with the 66 constituents identified in 
Table 1 and looked at 1997 TRI data first to find constituent volumes 
released to waste management units and environmental media. We then 
looked at RCRA Biennial Reporting System (BRS) data to find how 
frequently paint manufacturing facilities generated hazardous wastes 
that contain each of the 66 constituents. ( Hazardous waste generators 
are required to report biennially the listed and characteristic 
hazardous wastes that they generate by waste code--the Biennial 
Reporting System. Each hazardous waste code for listed or TC 
characteristically hazardous wastes is associated with specific 
hazardous constituents that are the basis of the listing.) We looked at 
the number of paint manufacturing facilities that reported generating 
hazardous waste codes associated with the specific constituents we were 
interested in. While we know that these wastes are already hazardous, 
we looked at these data as possible indicators of constituents that 
might be associated with nonhazardous wastes at paint manufacturing 
operations. We also considered TRI data for two reasons. First, TRI 
``releases'' cover a broader range of materials than ``hazardous 
wastes'' (in the BRS) and include non-hazardous wastes that are not 
reported to BRS. Also, TRI data provide some indication of the relative 
amounts or frequency that constituents may be released into the 
environment.

    First, we looked at TRI for the volume of releases of each 
constituent from facilities in SIC 2851 to on-site landfills, 
solidification/stabilization, wastewater treatment, and offsite 
landfills and surface impoundments. We evaluated releases to these 
units first, because, while we did not yet have the results of the 
3007 survey, these management units correspond most closely to waste 
management scenarios we generally address for listing purposes. We 
initially identified a list of 20 constituents out of the 66 with 
the largest volume releases to these management units.
    Second, because solvents were heavily represented among the 
first 20 constituents we identified from TRI data, we focused on the 
remaining constituents that fell into other use categories, such as 
pigments, binders, and biocides. We believe that it is important to 
have a broader representation of other types of constituents, 
besides solvents, which are used in paint formulations. (We note 
that some constituents serve more than one purpose in paint 
formulations.) We considered total TRI releases (including releases 
to air, surface waters, etc., in addition to releases to the waste 
management units listed above) for each of the remaining 
constituents. We also looked at the number of RCRA facilities that 
are likely to generate the constituent in hazardous waste, based on 
BRS data. This resulted in adding 13 constituents, including all 
eight remaining pigments, binders and biocides that had any TRI 
releases and 5 that were only reported in the BRS.
    Third, while we did not have TRI data available for two 
additional constituents, cobalt and tin, we added them based on our 
knowledge that they are commonly used as pigments in paints.

    We initially identified 35 constituents that met our screening 
criteria. However, we later dropped one of the 35 constituents 
(phthalic anhydride) because it degrades too rapidly to model. In 
summary, we used the 34 constituents listed in Table III.E-2 to develop 
the risk assessment structure and draft analysis.
    c. Phase 3: How Did EPA Choose Additional Constituents for The Risk 
Assessment? Before we completed the risk modeling, we added a limited 
number of constituents to the 34 we chose initially. We looked at three 
groups of constituents. First, since we had chosen the initial group of 
constituents in the fall of 1999, we identified five additional 
constituents (from the list of 114 constituents with health benchmarks) 
that met the criteria for risk assessment (the Agency's Office of 
Research and Development identified physical/chemical properties and 
SW-846 methods are available). Second, we had 3007 survey responses 
reporting which of the 66 constituents (candidates for modeling, 
including the 34 we used to develop the risk assessment modeling 
structure) occur in non-hazardous waste streams. Finally, we found TRI 
data for one additional constituent on the list of 66. Ultimately, we 
chose additional constituents based on the 3007 survey reporting.
    First we considered the five constituents (from the initial list of 
114, but not included in the 66) for which we received later 
information identifying physical/chemical properties, and SW-846 
methods: these were acetophenone, chlorobenzene, ethyl ether, p-chloro-
meta-cresol, and tetrachloroisophthalonitrile. As with the first group 
of 34 constituents, we considered the available data for further 
evidence associating the constituents with paint manufacturing 
facilities. Acetophenone and chlorobenzene are TRI chemicals but had no 
TRI releases reported by SIC 2851 facilities. Ethyl ether, o-chloro-
meta-cresol, and tetrachloroisophthalonitrile are not covered by TRI. 
In the BRS, four SIC 2851 facilities reported hazardous wastes that 
were listed, at least in part based on chlorobenzene. We found no BRS 
reporting of hazardous wastes associated with the other four 
constituents.
    Then, we also considered the additional information reported in the 
3007 survey. The survey listed the 66 constituents that were candidates 
for

[[Page 10086]]

risk assessment and asked respondents to identify which constituents 
occur in each of their waste streams, both hazardous and non-hazardous. 
While response to this question was mandatory, the responses were based 
on existing knowledge or waste testing already available to the 
respondent. In discussing these results below, ``reporting frequency'' 
or ``frequency of occurrence'' refers to the number of times each 
constituent was reported to occur in a non-hazardous waste stream by a 
facility. The numbers reflect the total number of waste streams that 
were reported with identified constituents, not the number of 
facilities. Some waste streams were reported without any associated 
constituents.
    In survey data, respondents identified 45 of the 66 constituents 
occurring in their non-hazardous waste streams. Frequency of occurrence 
ranged from 127 for barium to one for o-xylene and benzyl alcohol. 
Twenty-nine of the 34 constituents we chose initially for modeling were 
among the 45. We initially modeled the top 22 in terms of reporting 
frequency and out of the top 26, we modeled 24. Five of the 
constituents we modeled were not identified by respondents as occurring 
in non-hazardous waste streams. These results support the 
interpretation that our initial approach to choosing constituents was 
appropriate.
    Finally we considered trichloroethene, which was one of the 66 
constituents, but was not initially chosen for risk modeling. We found 
there were TRI releases reported for trichloroethene, so we also looked 
at survey responses to find how often respondents identified it 
occurring in their waste streams. We found that trichloroethene was not 
reported in either non-hazardous or hazardous waste streams. We 
compared this to responses for several other widely used solvents. 
Several were reported in both non-hazardous and hazardous waste streams 
and the frequency of reporting was significantly higher in the 
hazardous waste streams. For example, toluene was reported in 38 non-
hazardous waste streams and 249 listed hazardous waste streams. Xylene 
was reported in 33 non-hazardous waste streams and 246 listed hazardous 
waste streams. Ethylbenzene was reported in 6 non-hazardous wastes and 
126 listed hazardous waste streams. Comparing ``no reported 
occurrence'' of trichloroethene in either non-hazardous or hazardous 
waste streams to the non-hazardous/hazardous reporting for other widely 
used solvents led us to conclude that trichloroethene is less likely to 
be a frequently occurring constituent in non-hazardous waste streams 
than other constituents that actually were reported in the survey as 
occurring in non-hazardous wastes.\12\ Therefore, we did not model 
trichloroethene. It is not a constituent considered as a basis for the 
concentration based listing.
---------------------------------------------------------------------------

    \12\ Also, generators should know if trichloroethene is in their 
wastes because it is a TC constituent (D040, trichloroethylene).
---------------------------------------------------------------------------

    We decided to add additional modeling constituents from those 
identified in the survey results rather than any of the five 
constituents for which we received additional data that would allow us 
to conduct risk modeling. We have no TRI data for any of the five 
constituents with late-arriving information. BRS data provided some 
evidence that chlorobenzene is associated with hazardous wastes from 
four paint facilities. In contrast, the survey provides actual 
reporting from paint manufacturers on the occurrence of constituents in 
their nonhazardous waste streams. We believe that BRS reporting 
associated with chlorobenzene at four facilities is less compelling 
than reporting frequency in the survey as a basis for adding additional 
constituents for risk modeling.
    Therefore, we added the following six constituents for risk 
modeling based on reported frequency of occurrence in non-hazardous 
waste streams: butyl benzyl phthalate with 26 occurrences; acrylamide 
with 22 occurrences; benzene with 11 occurrences; and m-, 
o-, and p-cresol isomers with 14 occurrences (for m-cresol and o-
cresol). We modeled all three cresol isomers because they are sometimes 
difficult to distinguish with available sampling methods and they often 
occur together. Also, all three isomers are TC constituents.
    In summary we modeled 43 constituents. There are several points to 
note concerning the constituents that we modeled:

     There are 11 metals on our list of modeling 
constituents, and we actually modeled 14 because we modeled 
elemental mercury and divalent mercury, chromium III and chromium 
VI, and nickel and nickel oxide. Metals exist in a wide variety of 
chemical species, and this may be an important factor in assessing 
the fate, mobility, and toxicity of metals in our risk analysis. For 
the metals noted above, we have sufficient information on mobility 
and toxicity to model different species. Metals are present in paint 
manufacturing wastes as simple metal salts, or the metal could be 
part of a larger organic or inorganic metal compound. For example, 
for lead there are a number of compounds used in paints, such as 
lead naphthenate, lead molybdate chromate, lead sulfate, lead 
chromate, lead oxide, etc. We believe that by modeling these 14 
metals, we are in fact representing a broader range of compounds 
that are likely to be used in paints. As discussed in the Section 
III.E.3 (see discussion on uncertainty in human health risk 
results), we recognize that the ionic forms of metals we modeled may 
over or under represent the mobility of many of these metal 
compounds. However, given that metal speciation may also change as 
the constituents move from the waste into the environment, we 
believe our modeling efforts are a reasonable approach to assessing 
the risks presented by the metals.
     Fifteen of the constituents are TC constituents. We 
chose to model these because we were concerned that risk-based 
levels derived from modeling might be lower than TC concentration 
levels. We had experience from the petroleum listing where one TC 
constituent, benzene, was present in the wastes below the TC 
concentration level and potentially could pose a risk, (see 63 FR 
42110, August 6, 1998). In addition, because we intended to conduct 
a multi-pathway risk assessment that would take into account direct 
and indirect risks from air and ground water as well as from 
ingestion of ground water, it was possible that risk-based 
concentrations for other exposure pathways might be lower than those 
for ingestion of ground water alone, which is the basis for the TC.
     Fifteen of the constituents are pigments; ten are 
biocides; 17 are solvents; five are binders; and two are driers (the 
numbers do not add up to the total number modeled because some 
constituents have more than one purpose).
     With the addition of the six new modeling constituents, 
we modeled 34 constituents with 3007 survey reported waste stream 
occurrences ranging from 127 to two. We modeled the top 30 in terms 
of reporting frequency in waste streams, with the exception of 
acetone (discussed below). We also completed modeling for the five 
constituents modeled initially but not reported in the survey, 
because there is a possibility that they may occur in the total 
universe of paint manufacturing wastes.
    We did not model acetone, although it was reported at 11 
occurrences, because it was removed from the TRI in 1995. It was 
removed from the TRI because ``* * * acetone: (1) Cannot reasonably 
be anticipated to cause cancer or neurotoxicity and has not been 
shown to be mutagenic and (2) cannot reasonably be anticipated to 
cause adverse developmental effects or other chronic effects except 
at relatively high dose levels.'' (Federal Register: June 16, 1995 
(Volume 60, Number 116), pp. 31643-31646.) On the same day, EPA also 
added acetone to a list of compounds excluded from the definition of 
a VOC under Title I of the Clean Air Act, based on an Agency 
determination that acetone has a negligible contribution to 
tropospheric ozone formation.


[[Page 10087]]


    Table III.E-2 lists all the constituents that we modeled, the use 
category that they fall under and their frequency of occurrence when 
they were reported in non-hazardous waste streams.

        TABLE III.E-2.--Constituents Modeled for Risk Assessment
------------------------------------------------------------------------
                                                     Weighted frequency
                                                      of occurrence in
         Constituent                 Purpose         non-hazardous waste
                                                           streams
------------------------------------------------------------------------
Barium \1\..................  Pigment.............  127.4
Zinc........................  Pigment/Biocide.....  126.8
Vinyl Acetate...............  Solvent/binder......  98.4
Ethylene Glycol.............  Solvent.............  90.0
Copper......................  Pigment/Biocide.....  86.7
Chromium III \1\............  Pigment.............  84.6
Chromium VI \1\.............  ....................  (Identified as
                                                     chromium in the
                                                     survey)
Cobalt......................  Pigment/drier.......  73.0
Styrene.....................  Binder..............  63.0
Formaldehyde................  Biocide.............  62.8
Lead \1\....................  Pigment/drier.......  58.2
Antimony....................  Pigment.............  45.9
Silver \1\..................  Pigment/biocide.....  45.6
Methanol....................  Solvent/biocide.....  40.0
Toluene.....................  Solvent.............  38.8
Methyl Ethyl Ketone \1\.....  Solvent.............  36.9
N-Butyl Alcohol.............  Solvent.............  35.6
Acrylonitrile...............  Binder..............  35.0
Cadmium \1\.................  Pigment.............  34.5
Xylene......................  Solvent.............  33.5
Nickel......................  Pigment.............  28.3
Nickel oxide................  Pigment.............  (identified as
                                                     nickel in survey)
Phenol......................  Solvent/biocide.....  28.0
Methyl Methacrylate.........  Binder..............  27.2
Butyl Benzyl Phthalate \2\..  Solvent.............  26.6
Acrylamide \2\..............  Binder..............  22.5
Dibutyl Phthalate...........  Solvent.............  22.0
m-Cresol \1,2\..............  Solvent.............  7.45
o-Cresol \1,2\..............  Solvent.............  7.45
p-Cresol 1,2................  Solvent.............  ....................
Methyl Isobutyl Ketone......  Solvent.............  11.8
Benzene 1,2.................  Solvent.............  11.0
Tin.........................  Pigment.............  9.0
Mercury \1\.................  Pigment/biocide.....  7.6
Divalent mercury............  Pigment/biocide.....  (Identified as
                                                     mercury in the
                                                     survey)
Ethylbenzene................  Solvent.............  6.1
Selenium \1\................  Pigment.............  5.1
Di(2-ethylhexyl) Phthalate..  Solvent.............  2.2
Chloroform \1\..............  Biocide.............  ....................
Methylene chloride..........  Solvent.............  ....................
2,4 dimethylphenol..........  Biocide.............  ....................
Pentachlorophenol \1\.......  Biocide.............  ....................
Tetrachloroethylene \1\.....  Solvent.............  ....................
------------------------------------------------------------------------
\1\ Indicates Toxicity Characteristic (TC) constituents.
\2\ Indicates constituents added to the risk assessment based on
  frequency of occurrence reported in the 3007 survey.

5. What Was EPA's Approach to Conducting Human Health Risk Assessment?
    Our human health risk analysis for the paint and coating waste 
streams estimates the concentrations of individual constituents that 
can be present in each waste stream and provide a specified level of 
protectiveness to human health and the environment. The human health 
risk assessment for the paints and coatings listing determination 
evaluates waste management scenarios that may occur nationwide. A 
national analysis that captures variability in meteorological and 
hydro-geological conditions was selected for this listing because paint 
manufacturing is widespread, and facilities that generate the waste 
streams of interest are found nationwide.
    This risk assessment is intended to limit the risk to individuals 
who reside near waste management units used for paint manufacturing 
waste disposal by determining the concentrations of particular 
constituents that can be managed in paint manufacturing wastes and 
remain below a specified individual target risk level.
    For this listing, we generated risk-based concentration limits in 
waste streams by estimating the concentration of a constituent that can 
be managed in the waste streams reported in the 3007 survey and remain 
below a target risk level for both cancer risk and noncancer human 
health hazards to 90% of the individuals living near waste management 
units handling paint manufacturing wastes. Human health impacts are 
expressed as estimates of excess lifetime cancer risk for individuals 
(called ``receptors'') who may be exposed to carcinogenic contaminants 
and as hazard quotients (HQ's) for those contaminants that produce 
noncancer health effects. Excess lifetime cancer risk is the 
probability of an individual developing

[[Page 10088]]

cancer over a lifetime as a result of exposure to a carcinogen. A 
hazard quotient is the ratio of an individual's chronic daily dose of a 
noncarcinogen to a reference dose (an estimate of daily exposure that 
is likely to be without appreciable risk or deleterious effects over a 
lifetime) for exposures to the noncarcinogen. For this listing, the 
Agency selected a target risk level for excess lifetime cancer risk for 
individuals exposed to carcinogenic (cancer-causing) contaminants of 1 
chance in 100,000 (1E-05). For constituents that are non-carcinogens, 
the Agency selected the measure of safe intake levels to projected 
intake levels, a hazard quotient (HQ), of HQ=1.
    The use of these risk levels is consistent with the EPA's hazardous 
waste listing policy and the target risk levels used in past hazardous 
waste listings (e.g., see 59 FR 24530, December 22, 1994). Risk levels 
themselves do not necessarily represent the sole basis for a listing. 
There can be uncertainty in calculated risk values and so other factors 
are considered in conjunction with risk in making a listing decision. 
EPA's current listing determination procedure uses as an initial 
cancer-risk ``level of concern'' a calculated risk level of 1E-05 and/
or environmental risk quotients (EQ's) of 1 at any one point in time. 
Waste streams for which risks are calculated to be 1E-04 or higher, or 
1 HQ or higher for any individual non carcinogen, or non carcinogens 
that elicit adverse effects on the same target organ, generally will be 
considered to pose a substantial present or potential hazard to human 
health and the environment and generally will be listed as hazardous 
waste. Such waste streams fall into a category presumptively assumed to 
pose sufficient risk to require their listing as hazardous waste. 
However, even for these waste streams there can in some cases be 
factors which could mitigate the high hazard presumption. Listing 
determinations for waste streams with calculated high-end individual 
cancer risk levels between 1E-04 and 1E-06 always involve assessment of 
additional factors. For today's proposed listing there are several 
factors that we considered in setting the risk level of concern, these 
included: (1) Certainty in the risk assessment methodology, (2) 
coverage by other regulatory programs, (3) damage cases, and (4) 
presence of toxicants with unquantifiable risks. We believe a target 
cancer risk level of 1E-05 and an HQ of 1 is appropriate for this 
listing, but we welcome comments and supporting data if there is a 
compelling reason for an alternative target.
    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 waste for each waste stream and waste 
management unit. We used three types of analyses to determine the risks 
associated with the management of paint manufacturing wastes: (1) A 
probabilistic analysis for all waste management scenarios; (2) a 
deterministic analysis for all waste management scenarios, and (3) a 
bounding analysis for on-site management of waste waters in treatment 
tanks. The results of the bounding analysis demonstrated that given the 
concentrations of constituents that we expect in paint manufacturing 
waste the risk generated from paint manufacturing wastes managed in on-
site tanks is not significant. The following sections describe the risk 
assessment.
    (1) Probabilistic Analysis (Monte Carlo Method). A probabilistic 
analysis calculates distributions of results (in this case protective 
waste concentrations for each constituent) by allowing some of the 
parameters used in an analysis to have more than one value. The model 
is run numerous times (for this analysis we ran the model 10,000 times) 
each time with different values selected from the distributions of 
input parameters. A parameter is any one of a number of inputs or 
variables (such as waste volume or distance between the waste 
management unit and the receptor) required for the fate and transport 
and exposure models and equations that EPA uses to assess risk. In the 
probabilistic analysis, we vary sensitive parameters for which 
distributions of data are available. Parameters varied for this 
analysis include waste volumes, waste management unit size, parameters 
related to the location of the waste management unit such as climate 
and hydro-geologic data, location of the receptor, and exposure factors 
(e.g., drinking water ingestion rates). In some cases, in order to 
maintain the inherent correlation between parameters, we treat multiple 
parameters as a single parameter for the purpose of conducting the 
analysis. We do this to prevent inadvertently combining parameters in 
our analyses in ways that are unrealistic. For example, we treat 
environmental setting (location) parameters such as climate, depth to 
groundwater, and aquifer type as a single set of parameters. We believe 
that, for example, allowing the climate from one location to be paired 
with the depth to groundwater from another location could result in a 
scenario that would not occur in nature.
    The probabilistic analysis is conducted using a Monte Carlo 
methodology. Monte Carlo analysis provides a means of quantifying 
variability 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 
probability distribution function ; (2) EPA made assumptions to 
simplify the analysis in cases where such simplifications would improve 
the efficiency of the analysis without significantly affecting the 
results; and (3) the analysis has not been shown to be sensitive to the 
value of the parameter, that is, even if the parameter varies, the 
resulting risk estimate does not vary significantly. The result of the 
probabilistic risk assessment is a distribution of risk-based 
concentration limits or ``listing levels.'' The EPA used the results of 
the probabilistic risk assessment to determine the regulatory listing 
levels.
    (2) Deterministic Analysis. The deterministic method uses single 
values for input parameters in the models to produce a point estimate 
of risk or hazard. We used the deterministic analysis to corroborate 
the results of the probabilistic analysis. For the deterministic 
analysis, we conduct both a ``central tendency'' and a ``high end'' 
deterministic risk assessment. These two analyses attempt to quantify 
the cancer risk or non-cancer hazard for the ``average'' receptor in 
the population (the central tendency risk) and the risk or hazard for 
individuals in small, but definable ``high end'' segments of the 
population (the high end risk). For central tendency deterministic risk 
analyses, we set all parameters at their central tendency values. For 
the paint and coatings risk assessment, the central tendency values 
generally are either mean (average) or 50th percentile (median) values. 
We use high end deterministic risk analyses to predict the risks and 
hazards for those individuals exposed at the upper range of the 
distribution of exposures. EPA's Guidance For Risk Characterization 
(EPA 1995) advises that ``conceptually, high end exposure means 
exposure above about the 90th percentile of the population 
distribution, but not higher than the individual in the population who 
has the highest exposure,'' and recommends that ``* * * the assessor 
should approach estimating high end by identifying the most sensitive 
variables and using high end values for a subset

[[Page 10089]]

of these variables, leaving others at their central values.'' As such, 
for the paint and coatings risk assessment, high end deterministic risk 
analyses, EPA established a set of the parameters most likely to 
influence the results of the assessment and set two of these parameters 
at a time to their high end values (generally 90th percentile values), 
and set all other parameters at their central tendency. The high-end 
deterministic analysis results are based on the two most ``sensitive 
parameters.'' These are the two parameters that when set at their high-
end values, generated the highest estimate of risk or hazard. These two 
most ``sensitive parameters'' vary according to the constituent and 
pathway evaluated. Appendix C of the risk assessment technical 
background document shows the two most sensitive parameters for each 
constituent and pathway. The EPA did not perform a sensitivity analysis 
on all parameters in this risk assessment. Rather, the parameters we 
selected to vary in the deterministic analysis were a smaller list 
based on sensitivity analyses performed on the same models for other 
listing determinations that determined the most sensitive parameters in 
our models. For the aboveground pathways, the parameters considered 
most likely to influence the results were the waste management unit 
surface area, the distance to the receptor, the meteorological station 
location, the sorption coefficients for the waste management unit and 
surficial soil, the receptor's exposure duration, and the volume of 
paint waste in the waste management unit. For the groundwater pathways, 
the parameters considered most likely to influence the results 
included; the distance to receptor well, depth to groundwater, the 
sorption coefficients, the receptor's exposure duration, and the volume 
of paint waste in the waste management unit. We did not use the 
deterministic analysis to develop today's proposed listing levels. The 
deterministic analysis is discussed in more detail in the Technical 
Background Document
    (3) Bounding Analysis. This type of analysis is very conservative 
but presents a quick and simple way to ``screen out'' potential 
scenarios of concern. A bounding analysis was used for the on-site tank 
scenario because, based on previous listing determinations, we did not 
think volatilization from the small volumes managed on-site was likely 
to generate a risk of concern. Similar to the deterministic and 
probabilistic analyses, the results of this risk assessment are the 
concentration of each constituent that can be managed in a tank and 
remain protective of human health. To conduct this analysis, the most 
sensitive or risk-driving parameters in the risk assessment tank model 
were varied between their high-end and central tendency values. The 
tank characteristics (i.e., capacity, surface area, and diameter) used 
in the analysis were based on the tank reported by the facility with 
the highest waste volume managed in a tank. The tank modeled was a 9000 
gallon, aerated waste water treatment tank. For the analysis we assumed 
there was no biodegradation in the tank. Similar to the deterministic 
assessment, two high-end parameters were varied at a time to determine 
the greatest ``high-end'' risk combination. The greatest reported waste 
volume was always used as one of the high-end parameters in the two 
parameter combination. The three other high-end parameters were varied 
between their high-end and central tendency values. These three 
parameters were; the distance from the waste management unit to the 
receptor, the duration that the receptor was exposed to the 
contaminant, and the meteorological location of the waste management 
unit. Based on the results of this analysis, we determined that the 
risk of waste water management in on-site tanks is insignificant for 
all constituents for one of three different reasons: (1) The estimated 
constituent concentration was greater than 1 million parts per million 
and therefore was not physically achievable, (2) the estimated 
constituent concentration was above the constituent's RCRA hazardous 
waste toxicity characteristic and the waste would already be classified 
as hazardous, or (3) we determined, based on knowledge of paint 
formulations, that non-hazardous paint manufacturing waste waters would 
never contain concentrations of the constituent at the level that may 
produce a risk (see Section for further discussion).
    a. What Waste Management Scenarios Were Evaluated? We evaluated 
four waste management units that represent plausible management 
scenarios that are likely destinations for paint and coating production 
waste streams. The modeled units include landfills, surface 
impoundments, on-site tanks, and off-site tanks. Section III.D 
describes in detail why these waste management units were selected for 
evaluation in the risk assessment. The waste management scenarios for 
each of these units were created using information reported by industry 
on the management of their non-hazardous paint manufacturing waste 
streams. In addition, we used information on the national distributions 
of waste management unit characteristics (e.g., size and waste 
capacity) collected with surveys conducted for other rulemakings to 
establish the characteristics of the off-site waste management units.
    (i) Type of Waste Management Units and Their Characteristics. We 
evaluated commercial industrial non-hazardous landfills, surface 
impoundments, and off-site tanks for the probabilistic and 
deterministic risk assessment. On-site tanks were also evaluated in a 
bounding analysis. With the exception of the on-site tanks, each type 
of waste management unit has a distribution that characterizes the 
units with respect to capacity and dimension (e.g., area and depth). 
These dimensions and operating characteristics are important 
determinants of the extent to which a contaminant may be released from 
the unit. Each type of waste management unit is assumed to have 
different operational lifetimes (between 20-50 years) and different 
lengths of time during which constituents are assumed to be released 
from the unit (between 30 and 200 years).
    For landfills and surface impoundments we evaluated the scenario of 
disposal in an unlined waste management unit and assessed the impact of 
the release of leachate from the landfill and surface impoundment to 
the groundwater. In addition, we assumed that the landfill did not have 
daily cover and the surface impoundment was open to the air. The 
primary source of data used to establish the characteristics of 
landfills and surface impoundments for both the probabilistic and 
deterministic analysis is our 1985 Screening Survey of Industrial 
Subtitle D Establishments.\13\ There are over 2,850 landfills reported 
in this survey. Since paint manufacturing facilities reported that 
their wastes were sent to off-site landfills, the characteristics the 
sixty-eight landfills reported in this survey to accept wastes in all 
or in-part from off-site sources were selected for characterizing the 
landfills included in this assessment.
---------------------------------------------------------------------------

    \13\ Schroeder, K.R. Clickner, and E. Miller, 1987. Screening 
Survey of Industrial Subtitle D Establishments. Draft Final Report. 
Prepared for the Office of Solid Waste, U.S. Environmental 
Protection Agency. Westat, Inc. Rockville, MD.
---------------------------------------------------------------------------

    There were 1,930 surface impoundments reported in the 1985 
Industrial D Screening Survey. Twenty-seven of these surface 
impoundments were not included in the distribution used for this risk 
assessment because the data were not complete in the survey or the 
facility indicated that the

[[Page 10090]]

surface impoundments were only used as backup storage units. A 
stratified random sample of 200 of the remaining 1,903 surface 
impoundments was used in the analysis. Data on the surface impoundment 
total capacity and total 1985 waste quantity were used in the analysis. 
Surface impoundments were assumed to be operated with varying degrees 
of aeration. Aeration characteristics were not a parameter reported in 
the Industrial D survey and in the absence of this data, the 
distribution of aeration characteristics from the tanks database 
(described below) was randomly applied to surface impoundments.
    For the evaluation of off-site management of waste waters in 
treatment tanks, a tank database was developed for this analysis that 
compiled flow rates, treatment methods, and tank volumes. The primary 
source for these data was EPA's 1986 National Survey of Hazardous Waste 
Treatment, Storage, Disposal, and Recycling Facilities (TSDR) 
Database.\14\ Although this database collected information on hazardous 
waste tanks, this database was used since it is the most comprehensive 
collection available of information on tank characteristics. Since 
similar treatment technologies are used for hazardous and non-hazardous 
waste we believe that the characteristics of non-hazardous tanks is not 
significantly different from hazardous tanks. This database is a result 
of a comprehensive survey of 2,626 TSDR facilities, on 1986 waste 
management practices and quantities. A subset of the data contained 
information on 8,510 tanks that received wastes from off-site. Since it 
was not computationally feasible to model all 8,510 of the tanks for 
this analysis, a sample from the tanks in this survey was used to 
develop the characteristics of off-site tanks. There were several 
criteria used in selecting a sample from the tanks in the 1986 survey. 
Some of the criteria used were: (1) Only those tanks reporting flow 
rates (demonstrating they were used for waste management) were included 
in the analysis, (2) only treatment tanks were considered in the 
analysis and tanks that were closed or covered were not included in the 
distribution, (3) no reported tanks with a volume the size of a drum or 
smaller were included since these are likely to be short-term units or 
containers. From all the tanks that met the above mentioned criteria, a 
sample of 200 tanks was drawn from the data that comprised the tank 
distribution. The sampling was conducted to preserve the range and 
distribution of tanks in the underlying database. To reflect emission 
characteristics associated with differences within the treatment tank 
category related to aeration intensity, three different tank categories 
were identified and modeled: high aerated treatment tanks, low aerated 
treatment tanks, and nonaerated (quiescent) treatment tanks. Examples 
of quiescent treatment tanks are clarifiers and filters (such as sand 
or mixed-media filters). In the absence of aeration, quiescent 
treatment tanks are still subject to small amounts of agitation during 
filling and emptying operations if the tank has above-surface intakes. 
Sorting the tanks in the database into these three categories was done 
using the data reported in the TSDR category.
---------------------------------------------------------------------------

    \14\ U.S. EPA. 1987. 1986 National Survey of Hazardous Waste 
Treatment, Storage, Disposal, and Recycling Facilities Database.
---------------------------------------------------------------------------

    (ii) Location of Waste Management Units. Determining the location 
of waste management units is important for the selection of 
environmental setting data (e.g., meteorological and hydrological data) 
for constituent fate and transport modeling. Since we do not know the 
location of all specific paint production waste disposal, we assumed 
that waste disposal locations are correlated with the location of the 
paint production facilities. We also assumed that nonhazardous waste 
from paint manufacturing facilities is disposed within reasonable 
transport distances of the facility. Therefore, we created a 
distribution of locations of paint manufacturing waste treatment and 
disposal facilities across the United States. The locations of waste 
management in the distribution are weighted according to the total 
dollar value of product shipments reported for a State. We assumed that 
the larger the total dollar value of shipments, the greater the volume 
of paint production in the State and we weighted the probabilistic 
analysis accordingly. In other words, the meteorological locations in 
States with the larger reported dollar value of paint shipments in the 
probabilistic analysis had more of the 10,000 iterations. The source of 
information on the dollar value of product shipments is the 1997 
Economic Census of Paint and Coating Manufacturing (U.S. Department of 
Commerce, 1999).\15\ The Census reported the dollar value of shipments 
made by paint manufacturing facilities by State. In all, 36 states 
reported paint production volumes on a dollar value basis. The Census, 
however, included only States for which facility data can be reported 
without disclosing confidential business information. Data cannot be 
reported if the population of paint manufacturing facilities is so 
small that confidentiality cannot be maintained if data were reported 
on a State level. Since the States not included in the 1997 Census may 
only have a few paint manufacturing facilities, not including these 
States does not impact this analysis. Locations for modeling were 
selected first for States according to the volume of paint manufactured 
and then by the general location of paint manufacturing facilities 
within the State. The EPA's 1997 Toxic Release Inventory was used to 
determine the possible location of the paint manufacturing facilities 
within a State. In many cases the majority of the paint manufacturing 
facilities were located in several clusters throughout a State. 
Therefore, in some cases several different meteorological stations and 
hydrological regimes within a single State were modeled. Forty-nine 
meteorological stations in 39 states were used in the risk assessment.
---------------------------------------------------------------------------

    \15\ U.S. Department of Commerce. 1999. Paint and Coating 
Manufacturing: 1997 Economic Census; Manufacturing Industry Series. 
EC97M-3255A. U.S. Census Bureau, Washington, D.C. August.
---------------------------------------------------------------------------

    (iii) Waste Volumes. In Part III, Section D, we explained how we 
identified waste volumes reported in the 3007 survey data that 
represent the distribution of volumes of non-hazardous waste being sent 
to non-hazardous landfills, surface impoundments, and tanks across the 
nation. We compiled distributions of waste solids sent to landfills and 
waste liquids sent to tanks and surface impoundments. Each waste volume 
has a corresponding weighting factor that represents the number of 
facilities in the total sampling population that sent a particular 
waste volume to a particular type of waste management unit. The risk 
assessment modeling requires the use of volumes going to a waste 
management unit, therefore the waste quantities here are presented as 
volumes (in gallons) as opposed to mass (in tons), the waste descriptor 
that has been used in previous sections of this preamble. For the 
probabilistic risk assessment the weights were used to determine the 
frequency a waste volume was evaluated in the 10,000 iterations 
comprising the Monte Carlo analysis. In general, the waste volumes 
reported were relatively small when compared to the total waste 
capacity of the waste management units. For the probabilistic analysis, 
the volumes of emission control dust going to a landfill range from 40 
gallons to 78,650 gallons, the volumes of all the solids going to a 
landfill range from 5 gallons to 426,739

[[Page 10091]]

gallons, and the range of aqueous wastes that can be managed in either 
a surface impoundment or off-site tank is from 151 gallons to 104,225 
gallons. For the deterministic analysis, the 50th and 90th percentile 
waste volumes from each of the volume distributions was used. These 
volumes are shown in Table III.E-3 below.

                           Table III.E-3.--Waste Volumes Used for the Risk Assessment
----------------------------------------------------------------------------------------------------------------
                                                                     Emission        Combined
                           Percentile                              control dust       solids       Liquid wastes
                                                                   (gallons/yr)    (gallons/yr)    (gallons/yr)
----------------------------------------------------------------------------------------------------------------
Minimum.........................................................              40               5             151
50th............................................................             644             375          12,000
90th............................................................          58,340          43,270          26,752
Maximum.........................................................          78,650         426,739         104,225
----------------------------------------------------------------------------------------------------------------

    b. What Exposure Scenarios Did EPA Evaluate? Prior to conducting 
the risk assessment, we had to establish that there is a plausible 
scenario under which a receptor might be exposed to contaminants 
managed in paint manufacturing wastes. Establishing this scenario 
required that we determine: how the waste is managed, how contaminants 
can be released from the waste management unit, how contaminants can be 
transported in the environment to a point of contact with a receptor; 
and how a receptor can be exposed to a contaminant. For the reasons 
discussed in Part II, Section D, we chose to evaluate the risk 
attributable to management of paint production wastes in uncovered 
biological treatment tanks, uncovered and unlined surface impoundments, 
and uncovered and unlined non-hazardous industrial landfills.
    (i) Release Scenarios From Waste Management Units. We determined 
that releases from all of the waste management units (tanks, landfills, 
and surface impoundments) can occur through release of vapor emissions 
to the air. In addition, particulate emissions to the air from solids 
disposed in landfills is feasible. For the landfill and surface 
impoundment waste management scenarios, it was also determined that 
releases could occur through leaching of waste into the subsurface. We 
assumed that tanks were sufficiently impermeable that they were highly 
unlikely to release volumes of waste sufficient to pose an unacceptable 
groundwater risk. Therefore it was not necessary to develop risk-based 
concentrations for the groundwater pathway. The mechanisms and pathways 
we evaluated are as follows:

    1. Vapor emissions can remain dispersed in the air, or can be 
deposited through wet and dry deposition. Specifically, we modeled 
the concentration of vapor phase contaminants in air, the diffusion 
of vapor phase contaminants into plants, the diffusion of vapor 
phase contaminants into surface water, wet deposition of vapors onto 
soils and surface water, dry deposition of vapors onto soils, and 
dry and wet vapor deposition onto plants.
    2. Particulate emissions can remain dispersed in the air or be 
deposited through wet deposition (in precipitation) or dry 
deposition (particle settling). We assume that particulates may be 
deposited onto soil and surface water through both wet and dry 
deposition, and onto plants through dry deposition.
    3. Leachate can migrate through the unsaturated zone to the 
saturated zone, where contaminants are transported in groundwater to 
drinking water wells.
    4. Constituents deposited onto soils from vapor and particulate 
emissions can erode into nearby surface water bodies.
    (ii) Routes of Exposure. Human receptors may come into contact with 
the chemicals of concern present in environmental media through a 
variety of routes. In general, exposure pathways are either direct, 
such as inhalation of ambient air, or indirect, such as consumption of 
contaminated food products. For this risk assessment, human receptors 
may come into contact indirectly with vapors that diffuse into 
vegetation, particulates that are deposited onto vegetation, or 
contaminants that are taken up by vegetation from the soil and ingested 
in fruits and vegetables, as well as exposure to contaminated beef and 
dairy products derived from cattle which have ingested contaminated 
forage, silage, grain, and surface soil. Receptors that ingest fish may 
also indirectly come into contact with contaminants in air-borne vapors 
and particulates (through vapor diffusion into surface water, vapor 
deposition onto surface water, and particulate deposition onto surface 
water) and runoff and eroded soil that has entered the surface water 
body.
    (iii) Receptors Evaluated. Most paint facilities transport wastes 
generated during paint production to waste management units located 
off-site. For the off-site waste management units identified in the 
RCRA 3007 survey (e.g., landfills) it is not uncommon to have 
residential, recreational, or agricultural land uses surrounding the 
management unit. As such, we determined that the following receptors 
reasonably represent the types of individuals that may be located near 
the waste management units and could be exposed to contaminants in 
paint production wastes:
     An adult resident,
     The child of a resident,
     A farmer,
     The child of a farmer,
     A recreational fisher.
    Some of these receptors might be exposed through several pathways 
and some might only be exposed through one pathway. Receptors are 
evaluated for exposures with respect to chemicals present in ambient 
air (both vapors and particles), soils, groundwater, fruits and 
vegetables, beef and dairy products, and fish. The magnitude of the 
exposure received by a receptor is dependant on the chemical and 
environmental setting modeled. The following sections describe our 
primary assumptions regarding the characteristics and activities of 
each of the receptor types, and the routes by which each receptor is 
exposed.
    Adult Resident and Child of the Resident. We assume that an adult 
and child can reside near the waste management unit. The residential 
receptors inhale vapors and particulate matter that are dispersed in 
the ambient air. We assume that household water is supplied to the 
residential receptors by a private groundwater well that is located 
near their home. The adult resident and the child of the resident, 
drink water that comes from the well. We assume that the adult resident 
inhales vapors that are emitted from the water used for showering. The 
residential receptors do not ingest foods that are grown in the 
vicinity of their home, however, they do incidentally ingest surface 
soil from their yard. Groundwater exposures were only considered for 
the residential scenario. It was assumed that contaminated groundwater 
was not used for crop irrigation or stock water for cattle. In 
addition, groundwater recharge and

[[Page 10092]]

subsequent contamination of fish was not considered. In general, the 
exposure to contaminants through the air pathway and contaminants in 
the groundwater occurs at very different time scales due to the long 
transport times associated with most chemicals in the groundwater 
medium. For example, transport of contamination to a receptor in 
ambient air can happen within a matter of hours while transport of 
contaminants to a residential well in groundwater can take hundreds, 
even thousands of years. As such, we did not add together the exposures 
from both the air pathway and groundwater pathway. There were a few 
organic constituents where the contaminant did travel to the receptor 
well in less than 50 years, however, we did not add together the 
exposures from these two pathways since the receptor locations for the 
groundwater and air pathways are different, therefore adding the 
exposures is not appropriate. We did add together the exposures from 
different routes for each receptor. For example, for carcinogens, we 
considered the additive exposure for an adult resident from ingestion 
of groundwater and inhalation of vapors while showering when it was 
appropriate.
    Adult Farmer and Child of the Farmer. We assume that a farmer 
raises fruits, exposed vegetables, root vegetables, beef cattle, and 
dairy cattle in an agricultural field located near the waste management 
unit. Approximately 42 percent of the exposed vegetables, 17 percent of 
the root vegetables, 33 percent of the exposed fruits, 3 percent of the 
protected fruits, 49 percent of the beef, and 25 percent of the dairy 
products eaten by the farmer are grown/raised on the farmer's 
agricultural field. We assume that the farmer and the child of the 
farmer incidentally ingests soil from his/her yard.
    Recreational Fisher. We assume that the residential receptor may be 
a recreational angler. Approximately 33 percent of the fish eaten by 
the fisher are from a stream located near the waste management unit. 
The fisher's other characteristics and activities are the same as those 
of the adult resident.
    We establish the locations of all the receptors relative to waste 
management units based on information obtained from previous national 
surveys. These surveys are discussed below. Exposure to groundwater 
occurs through the use of water from drinking water wells, and exposure 
via non-groundwater pathways occurs through releases to the air. 
Therefore, ``distance to receptor'' for the groundwater pathways is the 
distance to the drinking water well that the receptor is using (the 
``receptor well''). ``Distance to the receptor'' for non-groundwater 
pathways is the distance to the residence where the receptor is 
inhaling air or contacting the soil or the distance to the field where 
the receptor is growing crops or raising livestock. Consequently, we 
use different databases to establish ``distance to receptor,'' 
depending on whether we are evaluating a groundwater or a non-
groundwater pathway.
    For analysis of the air pathways risks in the deterministic 
analysis we assume that the receptors live either 75 meters (m) (high 
end) or 300 m (central tendency) from the waste management unit. The 
distance of 250 feet (ft) (approximately 75 m) is based on the actual 
measured distance to the nearest resident for the worst-case facility 
evaluated in the risk assessment conducted to support the 1990 
``Hazardous Waste Treatment, Storage, and Disposal Facilities-Organic 
Air Emissions Standards for Process Vents and Equipment Leaks Final 
Rule'' (55 FR 25454), and was used as distance to the nearest resident 
for that rulemaking. In the same risk assessment, we identified the 
receptor distance of 1000 ft (approximately 300 m) as the median 
distance in a random sample of distances to the nearest residence. For 
the deterministic analysis, we used the average air concentration and 
deposition values around the circumference at both 75 m and 300 m. For 
the probabilistic analysis, we identified the distance of 300 m as the 
median or central tendency distance from the WMU to the receptor. We 
then used the 75 m distance as a 10th percentile closest location 
(high-end) and created a normal distribution of receptor distances to 
sample from. The lowest and highest receptor distances (0 and 100 
percentile) of the distribution were constrained to be between 50 and 
550 m. The distance from the WMU boundary to the resident location was 
randomly selected from this distribution. In addition, the receptors in 
the probabilistic analysis are located in 16 directions around the 
entire circumference (360 degrees) of the waste management unit.
    For evaluating the groundwater pathway in the deterministic 
analysis, we assume that a receptor well is located 102 m (high end) or 
430 m (central tendency) from the waste management unit, and that the 
receptor well is located on the centerline of the plume (high end) or 
halfway between the centerline and the edge of the contaminant plume 
(central tendency). The 102 m distance is the 10th percentile value in 
the distribution of distances derived from our 1988 survey of Solid 
Waste (Municipal) Landfill Facilities. The 430 m value is the 50th 
percentile value in that same distribution. For the probabilistic 
analysis, the distance from the waste management unit to the receptor 
well is based on the complete distribution of distance to the receptor 
well reported by the survey respondents, and ranges from 0.6 m to 1610 
m. For the Monte Carlo analysis we assume that the receptor well is 
located anywhere within the contaminant plume.
    The Technical Background Document for the risk assessment provides 
a complete discussion of the values of additional parameters that 
define the characteristics of each receptor, such as the amounts of 
contaminated food and water they ingest, their inhalation rates, and 
how long they live near the waste management unit (i.e., their exposure 
duration).
    c. How did EPA Quantify Each Receptors Exposure to Contaminants? 
Exposure is the condition that occurs when a contaminant comes into 
contact with the outer boundary of the body, such as the mouth and 
nostrils. Once we establish the concentrations of contaminants at the 
points of exposure, we can estimate the magnitude of each receptor's 
contaminant dose. Dose is the amount of contaminant that crosses the 
outer boundary of the body and is available for adsorption at internal 
exchange boundaries (lungs, gut, skin). For example, for exposure to a 
carcinogen through ingestion of contaminated drinking water, dose is a 
function of the concentration of the contaminant in the drinking water 
(exposure point concentration), as well as certain exposure factors, 
such as how much drinking water the receptor consumes each day (the 
intake rate), the number of years the receptor is exposed to 
contaminated drinking water (the exposure duration), how often the 
receptor is exposed to contaminated drinking water (the exposure 
frequency), the body weight of the receptor, and the period of time 
over which the dose is averaged. Our primary source of exposure factors 
is the ``Exposure Factors Handbook'' published by EPA in August 1997. 
For probabilistic analyses, we used the distributions of exposure 
factor values provided in the Exposure Factors Handbook. The one 
situation where we do not develop an expression of dose is the case 
where we use the Reference Concentration (RfCs) to estimate noncancer 
hazard for the inhalation exposure route. In this situation, we 
calculate noncancer hazard from concentration of the contaminant in air

[[Page 10093]]

and the RfC, without considering exposure factors other than those 
inherent in the RfC (e.g., inhalation rate, body weight).
    Children are an important sub-population to consider in a risk 
assessment because they are likely to be more highly exposed to 
contaminants in the environment than adults. Compared to adults, 
children eat more food and drink more fluids per unit of body weight. 
This higher rate coupled with a lower body weight can result in higher 
average daily dose than adults experience. To evaluate childhood 
exposure for this analysis, a child of a resident and a child of a 
farmer whose exposure begins between the ages of 1 and 6 was evaluated. 
For the probabilistic assessment, a start age was randomly chosen 
between the ages of 1 and 6. The child was then aged for the number of 
years defined by the exposure duration. As children mature, however, 
their physical characteristics and behavior patterns change. To capture 
these changes in the analysis, the life of a child was divided into 
several cohorts: Cohort 1 (ages 1-5), Cohort 2 (ages 6 to 11), cohort 3 
(ages 12 to 19), and cohort 4 (ages 20 to 70). Each cohort has a 
discrete value (for a deterministic assessment) and a distribution (for 
a Monte Carlo analysis) of exposure parameters that are required to 
calculate exposure to an individual. The exposure parameter 
distributions for each cohort reflect the physical characteristics and 
behavior patterns for that age range.
    d. How Did EPA Predict The Release and Transport of Constituents 
From a Waste Management Unit to Receptor Locations? We conduct 
contaminant fate and transport modeling and indirect exposure modeling 
to determine what the concentrations of contaminants will be in the 
media that the receptor comes into contact with. These concentrations 
are called ``exposure point concentrations'' (that is, they are the 
contaminant concentrations at the point where the receptor is exposed 
to the contaminants.) There are a number of computer-based models and 
sets of equations that we use to predict exposure point concentrations. 
In the following sections we briefly discuss these models and equations 
and their application in the risk analyses.
    (i) Landfill Partitioning Model. The landfill model is designed to 
simulate the gradual filling of an active landfill and the long-term 
releases from the active and closed landfill cells. The design assumes 
that the landfill is composed of a series of vertical cells of equal 
volume that are filled sequentially. We assumed that each cell requires 
one year to be filled. The formulation of the landfill model is based 
on the assumptions that the contaminant mass in the landfill cells 
might be linearly partitioned into the aqueous, vapor, and solid 
phases. The partitioning coefficients are based on those reported in 
literature, and are listed in the risk assessment's Technical 
Background Document. The model simulates the active lifetime of the 
landfill (30 years) and continues simulating releases until less than 
one percent of the initial mass is left or for a total of 200 years, 
whichever occurs first. We assume that the landfill has minimal 
controls with no liner and no daily cover. However, we assumed that 
there is no runoff and erosion from the unit. The cover at closure is a 
soil cover that still permits volatilization. We used the highest 9-
year average leachate concentration predicted by the partitioning model 
as input into EPA's Composite Model for Leachate Migration with 
Transformation Products (discussed in Section III.E(b)(vii)).
    Based on the design assumptions above, we simulated the annual 
release of chemical mass by leaching to the unsaturated zone underneath 
the landfill, volatilization to the air pathway, and particle emissions 
to the air pathway from wind erosion and truck movement during the 
active lifetime. It is assumed that the contaminant mass emitted as a 
particulate from the landfill is sorbed to particles in the waste. The 
model estimates the emission rate of contaminant mass adsorbed to 
particle sizes less than 30 micrometers (m). The amount of 
contaminant mass emitted is assumed to be distributed between four 
particle size categories, 30 to 15 m (40%), 15 to 10 
m (10%), 10 to 2.5 m (30%), and less than 2.5 
m (20%).\16\ While the emission control dust may be comprised 
primarily of the smaller size particles, we assumed that the waste 
material becomes mixed with other wastes and soils before being 
released as a particulate, therefore the particle size distribution 
used for estimating the particulate releases represent the range of 
particles sizes for all the wastes that may be in a landfill. We did 
not attempt to assess possible risks from short-term releases of 
unmixed dust particles that might occur during initial placement of 
wastes into the landfill cells. However, we do not believe such 
releases are likely to be significant for several reasons: (1) Dusts 
sent to landfills are typically contained, and are thus unlikely to 
cause large scale releases when placed in a landfill, (2) dust volumes 
are relatively small, especially in comparison to the size of 
commercial offsite landfills, and would likely be covered with other 
wastes at the landfill in a short time period, and (3) significant 
dusting would be minimized by both typical operating practices at 
landfills (e.g., dust suppressant activities), as well as regulations 
controlling air releases (e.g., see: Federal regulations for daily 
cover for municipal landfills at 40 CFR 258.21; widespread State 
requirements for cover at non-municipal Subtitle D,\17\ and 
requirements under State Implementation Plans approved pursuant to 
section 110 of the CAA).
---------------------------------------------------------------------------

    \16\ ``Compilation of Air Pollutant Emission Factors,'' AP-42, 
Section 13.2.5: Industrial Wind Erosion, U.S. Environmental 
Protection Agency, Office of Air and Radiation and Office of Air 
Quality Planning and Standards, September 1995.
    \17\ U.S. Environmental Protection Agency, Office of Solid 
Waste, State Requirements for Industrial Non-Hazardous Waste 
Management Facilities, October 1995.
---------------------------------------------------------------------------

    In addition, we simulated losses of mass through both anaerobic and 
aerobic biodegradation and hydrolysis within the landfill. We did not 
simulate the transport of constituents from the landfill as non-aqueous 
phase liquids (NAPL's). However, we do not believe that the waste 
streams evaluated for the landfill scenario will form NAPL's (see 
Section IV E). In addition, due to the variability of waste stream 
characteristics across the paint industry, it is impossible to know the 
exact composition of the waste matrices (e.g., the constituents present 
and the exact constituent concentrations), therefore, modeling did not 
take into account the effect of managing multiple solvents in the same 
waste stream. The management of multiple solvents in a waste may create 
a ``co-solvency effect'' where the solubility of a solvent may be 
increased due to the presence of other solvents.
    The partitioning model incorporates other assumptions intended to 
improve the efficiency of the model. These assumptions are described in 
detail in the risk assessment technical background document. The 
assumptions include the lack of lateral transport between cells, 
simulation of only a single cell and then aggregation of results based 
on the time each cell is filled, and the assumption that waste is added 
at a constant concentration at a constant rate.
    (ii) Surface Impoundment Partitioning Model. The surface 
impoundment model simulates the disposal of liquid wastes in an unlined 
surface impoundment and the releases of chemicals during the lifetime 
of the

[[Page 10094]]

unit. The highest 9-year average leachate concentration is then used as 
input into EPA's Composite Model for Leachate Migration with 
Transformation Products (see section vii) which estimates the movement 
of the plume through the saturated and unsaturated zone over a 10,000 
year time period. Runoff and erosion from the unit do not occur because 
we assume the impoundment is a sink in the watershed. We assume that 
there is no liner other than native soils and that the unit is not 
covered. The model assumes that the waste in the impoundment consists 
of two phases: Aqueous liquid and sediment. The model does not simulate 
any additional phases, such as non-aqueous phase liquids (NAPL's). 
However, we do not believe that NAPL formation is likely in the wastes 
evaluated for this listing (see Section IV E). The model simulates the 
changes at the bottom of the impoundment over time as settled solids 
fill pore space in native soils and act to reduce chemical transport to 
underlying soils and groundwater. In addition, a fraction of each 
surface impoundment is aerated, which enhances biodegradation and 
increases volatilization of some chemicals. The surface impoundment is 
assumed to operate 50 years and then undergoes clean closure (that is, 
all the waste is removed from the unit). Based on the design 
assumptions, the surface impoundment module simulates annual release of 
leachate to the unsaturated zone and volatile emissions to the air. The 
model does not account for redeposition of volatiles into the unit from 
precipitation. The model accounts for several biological, chemical, and 
physical processes including hydrolysis, volatilization, sorption as 
well as settlement, resuspension, growth and decay of solids, activated 
biodegradation in the liquid phase (that is, a higher rate based on the 
amount of biomass present) and hydrolysis and anaerobic biodegradation 
in the sediments.
    (iii) Tank Emissions Model. The tank model simulates time-varying 
releases of constituents to the atmosphere. The tank unit only has 
volatile emissions (no particulate emissions) and the tank is assumed 
to have an impervious bottom so that there is no contaminant leaching. 
The treatment tank is divided into two primary compartments: a 
``liquid'' compartment and a ``sediment'' compartment. Mass balances 
are performed on these primary compartments at time intervals small 
enough that the hydraulic retention time in the liquid compartment is 
not significantly impacted by the solids settling and accumulation. In 
the liquid compartment, there is flow both in and out of the WMU. 
Solids generation occurs in the liquid compartment due to biological 
growth; solids destruction occurs in the sediment compartment due to 
sludge digestion. Using a well-mixed assumption, the suspended solids 
concentration within the WMU is assumed to be constant throughout the 
tank. However, some stratification of sediment is expected across the 
length and depth of the WMU so that the effective total suspended 
solids (TSS) concentration within the tank is assumed to be a function 
of the WMU's TSS removal efficiency rather than equal to the effluent 
TSS concentration. The liquid (dissolved) phase contaminant 
concentration within the tank, however, is assumed to be equal to the 
effluent dissolved phase concentration (i.e., liquid is well mixed). 
The tank model does not consider separate non-aqueous phase liquid 
(NAPL) in the tank that might exist if a constituent is above its 
solubility limit. We do not believe that constituents managed in paint 
production waste will have high enough concentrations in waste waters 
to form an oily film layer on top of the tank. As such, we believe the 
modeling performed with this tank model is appropriate.
    (iv) Air Dispersion and Deposition Model. The atmospheric modeling 
performed for this risk assessment provides annual average estimates of 
air concentrations of chemicals released from the waste management 
units and annual deposition rate estimates for vapors and particles at 
various receptor points in the areas of interest. The chemicals that 
are emitted are either in the form of volatilized gases or fugitive 
dust. The simulated air concentrations are used to estimate biological 
uptake from plants and human exposures due to direct inhalation. The 
predicted deposition rates are used to determine chemical loadings to 
watershed soils, farm crop areas, and surface waters. The atmospheric 
concentration and deposition of chemicals were determined through a 
steady-state Gaussian plume modeling approach using the Industrial 
Source Complex-Short Term (ISCST3) model. Each of the waste management 
unit types were modeled as an area source with ISCST3. ISCST3 provides 
hourly meteorological data and estimates of contaminant concentration, 
dry deposition (particles only) and wet deposition (particles and 
gases) for user-specified averaging periods. Dry deposition of vapors 
was also calculated, but outside the dispersion model. Annual averaging 
periods were used for this analysis. These long averaging times are 
consistent with the use of chronic benchmarks in this analysis. The 
dispersion model uses information on meteorology (e.g., wind speed and 
direction, temperature) to estimate the movement of constituents 
through the atmosphere. Modeling was conducted using five years of 
hourly data obtained from 49 representative meteorological stations 
throughout the country. Meteorological stations were selected based on 
the location of paint manufacturing facilities.
    Currently, algorithms specifically designed to model the dry 
deposition of gases have not been verified for the specific compounds 
in question (primarily volatile organics). In place of algorithms, we 
used a transfer coefficient to model the dry deposition of gases. A 
concern with this approach is that the deposition is calculated outside 
the model. As a result, the mass that we estimate deposits on the 
ground from the plume is not subtracted from the air concentrations 
estimated by ISCST3. This results in a slight non-conservation of the 
mass in the system.
    Due to the complexity of the analysis, it was not computationally 
feasible to run ISCST3 on an hourly basis for the lifetime of all the 
unit configurations. To reduce the computational burden, we made 
several simplifications to the air modeling. The dispersion model is 
sensitive to the surface area of the waste management unit. In order to 
make the dispersion modeling computationally feasible, we divided the 
different waste management unit configurations into area-based bins 
that represented the distribution of surface areas for each of the 
waste management unit types. For each waste management unit type, the 
median area for each bin was input into ISCST3 and modeled at each of 
the 49 meteorological stations. For tanks, each area-height combination 
was modeled for each of the 49 meteorological locations. For any 
specific unit, the median air concentration and deposition values for 
the bin that most closely represented the specific unit's surface area 
was used. Another simplification used in the dispersion modeling is 
that a scavenging coefficient for all gases was used based on 
approximating the gases as very small particles. This approach 
eliminates the need for running ISCST3 for each specific chemical, thus 
reducing the overall runtime. This simplification might lead to 
underprediction of wet deposition for some gases and over-prediction 
for others depending on the Henry's Law coefficient of the gas.

[[Page 10095]]

    (v) Overland Transport Model. Addition of constituents to soils, 
called constituent loading, can result from atmospheric deposition and 
overland movement of constituents. The primary loading mechanisms of 
constituents onto soils is by wet and dry deposition predicted with the 
dispersion model. This constituent deposition was predicted based on 
the average air concentration and deposition flux for both the buffer 
area and the agricultural field. We assumed that there was no erosion 
and runoff from the WMU to the surrounding soils since we assumed that 
the landfill and surface impoundment were below grade. However, erosion 
and runoff (overland transport) were evaluated to predict the movement 
of deposited contaminants onto agricultural fields and into nearby 
water bodies. Five constituent losses in the surface soils were 
considered: (1) Leaching of the chemical due to precipitation; (2) 
erosion of the chemical laterally along with the soil due to water; (3) 
runoff of the dissolved chemical with the lateral flow of water; (4) 
biodegradation of the chemical in situ; (5) volatilization losses of 
the chemical. The Universal Soil Loss Equation (USLE) was used to 
estimate soil erosion losses. The USLE is an erosion model originally 
designed to estimate long-term average soil erosion losses from an 
agricultural field having uniform slope, soil type, vegetative cover, 
and erosion-control practices. We used a modified form of the USLE to 
estimate the mass of soil lost per year per unit from the soils around 
the waste management unit and deposited in the runoff directly onto the 
receptor site (agricultural field and residential lot) and into a 
nearby stream. We assume the receptor location is between the waste 
management unit and the surface water body. The area around the waste 
management unit is considered for the purposes of our analysis to be an 
independent, discrete drainage subbasin that is at steady-state. We 
estimate the soil erosion load from the subbasin to the surface water 
body using a distance-based sediment delivery ratio, and consider that 
the sediment not reaching the surface water body is deposited evenly 
over the area of the subbasin. Using equations, we estimate contaminant 
contributions to the surface water body and the receptor soil. Soils 
were characterized within a 20 mile radius around each meteorological 
station using data obtained from the 1994 U.S. Department of 
Agriculture's State Soil Geographic Data Base and other relevant 
sources that are described in Appendix I of the risk assessment's 
Technical Background Document.
    (vi) Surface Water Model. We assume that fish are exposed to waste 
constituents in surface water. Specifically our modeling assumes that 
fish are exposed to contaminants in the water column, contaminants 
sorbed to suspended solids in the water column, and contaminants 
associated with the bed sediment in the surface water body. The beef 
cattle and dairy cows are exposed to both dissolved and suspended 
constituent concentrations in the surface water. The model accounts for 
four ways in which contaminants may enter the surface water body: (1) 
Contaminants may be sorbed to eroded soils that enter the surface water 
body, (2) contaminants may be dissolved in runoff that enters the 
surface water body, (3) contaminants may be bound to airborne particles 
that are deposited on the surface water body, and (4) vapor phase 
contaminants in air may be deposited on the surface water body in 
precipitation (that is, wet deposition of vapor phase contaminants). 
The model also accounts for processes that remove contaminants from the 
surface water body. These include: (1) Volatilization of contaminants 
that are dissolved in the surface water body and (2) burial of 
contaminants in the sediment at the bottom of the surface water body. 
The model assumes that the impact to the water body is uniform, which 
is more realistic for smaller water bodies than for larger ones. The 
model estimates the concentrations of contaminants in the water column 
and bed sediment. We used the water column or bed sediment 
concentrations and bioconcentration factors or bioaccumulation factors. 
The water body used in this analysis is a stream located down gradient 
of the WMU. Depending on the receptor scenario that is evaluated, the 
stream is either adjacent to the buffer area (the area that separates 
the WMU from the human receptor locations) or is located adjacent to 
the agricultural field on the side farthest from the WMU. For modeling 
purposes, the stream is shaped as a rectangle 5.5 m wide and as long as 
the width of the agricultural fields. The assumption is that the stream 
is a typical third-order fishable stream. The stream segment modeled in 
this assessment is assumed to be homogeneously mixed with a depth of 
0.21 meters (including water column and benthic sediments) and has a 
flow of 0.5 m/s. This stream is the smallest water body that would 
routinely support recreational fishing of consumable fish. Because we 
modeled a small stream with a constant flow rate, the stream scenario 
is a conservative (environmentally protective) estimate of the 
constituent concentration in a surface water body that results from 
soil runoff and air deposition.
    (vii) Groundwater Model. We used EPA's Composite Model for Leachate 
Migration with Transformation Products (EPACMTP) to model the 
subsurface and transport of contaminants that leach from the waste 
management units (landfills and surface impoundments) and migrate to a 
residential drinking water well. We assume that the soil and aquifer 
are uniform porous media and that flow and transport is described by 
Darcy's law and the advection-dispersion equation, respectively. 
EPACMTP accounts for the following processes affecting contaminant fate 
and transport: Advection, hydrodynamic dispersion, equilibrium sorption 
by the soil and aquifer solids (both in the unsaturated and saturated 
zones), and contaminant hydrolysis. EPACMTP does not account for 
preferential pathways such as fractures, macropores, or facilitated 
transport (i.e., any chemical process that has the potential to speed 
the transport of a pollutant beyond what is expected), which may 
increase the migration of constituents.
    The groundwater pathway consists of two components: Flow and 
transport in the vadose zone (that is, the unsaturated zone directly 
below the unit), and flow and transport in the saturated zone. The 
primary transport mechanisms in the subsurface are downward movement 
along with infiltrating water flow in the unsaturated zone and movement 
along with ambient groundwater flow in the saturated zone. The 
advective movement in the unsaturated zone is one-dimensional, while 
the saturated zone module accounts for three-dimensional flow and 
transport. The model also considers mixing due to hydrodynamic 
dispersion in both the unsaturated and saturated zones. In the 
unsaturated zone, flow is gravity-driven and prevails in the vertically 
downward direction. Therefore, the flow is modeled in the unsaturated 
zone as one-dimensional in the vertical direction. It is also assumed 
that transverse dispersion (both mechanical dispersion and molecular 
diffusion) is negligible in the unsaturated zone. This assumption is 
based on the fact that lateral migration due to transverse dispersion 
is negligible compared with the horizontal dimensions of the WMUs. In 
addition, this assumption is environmentally protective because it 
allows the leading front of the constituent plume to arrive at the 
water table with greater peak concentration.

[[Page 10096]]

    In the saturated zone, the movement of constituents is primarily 
driven by ambient groundwater flow, which in turn is controlled by a 
regional hydraulic gradient and hydraulic conductivity in the aquifer 
formation. The model does take into account the effects of infiltration 
from the waste source as well as regional recharge into the aquifer. 
The effect of infiltration from the waste source is to increase the 
groundwater flow in the horizontal transverse and vertical directions 
underneath and in the immediate vicinity of the waste source as may 
result from groundwater mounding. This three-dimensional flow pattern 
will enhance the horizontal and vertical spreading of the plume. The 
effect of regional recharge outside of the waste source is to cause a 
downward dip in the movement of the plume as it moves in the 
downgradient groundwater flow direction.
    In addition to advective movement along with groundwater flow, the 
model simulates mixing of contaminants with groundwater due to 
hydrodynamic dispersion, which acts in the longitudinal, (i.e., along 
the groundwater flow direction), as well as in horizontal and vertical 
transverse directions. The rate of movement of contaminants may be 
strongly affected by sorption reactions in both the unsaturated and 
saturated zone. The effect of sorption is expressed in a retardation 
factor, which is directly related to the magnitude of the constituent-
specific KD value (K.C. in the case of 
organdies). Constituents with a zero or low KD (or 
K.C.) value will have a retardation factor of 1, or close to 
it, which indicates that they will move at the same velocity as the 
groundwater, or close to it. Constituents with high KD 
values, such as certain semi volatile organic constituents and many 
metals, will have high retardation factors and may move many times 
slower than groundwater. EPA has sometimes used the MINTEQA2 
equilibrium speciation model to estimate Kd's for a variety of metals 
rather than relying solely on field measurements. However, recently a 
number of technical issues have been raised concerning the model and 
its application.\18\ EPA is in the process of evaluating the model to 
address those issues. Therefore, we have decided not to use MINTEQA2 
for today's proposed rule. Once the evaluation is completed and the 
issues are satisfactorily resolved, EPA may again choose to use the 
model in an appropriate form in future rulemakings. For today's 
proposed rule, we used values for metal Kd's that have been derived 
from field studies and have been published in the scientific 
literature. An empirical distribution was used to characterize the 
variability of Kd for chemical contaminants for which sufficient 
published data were available. However, for chemical contaminants 
having relatively few published values, a log uniform distribution was 
used in which a three log unit (three orders of magnitude) expansion 
was made around the geometric mean of the data. This was done to better 
account for the variability most often seen in measurements of Kd and 
to capture the uncertainty that comes from having limited data. Our use 
of empirically derived partition coefficients assumes that sorption is 
linear with respect to concentration (i.e., the Kd isotherm is linear). 
However, sorption is not unlimited and will tend to level off as 
groundwater concentrations increase beyond the linear range (i.e., Kd 
isotherm becomes non-linear). This condition is most likely to occur in 
the unsaturated zone where dilution is limited, if leachate 
concentrations are sufficiently high.
---------------------------------------------------------------------------

    \18\ Norris, C.H. and C.E. Hubbard, 1999. Use of MINTEQA2 and 
EPACMTP to estimate groundwater pathway risks from the land disposal 
of metal-bearing wastes. Prepared for Environmental Defense Fund, 
Friends of the Earth, Hoosier Environmental Council, and Mineral 
Policy Center.
---------------------------------------------------------------------------

    (viii) Indirect Exposure Methodology. We use a series of ``indirect 
exposure equations'' to quantify the concentrations of contaminants 
that pass indirectly from contaminated environmental media to the 
receptor. For example, contaminants that are transported in air may be 
deposited on plants or onto the soil where they may accumulate in 
forage, grain, silage, or soil that is consumed by beef cattle and 
dairy cattle. Individuals may then ingest contaminated beef and dairy 
products. Similarly, contaminants may be transported in groundwater to 
domestic groundwater wells where the groundwater is extracted and used 
for showering. The water vapor generated in the shower may be inhaled 
by the receptor. The indirect exposure equations allow us to calculate 
exposure point concentrations for these pathways and routes of 
exposure. The indirect exposure equations we use to conduct this risk 
assessment are presented in the Technical Background Document for the 
risk assessment.
    e. What Is The Human Health Toxicity of COC's Identified by EPA? To 
characterize the risk from human exposures to the constituents of 
concern, toxicity information on each COC is integrated with the 
results of exposure assessment. Chronic human health benchmarks were 
used in this risk assessment to evaluate potential noncancer and cancer 
risks. We use reference doses (RfDs) and reference concentrations 
(RfCs) to evaluate noncancer health impacts from oral and inhalation 
exposures, respectively. Oral cancer slope factors (CSF's), inhalation 
unit risk factors, and inhalation CSFs are used to evaluate risk for 
carcinogens. The benchmarks are chemical-specific and do not vary 
between receptors (i.e., residents, farmers, recreational fishers) or 
age groups. We use several sources to obtain human health benchmarks. 
Health benchmarks for this risk assessment were obtained primarily from 
the most recent Integrated Risk Information System (IRIS) and the most 
recent Health Effects Assessment Summary Tables (HEAST). IRIS and HEAST 
are maintained by EPA, and the values from IRIS and HEAST were used in 
this analysis whenever available \19\. If IRIS or HEAST chronic 
benchmarks were not available, we sought benchmarks from alternative 
sources. Provisional EPA benchmarks, Agency for Toxic Substances and 
Disease Registry minimal risk levels, California Environmental 
Protection Agency (CalEPA) chronic inhalation reference exposure 
levels, and CalEPA cancer potency factors were used when values were 
not available from IRIS and HEAST. The benchmark for lead is unique. 
Instead of using the benchmarks described above, the Office of Solid 
Waste and Emergency Response (OSWER) soil screening level of 400 ppm 
was used as the benchmark for the air pathways in this analysis. The 
SSL number developed by OSWER accounts for all identified sources of 
lead exposure (including background). The soil screening level was 
derived by predicting the concentration of lead that can be in soils in 
a child's play area such that a typical child would have an estimated 
risk of no more then 5% of exceeding a 10 ug/dL blood lead level. In 
addition, the EPA's drinking water action level for lead of 0.015 mg/L 
was used for the groundwater pathway. We also used a drinking water 
action level for the groundwater pathway analysis for copper since an 
ingestion benchmark was not available.
---------------------------------------------------------------------------

    \19\ We are aware that health benchmarks for several 
constituents of concern or potential constituents of concern are 
currently being reevaluated in IRIS. Reviewers should note that if 
the IRIS health benchmarks change, the Agency would likely use the 
most current benchmarks as the basis for setting concentration 
levels.
---------------------------------------------------------------------------

    Appendix Q of the Risk Assessment Technical Background Document 
contains the toxicological profiles used in our analysis. The studies 
used as the basis for each of these benchmarks have

[[Page 10097]]

been reviewed and summaries of these studies, along with reference to 
the complete studies, are presented in Appendix Q of the Risk 
Assessment Background Document.
    f. What Are The Results From The Risk Assessment? We developed 
concentration limits based on the following waste management unit/waste 
stream combinations:

     Emission control dust managed in a landfill.
     Combined volumes of emission control dust, sludges from 
waste water treatment, and solid off-specification production wastes 
(called ``combined solids'' in the results table) going to a landfill.
     All waste waters managed in a surface impoundment.
     All waste waters managed in tanks.

    For the landfill and surface impoundment scenarios we have risk-
based concentration limits for the air and groundwater pathways. We 
assumed that tanks were sufficiently impermeable that they were highly 
unlikely to release sufficient volumes of waste to pose an unacceptable 
groundwater risk that therefore it was not necessary to develop risk-
based concentrations for the groundwater pathway. Other than mercury, 
the air pathway is not relevant for metals managed in waste waters 
because of their low volatility.
    The small waste volumes generated by the paint and coatings 
manufacturing industry resulted in most of the potential constituents 
of concern not creating an unacceptable risk. For example, the central 
tendency waste volume for emission control dust is 2.44 m\3\ annually 
(approximately 644 gallons). When compared to the central tendency 
capacity of a landfill cell (the annual capacity of a landfill over a 
30 year life), the landfill cell is more than 1000 times larger. This 
results in a thousand fold dilution effect for the leachate when waste 
is placed in a landfill. Another way to put the waste volumes into 
perspective is to consider that the central tendency emission control 
dust waste volume reported by the paint and coating facilities 
comprises only 0.07% of the capacity of a median sized landfill.
    Most of the constituents screened out of the air pathway because 
the predicted concentration limits were either greater than 1 million 
parts per million (physically impossible) or greater than what the EPA 
expects to be managed in paint manufacturing wastes. Specifically, out 
of the 43 constituents evaluated in both the landfill and surface 
impoundment scenarios, only 5 had air pathway concentration limits 
below 1 million parts per million (ppm). In the tank scenario, only 3 
constituents had protective waste concentrations that were below 1 
million ppm.
    Table III.E-2 shows the calculated risk-based concentration levels 
for all the possible constituents of concern in each of the waste 
stream scenarios evaluated\20\. The results are the total concentration 
in either mg/kg for solids (landfills) or mg/L for liquids (surface 
impoundments and off-site tanks) that can be managed in the units and 
remain protective of human health. The concentration levels in Table 
III.E-4 represent the probabilistic results at the 90th percentile risk 
level based on individuals living closest to the waste management unit. 
In other words, these concentration numbers meet a target cancer risk 
level of 10-5 or hazard quotient of 1 for 90% of the receptor scenarios 
we evaluated. As discussed previously, we are attempting to calculate 
estimates of exposure in the upper end of the distribution (i.e., above 
90th percent), while avoiding estimates that are beyond the true 
distribution. EPA guidance for risk characterizations states that ``the 
`high end' of the risk distribution (generally the area of concern for 
risk managers) is conceptually above the 90th percentile of the actual 
(either measured or estimated) distribution. This conceptual range is 
not meant to precisely define the limits of this descriptor, but should 
be used by the assessor as a target range for characterizing `high-end 
risk'.\21\'' Therefore, a high-end estimate that falls within the range 
(at or above the 90th percentile but still realistically on the 
distribution) is a reasonable input to a decision.\22\
---------------------------------------------------------------------------

    \20\ Reviewers should note that inputs used in he modeling to 
support today's proposal may change, and minor modifications to the 
model itself may be made as a result of ongoing internal quality 
assurance/quality control reviews, internal peer review and public 
comments. As a consequence, the proposed constituent levels may 
change as well. Reviewers should bear in mind that levels that 
increase or decrease sufficiently could result in adding or deleting 
constituents from the listing, based on whether the risk-based 
levels are likely to occur in paint production wastes.
    \21\ ``Guidance on Risk Characterization for Risk Managers and 
Risk Assessors'', by then Deputy Administrator F. Henry Habicht, 
1992.
    \22\ The distributions are distributions of concentrations that 
when found in paint production wastes will generate risks of 10-5 or 
an HQ of 1 for individuals living closest to paint manufacturing 
waste facilities. The ``90th percentile'' then is the concentration 
in paint manufacturing waste at which 90% of the individuals living 
closest to paint manufacturing waste management facilities will be 
protected to these levels.
---------------------------------------------------------------------------

    We are soliciting comment on our use of the 90th percentile risk 
level, rather than other high-end risk levels, such as the 95th 
percentile, to set the regulatory concentration. If we used the 95th 
percentile results, the calculated listing levels would be about a 
factor of 3 lower. In addition, if we used the 95th percentile results, 
we would consider adding an additional constituent in the listing for 
liquid wastes (methanol; see Section IV.A for a list of the 
constituents we are proposing for listing). Details of the levels 
calculated using the 95th percentile are given in the Technical 
Background Document for the risk assessment.
    In this listing we are proposing to set the levels at the 90th 
percentile, because we believe that the 90th percentile levels are 
protective. We have limited information on constituent levels in wastes 
because, for the reasons stated earlier, we did not sample waste 
streams. Thus, we do not know with any certainty that a large fraction 
of paint production wastes will be close to the levels derived from 
either the 90th or 95th percentile. Based on the limited data from our 
survey of the industry, we expect that many of the paint production 
wastes generated will not approach these concentrations, but will 
likely be well below the proposed listing levels. Thus, we think that 
the paint production waste that would remain nonhazardous at the 
proposed levels would pose risks below that indicated by the benchmark 
risk-level at either the 90th or 95th percentile.
    We are proposing to establish a concentration-based listing that 
sets a threshold level below which wastes would not be considered 
hazardous. This is different from the usual listing determinations we 
have made in the past. In a traditional listing, all wastes meeting the 
listing description are regulated as hazardous, with no provision to 
test for levels of hazardous constituents present. In a traditional 
listing, if we determined not to list a waste, then all of the waste 
would go unregulated and the risk remains unaffected. A concentration-
based listing, however, would regulate the higher risk wastes and 
potentially leave lower risk wastes unregulated. This means that by 
setting the listing levels at the 90th percentile, we are ensuring that 
the residual risk for the unregulated wastes would likely be below the 
risk associated with the risk based on an assessment of all wastes. 
Therefore, we believe that using the 90th percentile levels to set the 
listing levels is appropriate for this concentration-based listing. 
Note that we also recently proposed to use the 90th percentile risk 
levels to set listing levels in the listing for two wastes from the 
dyes and pigments industries (64 FR 40192, July

[[Page 10098]]

23, 1999); this was also a concentration-based listing that established 
a threshold, below which wastes would not be listed. For traditional 
listing decisions, we considered a range of high-end risk results, 
including a range of probabilistic results at or above the 90th 
percentile, e.g., see the proposed listings for wastes from the 
production of chlorinated aliphatics (64 FR 46476, August 25, 1999) and 
inorganic chemicals (65 FR 55684, September 14, 2000).

             Table III.E-4.--Calculated Risk-Based Concentration Levels for Possible Constituents of Concern in Paint and Coatings Waste \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                    Emission control dust  (mg/kg)       Combined solids  (mg/kg)           Waste waters in surface
                                 ---------------------------------------------------------------------       impoundments  (mg/L)        Waste waters in
          Constituents                                                                                ----------------------------------  off-site tanks
                                    Air  pathway      Groundwater      Air  pathway     Groundwater                       Groundwater         (mg/L)
                                                        pathway                           pathway        Air  pathway       pathway
--------------------------------------------------------------------------------------------------------------------------------------------------------
Acrylamide......................  E                 3.1E+02          E                4.7E+02          2.3E+05          1.2E+01          E
Acrylonitrile...................  1.3E+05           4.3E+01          1.7E+05          6.0E+01          1.9E+04          9.3E+00          6.9E+04
Antimony........................  E                 2.3E+03          E                3.2E+03          M                3.9E+02          M
Barium..........................  E                 E                E                E                M                E                M
Benzene.........................  6.3E+05           3.1E+04          7.9E+05          4.7E+04          1.0E+05          5.6E+02          1.9E+05
Butylbenzylphthalate............  E                 L                E                L                E                E                E
Cadmium.........................  E                 1.3E+05          E                2.8E+05          M                3.9E+04          M
Chloroform......................  E                 6.0E+05          E                E                E                1.5E+02          E
Chromium III....................  E                 E                E                E                M                E                M
Chromium VI.....................  E                 6.8E+04          E                6.6E+04          M                8.8E+03          M
Cobalt..........................  E                 E                E                E                M                E                M
Copper..........................  E                 E                E                E                M                E                M
Cresol, m.......................  E                 E                E                E                E                2.2E+04          E
Cresol, o-......................  E                 E                E                E                E                2.5E+04          E
Cresol, p-......................  E                 E                E                E                E                2.6E+03          E
Di(2-ethylhexylphthalate).......  E                 L                E                L                E                E                E
Dibutylphthalate................  E                 L                E                L                E                E                E
Dichloromethane.................  E                 2.4E+05          E                3.3E+05          E                4.5E+03          E
Dimethylphenol 2,4-.............  E                 E                E                E                E                1.7E+04          E
Divalent mercury................  6.0E+05           E                8.7E+05          E                2.5E+04          6.4E+05          E
Ethylbenzene....................  E                 L                E                L                E                1.1E+04          E
Ethylene glycol.................  E                 E                E                E                E                7.9E+05          E
Formaldehyde....................  E                 9.3E+05          E                E                E                8.2E+04          E
Lead............................  E                 E                E                E                M                E                M
Mercury.........................  1.6E+05           E                2.1E+05          E                5.9E+03          E                1.0E+04
Methanol........................  E                 E                E                E                E                2.0E+05          E
Methyl ethyl ketone.............  E                 1.5E+05          E                2.2E+05          E                8.2E+03          E
Methyl isobutyl ketone..........  E                 7.3E+04          E                1.2E+05          E                3.4E+02          E
Methyl methacrylate.............  E                 2.8E+04          E                4.1E+04          E                2.1E+03          E
N-butyl alcohol.................  E                 9.7E+05          E                E                E                4.1E+04          E
Nickel..........................  E                 E                E                E                M                E                M
Nickel oxide....................  E                 B                E                B                M                B                M
Pentachlorophenol...............  E                 9.6E+04          E                1.6E+05          E                1.0E+04          E
Phenol..........................  E                 E                E                E                E                2.7E+05          E
Selenium........................  E                 2.5E+04          E                3.4E+04          M                6.1E+03          M
Silver..........................  E                 E                E                E                M                E                M
Styrene.........................  E                 E                E                E                E                4.6E+03          E
Tetrachloroethylene.............  E                 1.4E+04          E                2.1E+04          E                4.8E+02          E
Tin.............................  E                 E                E                E                M                E                M
Toluene.........................  E                 E                E                E                E                1.2E+03          E
Vinyl acetate...................  E                 G                E                G                E                G                E
Xylene (mixed isomers)..........  E                 L                E                L                E                3.9E+03          E
Zinc............................  E                 E                E                E                M                E                M
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Levels represent the 90th percentile protective waste concentration derived from the probabilistic analysis.
L = screened out of the groundwater due to no leachate.
E = risk-based waste concentration exceeds 1 million (1E+06) parts per million.
B = screened out of the pathway due to a lack of a human health toxicity benchmark.
M = not included in the risk analysis for that pathway since the constituent is a non-volatile metal.

    g. What Is The Uncertainty in Human Health Risk Results? 
Uncertainty is a description of the imperfection in knowledge of the 
true value of a particular parameter. This risk assessment has inherent 
limitations that lead to uncertainty in our risk estimates because of 
the complexity associated with simulating the behavior of a chemical 
moving through the environment from disposal in a management unit, to 
exposure points in various environmental media, and subsequent impacts 
on receptors. As explained below, limitations also result from the 
amount, type, and quality of the data used in our assessment, the set 
of exposure pathways evaluated, and the types of waste management units 
considered. Because of the number of facilities that manufacture paint 
and

[[Page 10099]]

coatings, it was not feasible for us to directly measure data such as 
facility/site characteristics (for example, unit area and volume; depth 
to groundwater; aquifer thickness; hydraulic conductivity; location of 
wells; type of ecological receptors; behavioral characteristics of 
receptors) at each representative site to estimate risk.
    This section discusses the major areas of uncertainty in risk 
assessments as classified by the EPA: scenario uncertainty, model 
uncertainty, and parameter uncertainty.
    (a) Scenario uncertainty results from the assumptions we make 
regarding how receptors become exposed to contaminants. This 
uncertainty occurs because of the difficulty and general impracticality 
of making actual studies of all activities involved in the management 
of a waste and the human activities that occur around the waste 
management unit.

     This risk assessment does not consider the additive 
risk from exposure to multiple constituents. Chemical mixtures can 
display both synergistic and antagonist behavior with regard to 
risk. In general, however, the overall risks of a mixture are very 
likely to be greater than that of exposure to a single chemical. 
Therefore not adding exposures across the chemicals is an area of 
uncertainty that leads to an underestimate of total risk. We did not 
calculate the additive effects from multiple-chemical exposure since 
there was not information on the concentrations or co-management of 
particular constituents. In addition, for a concentration based 
listing it is not reasonable to set standards for a constituent that 
are developed based on the assumed presence of other constituents 
that have the same health affect. Whether or not a particular 
chemical mixture poses an additive risk or hazard depends on the 
targets (tissue, organ, or organ system), the concentrations of all 
the constituents in the mixture, and the mechanisms of action of the 
individual chemicals. Without information on the co-management of 
constituents, it was not feasible to consider additive risks.
     In certain cases, EPA performs a risk assessment on 
wastes that contain contaminants that also are present in the 
environment as a result of both natural processes and anthropogenic 
activities. Under these circumstances, receptors potentially receive 
a ``background'' exposure that may be greater than the exposure 
resulting from release of contaminants from the waste. For national 
analysis like this assessment, the inclusion of background 
concentrations as part of the analysis is not feasible due to (a) 
the variability of background concentrations nationwide and (b) the 
lack of data on national background concentrations for each 
constituent.

    (b) Parameter uncertainty occurs when (1) there is a lack of data 
about the parameters used in the equations, (2) the data that are 
available are not representative of the particular instance being 
modeled, or (3) parameter values cannot be measured precisely and/or 
accurately because of limitations in measurement technology. Random, or 
sample errors, are a common source of parameter uncertainty that is 
especially critical for small sample sizes. More difficult to recognize 
are nonrandom or systematic errors that result from bias in sampling, 
experimental design, or choice of assumptions.

     The age of several of the databases used in this 
analysis to characterize the waste management units or the location 
of the receptors leads to uncertainty in the analysis. These 
databases contain information collected by the EPA in several 
surveys during the mid- to late 1980's. While these databases 
represent the best available information the Agency had at the time 
of this analysis, uncertainty exists in the analysis on changes in 
waste management practices or residential locations that may have 
occurred during the past decade. The uncertainty associated with 
these data may lead to an over or under estimate of risk.
     The sorption coefficient, Kd, which is used 
in the source partition model, the groundwater model, and in 
modeling constituent concentration in surficial soils, is an 
important parameter for modeling the fate and transport of metals in 
the environment. In previous analyses, Kd values were 
calculated using MINTEQ but, because of comments on the validity of 
some of the data upon which MINTEQ calculations are based, EPA 
decided, for this analysis, that Kd values would be 
derived from literature values. A comprehensive review of the 
literature was undertaken to compile Kd data for an 
earlier rulemaking (Inorganic Chemicals Listing Determination, 65 FR 
55684, September 14, 2000.) Despite this substantial earlier effort, 
considerable uncertainty remains in the literature-based values of 
Kd used in this analysis because data concerning 
Kd values for particular constituents reported in the 
literature were limited. In addition, reported values often were not 
accompanied by qualifying information. Conditions that affect 
Kd values (e.g., constituent concentration, metal species 
evaluated, pH, experimental technique) are often not reported in the 
literature making interpretation of results difficult. For these 
reasons, substantial uncertainty concerning the values of 
Kd remain.
     Very little data were available on the physical and 
chemical characteristics of paint manufacturing waste. To address 
this, assumptions on the waste characteristics are based on general 
knowledge of paint and other similar industrial wastes. In this 
analysis, except for constituent concentration, which was 
calculated, EPA assumes that the paint manufacturing waste is mixed 
with other generic industrial wastes. Therefore, general waste 
characteristics, including default assumptions for the waste 
parameters (e.g., fraction of organic carbon, pH), were used.
     We used waste volume data in this risk assessment 
provided by the facilities as part of our RCRA 3007 survey. Since 
the survey was not a census, there is some uncertainty associated 
with the waste volume distribution. This uncertainty may lead to an 
over or under estimate of risk.
     We typically use regional databases to obtain the 
parameter values necessary to model contaminant fate and transport. 
Because the data that we used are not specific to the facilities at 
which the actual wastes are managed, the data represent our 
estimates of the generic site conditions. For an analysis where 
waste management locations are so variable, we believe this type of 
approach is reasonable and is the best method to address the fate 
and transport of constituents. Nevertheless, the use of these 
databases in lieu of site-specific data may result in either 
overestimates or underestimates of risk.
     Sources of uncertainty in toxicological benchmarks 
include one or more of the following: extrapolation from laboratory 
animal data to humans, variability of response within the human 
population, extrapolation of responses at high experimental doses 
under controlled conditions to low doses under highly variable 
environmental conditions, and adequacy of the database (number of 
studies available, toxic endpoints evaluated, exposure routes 
evaluated, sample sizes, length of study, etc.). Toxicological 
benchmarks are designed to be conservative (that is potentially 
overestimate risk) because of the uncertainties and challenges 
associated with condensing toxicity data into a single quantitative 
expression. Uncertainty factors are applied to address limitations 
of the available toxicological data and are necessary to ensure the 
RfD or RfC is protective of individuals in the general population. 
The use of uncertainty factors is based on long-standing scientific 
practice. Uncertainty factors, when combined commonly range from 10 
to 1000 depending on the nature and quality of the underlying data. 
The RfD/RfC methodology is expected to have an uncertainty spanning 
perhaps an order of magnitude.
     We recognize that significant uncertainties and 
unknowns exist regarding the estimation of lifetime cancer risks in 
children. We estimated the risk of developing cancer from the 
estimated lifetime average daily dose and the slope of the dose-
response curve. A cancer slope factor is derived from either human 
or animal data and is taken as the upper bound on the slope of the 
dose-response curve in the low-dose region, generally assumed to be 
linear, expressed as a lifetime excess cancer risk per unit 
exposure. However, individuals exposed to carcinogens in the first 
few years of life may be at increased risk of developing cancer.
     The non-cancer toxicological effects in children is 
also an area of uncertainty. Non-cancer reference doses and 
reference concentrations for children are based on comparing 
childhood exposure, for which we have age-specific data, with adult 
toxicity measures, where adequate age-specific dose-response data is 
lacking. This mismatch results in a large amount of uncertainty in 
the estimation of hazard quotients for children. This would 
sometimes result in an overestimation of children's risk and 
sometimes in an underestimation. This issue

[[Page 10100]]

is still under investigation in the scientific community and no 
consensus has been reached.

    (c) Model uncertainty is associated with all models used in all 
phases of a risk assessment, because models and their mathematical 
expressions are simplifications of reality that are used to approximate 
real-world conditions and processes, and their relationships. Computer 
models are simplifications of reality, requiring exclusion of some 
variables that influence predictions but cannot be included in models 
due either to increased complexity or to a lack of data on a particular 
parameter. Models do not include all parameters or equations necessary 
to express reality because of the inherent complexity of the natural 
environment, and the lack of sufficient data to describe the natural 
environment. Because this is a probabilistic assessment that predicts 
what may occur with the management of certain paint manufacturing 
wastes under assumed scenarios, it is not possible to compare the 
results of our models to any specific situation that may exist. The 
risk assessor needs to consider the importance of excluded variables on 
a case-by-case basis because a given variable may be important in some 
instances and not in others. A similar problem can occur when a model 
that is applicable under average conditions is used for conditions that 
differ from the average. In addition, in some instances choosing the 
correct model form is often difficult when conflicting theories seem to 
explain a phenomenon equally well. In other instances, the Agency does 
not have established model forms from which to choose to address 
certain phenomena, such as facilitated transport. We selected models 
used in this risk assessment based on science, policy, and professional 
judgement. Most of the models selected have been verified and some have 
been validated. In addition, most of these models have been peer 
reviewed. These models were selected because they provide the 
information needed for this analysis and because we generally consider 
them to be state-of-the-science. Even though the models used in the 
risk analyses are used widely and have been accepted for numerous 
applications, they each retain significant sources of uncertainty. 
Evaluated as a whole, the sources of model uncertainty in our analysis 
could result in either an overestimation or underestimation of risk. 
Specific areas of modeling uncertainty in this analysis are:

     There were constituents identified as materials used in 
paint manufacturing that were not modeled in this risk assessment 
due to a lack of information on how they behave when introduced to 
the environment. Our fate and transport modeling is limited to those 
constituents for which we have (1) the physical/chemical parameters 
necessary to run our models and (2) adequate information on toxicity 
to understand potential health impacts from exposure. In selecting 
constituents of concern, we found multiple constituents that were 
complex inorganic compounds containing more than one metal of 
concern and organometallic compounds (compounds containing both a 
metal and organic constituents) that can be used in manufacturing 
paint. For example, compounds such as lead chromate molybdate and 
lead naphthenate may be used as ingredients in paint. An adequate 
set of both the physical/chemical parameters and toxicity 
information for modeling fate and transport and predicting risk to 
human health are lacking for these metal complexes. The technical 
background document for the risk assessment contains the information 
we found on a set of organometallics. Due to this absence of data, 
we simulate the risk presented by these multiple compounds by 
modeling the ionic form of the metal. For example, the model 
predictions for lead are used to represent the complex lead 
inorganic metal compounds and lead organometallic compounds that may 
be used in paints. Since so little is known about these complex 
metal compounds and what their fate may be in the environment, our 
modeling may over or under-estimate the actual risks. In addition, 
for metals transformations may take place as the pH of the waste or 
media can change the state of the metal, sometimes to a less toxic 
form and sometimes to a more toxic form. The risk assessment did not 
model transformation products or changes in metal species.
     Exposure modeling relies heavily on default assumptions 
concerning population activity patterns, mobility, dietary habits, 
body weights, and other factors. There are some uncertainties 
associated with some of the data used for these parameters. Although 
it is possible to study various populations to determine various 
exposure parameters (e.g., age-specific soil ingestion rates or 
intake rates for food) or to assess past exposures (epidemiological 
studies) or current exposures, risk assessment is about prediction. 
Therefore, long-term exposure monitoring in this context is 
infeasible. The Exposure Factors Handbook provides the current 
state-of-the-science concerning exposure modeling and assumptions 
and is used in this risk assessment. To the extent that actual 
exposure factors vary from the assumptions in this risk assessment, 
risks could be underestimated or overestimated.
     In modeling the fate and transport of chemicals in 
groundwater, we did not assess complex hydrogeology such as karst or 
highly fractured aquifers. Some fraction of the groundwater settings 
in this analysis have fractured flow. In general, fractured flow in 
groundwater can channel the contaminant plume, thus allowing it to 
move faster and more concentrated than in nonfractured flow 
environment. As a result, our modeling may under or over estimate 
the concentrations in the groundwater.
     Finally, there is uncertainty in predicting the 
movement of contaminants over long periods of time. We assess the 
risk to receptors for the groundwater pathway over a time period of 
10,000 years. There are significant uncertainties regarding how 
exposure, scientific, and environmental assumptions will change over 
time, and the modeling methodology does not change these assumptions 
over this 10,000 year period.

    We request comments on each of these areas of uncertainty, 
including their potential impact on our conclusions and whether data 
are available to improve our analysis.
6. What Was EPA's Approach To Conducting the Ecological Risk 
Assessment?
    Waste management activities cannot only impact the health of 
individuals living near a WMU, but can also have adverse effects on 
other organisms and natural systems. For example, wildlife can come 
into contact with constituents released from WMUs by swimming or living 
in contaminated waters or by drinking or catching prey such as fish 
from contaminated waters. For this risk assessment, the EPA conducted 
an ecological risk screening analysis for all the waste management 
units evaluated for the human health risk assessment. The purpose of 
this analysis was to identify whether there is potential for adverse 
ecological effects from the management of paint production waste in 
landfills, surface impoundments, and off-site treatment tanks. We 
performed this ecological risk assessment with a two tiered approach. 
For the first tier, we assumed that each of the constituents evaluated 
had a concentration in the waste of 750,000 parts per million. This 
concentration was a starting number for the analysis and does not have 
any significance to the way in which paint wastes are currently 
managed. This waste concentration was selected as a concentration level 
to perform a screening analysis with since it is greater than what the 
EPA expects would be managed in paint manufacturing wastes. All 
constituents except for mercury and lead did not pose an unacceptable 
risk to ecological receptors at this concentration. For these two 
constituents, we performed a second level of analysis. For mercury and 
lead, we predicted what concentrations could be managed in each waste 
management unit to ensure that all ecological receptors experience a 
hazard quotient of 1 or less when compared to the 90th percentile 
environmental media concentrations. These concentrations were 270,000 
ppm and 7400 ppm for lead and mercury

[[Page 10101]]

respectively. Based on these concentrations we determined that lead and 
mercury in paint manufacturing wastes do not pose a threat to 
ecological life. Based on our knowledge of paint formulations and 
information we received on constituent concentrations from our 3007 
survey, we do not expect paint production wastes to contain either lead 
or mercury at the levels we predicted would pose a hazard to ecological 
receptors. In addition, since lead and mercury are regulated as 
hazardous wastes with the toxicity characteristic, we believe that 
paint manufacturing wastes that have high levels of these constituents 
will already be regulated as hazardous waste.\23\ Although we modeled 
high concentrations in the waste, we believe that risks were not found 
to ecological receptors in this screening level risk assessment because 
of the small waste volumes of non-hazardous waste that are being 
managed in the waste management units.
---------------------------------------------------------------------------

    \23\ Such high levels of mercury in paint manufacturing are also 
unlikely due to existing regulations controlling the use of mercury 
in paint. Prior to the 1990s, paint manufacturing used mercury in 
paints at low levels (e.g., phenylmercuric acetate was used as a 
biocide to control mildew in latex paints). EPA restricted this use 
under the Federal Insecticide, Fungicide and Rodenticide Act 
(FIFRA), eliminating mercury in interior latex paints (55 FR 26754, 
June 29, 1990) and in exterior paints (56 FR 105, May 31, 1991).
---------------------------------------------------------------------------

    The models described in Section III were used to estimate the 
release of these concentrations from the waste management units, fate 
and transport of the constituents in the environment, and ultimately, 
the concentration of each constituent in the different environmental 
media (i.e., surface waters, soils). The ecological screening analysis 
compares these modeled media concentrations to ecologically protective 
media concentrations called chemical stressor concentration limits 
(CSCL's). The result of this comparison is a ratio called a hazard 
quotient. When the hazard quotient exceeds 1, there is potential for 
adverse effects to the ecological receptor. If the hazard quotient is 
equal to or less than 1, we do not expect adverse effects for a 
particular ecological receptor. The amount by which the hazard quotient 
exceeds 1 suggests the potential for adverse ecological effects; 
however, the screening results do not demonstrate actual ecological 
effects, nor do they indicate whether those effects will have 
significant implications for ecosystems and their components.
    a. How Were Ecological Exposures Estimated? Similar to estimating 
human receptor exposures, we estimated ecological receptor exposures 
based on simulated contaminant concentrations in the various 
environmental media and food items, pathway specific ingestion rates, 
and receptor type-specific body weights. For this analysis, however, 
the EPA determined the upper bound constituent concentration that can 
be present in the emission control dust, combined solids, and aqueous 
waste and modeled the fate and transport of these constituents into the 
environment. The resulting media concentrations were then compared to 
ecological receptor chemical stressor concentration limits. The 
exposure pathways included in this analysis were (1) root uptake of 
constituents in soil or sediment by plants, (2) biological uptake of 
constituents in surface water by aquatic animals (e.g., fish or aquatic 
invertebrates); (3) biological uptake of constituents in sediment by 
benthic invertebrates; (4) biological uptake of constituents in soil by 
soil invertebrates; and (5) ingestion of constituents in surface water, 
soil, sediment, or food items (plants and animals) by terrestrial 
vertebrates. This assessment did not take into account the dermal 
absorption of constituents in surface water or soil by terrestrial 
vertebrates or the inhalation of volatile constituents in air. There 
are not enough data available on these types of exposures to wildlife 
to include them in this risk assessment. The 90th percentile media 
concentrations were then compared to CSCLs to determine the hazard 
quotient for each ecological receptor evaluated.
    There were several simplifying assumptions made for this analysis 
that over-estimated the potential hazard to ecological receptors. For 
example, the exposures are estimated assuming that the receptors derive 
all their food from the contaminated area and the receptors diets 
consist predominantly of items with the highest contaminant uptake 
rates. The methodologies and equations used for the ecological receptor 
exposure estimates are fully described in the Technical Background 
Document for the risk assessment.
    b. What Ecological Receptors Did The EPA Evaluate? Two general 
types of receptors were evaluated in the ecological assessment. For 
exposure through direct contact with contaminated media, the receptors 
were multispecies communities such as the soil invertebrate community 
or the terrestrial plant community. For indirect exposure through 
ingestion, the receptors are single species populations, such as white-
tailed deer or raccoons and include representative trophic levels and 
feeding strategies. Evaluating risk to receptor populations and 
communities included consideration of both aquatic and terrestrial 
habitats. Within each habitat, risk was evaluated at all trophic levels 
(i.e., position within the food chain) and for all feeding strategies 
(e.g., plant feeder, predator). Although actual WMU sites were not 
defined, it was assumed that WMUs occur in a variety of settings that 
include terrestrial, wetland, and aquatic systems. Thus, the ecological 
receptors evaluated in this risk assessment include representative 
plants and animals from several different terrestrial, wetland, and 
aquatic habitats. In general, the receptors occur throughout most of 
the continental United States or throughout broad regions, such as east 
of the Mississippi River.
    Relevant trophic levels and feeding strategies (i.e., herbivorous, 
omnivorous, and carnivorous diets) were established using simple food 
webs that describe dietary composition and predator-prey relationships 
in each of the three habitat types. Receptors representing each feeding 
strategy at each trophic level were selected. In addition, the 
receptors represent a cross section of general taxa at each trophic 
level. For example, invertebrates as well as vertebrates were included, 
and vertebrate receptors include amphibians, mammals, and birds.
    The ecological assessment does not specifically address federally 
listed threatened or endangered species.
    c. How Did EPA Consider The Toxicity of Constituents in The 
Ecological Risk Assessment? The calculation of ecological risk for 
receptor populations is based on the implicit assumption that each 
receptor species forages only within the contaminated area, regardless 
of the size of its home range. For smaller animals, this assumption has 
little impact on the estimates of exposure. However, for larger animals 
with more extensive foraging areas, this assumption may overestimate 
exposure if the animal's foraging patterns tend to be evenly spread 
over the home range that extends beyond the contaminated area.
    For the species specific receptors (both mammals and birds), the 
overall approach used to establish ecotoxicological benchmarks is 
similar to the methods used to establish RfDs for humans. Each method 
uses a hierarchy for the selection of toxicity data and extrapolates 
from a test species to the species of interest. However, there are 
fundamental differences in the goals of noncancer risk assessments for 
humans and ecological receptors. Risk assessments of humans seek to 
protect the individual while risk assessments of ecological receptors 
seek to protect

[[Page 10102]]

populations or communities of important species.
    First, because population viability was selected as an assessment 
endpoint, the benchmarks were developed from measures of reproductive/
developmental success or, if unavailable, other effects that could 
conceivably impair population dynamics. In addition, the population-
level benchmark was preferred over population-inference benchmarks. 
Population-level benchmarks are based on studies of effects on an 
entire population (i.e., many interacting individuals) while 
population-inference benchmarks are based on studies of individuals 
with protection of the population being inferred from protection of the 
individual (e.g., no observed adverse effect levels for individual 
organisms on reproductive endpoints). Although relatively few 
population-level benchmarks have been developed to date, these 
benchmarks are considered to be more rigorous than the point estimates 
gleaned from toxicity studies. Once the appropriate ecotoxicological 
studies were identified for mammals and/or birds, the CSCLs for each 
receptor were calculated for each medium of interest by scaling the 
toxicity benchmark from the test species to the receptor species, 
identifying the uptake/accumulation factors, identifying the exposures 
from dietary intake, and determining a risk-based concentration in each 
media. The benchmarks for the community receptors were taken from 
various sources such as the final chronic values developed for the 
National Ambient Water Quality Criteria. A detailed description of the 
benchmarks developed for all of the receptors evaluated is contained in 
the Technical Background Document for the risk assessment.
    7. Did EPA Conduct a Peer Review of The Risk Assessment? The Agency 
has obtained a peer review from independent experts. Their comments 
have been received and are part of the peer review document that is in 
the docket for today's proposed rule. The peer review document also 
describes how the experts were identified and selected, contains 
information on the experts experience and employment, and provides a 
copy of the questions the peer reviewers were asked to address. Due to 
the time constraints for proposal of this rule, the Agency has not yet 
reviewed and addressed those comments. Both the peer review comments 
and the public comments will be addressed in the final rulemaking.

IV. Proposed Listing Determinations and Regulations

A. What Are The Proposed Regulations for Paint Production Wastes?

    We are proposing that, if you generate any of the paint 
manufacturing wastes described in these listings, then you must 
determine whether or not your waste is a listed hazardous waste, or you 
must assume that it is hazardous. For the wastes identified in the K179 
and K180 listings, 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 would need to make a determination that all the 
constituents of concern in your waste are below the hazardous 
concentrations to have your wastes remain nonhazardous. Waste liquids 
listed in K180, however, would not be subject to the listing, if the 
wastes are stored or treated exclusively in tanks or containers prior 
to discharge to a POTW or under an NPDES permit. We are proposing the 
following regulatory language in Sec. 261.32 for these wastes:

    K179--Paint manufacturing waste solids generated by paint 
manufacturing facilities that, at the point of generation, contain 
any of the constituents identified in paragraph (b)(6)(iii) of this 
section at a concentration equal to or greater than the hazardous 
level set for that constituent in paragraph (b)(6)(iii) of this 
section. Paint manufacturing waste solids are: (1) Waste solids 
generated from tank and equipment cleaning operations that use 
solvents, water and/or caustic; (2) emission control dusts or 
sludges; (3) wastewater treatment sludges; and (4) off-specification 
product. Waste solids derived from the management of K180 by paint 
manufacturers would also be subject to this listing. Waste liquids 
derived from the management of K179 by paint manufacturers are not 
covered by this listing, but such liquids are subject to the K180 
listing. For the purposes of this listing, paint manufacturers are 
defined as specified in paragraph (b) of this section.

    K180--Paint manufacturing waste liquids generated by paint 
manufacturing facilities that, at the point of generation, contain 
any of the constituents identified in paragraph (b)(6)(iii) of this 
section at a concentration equal to or greater than the hazardous 
level set for that constituent in paragraph (b)(6)(iii) of this 
section unless the wastes are stored or treated exclusively in tanks 
or containers prior to discharge to a POTW or under a NPDES permit. 
Paint manufacturing liquids are generated from tank and equipment 
cleaning operations that use solvents, water, and/or caustic. Waste 
liquids derived from the management of K179 by paint manufacturers 
would also be subject to this listing. Waste solids derived from the 
management of K180 by paint manufacturers are not covered by this 
listing, but such solids are subject to the K179 listing. For the 
purposes of this listing, paint manufacturers are defined as 
specified in paragraph (b) of this section.
    Due to the uncertainties in our assessment of the management of 
paint manufacturing waste liquids in surface impoundments, we are 
seriously considering an alternative proposal not to list paint 
manufacturing waste liquids. We describe this alternative and our 
reasoning for this option later in this notice (see Section IV.D).
    Under the proposed listings shown above, paint manufacturing wastes 
with constituents of concern below the concentration limits at the time 
of generation would not be hazardous waste K179 or K180; such wastes 
would be nonhazardous from their point of generation, and would not be 
subject to any RCRA Subtitle C management requirements for generation, 
storage, transport, treatment, or disposal (including the land disposal 
restrictions). Similarly, liquid paint manufacturing wastes would also 
be nonhazardous if the waste is managed or treated exclusively in tanks 
or containers prior to discharge to a POTW or under an NPDES permit 
regardless of whether it contained any of the constituents of concern. 
However, if paint manufacturing wastes are hazardous waste due to 
another listing code or because they exhibit a hazardous waste 
characteristic under section 261.24, the wastes remain hazardous under 
these other regulations.
    We are proposing that the constituents and the concentrations in 
the two above listings (which would be specified in paragraph 
(b)(6)(iii) of Sec. 261.32) would be those shown in Tables IV.A-1 for 
waste solids (K179) and in Table IV.A-2 for waste liquids (K180). These 
are waste concentrations that represent risk-based concentrations for 
constituents we determined to be of potential concern in paint 
manufacturing wastes. The concentration-based listing levels for waste 
solids are based on the risk modeling for landfills, and the levels for 
waste liquids are based on the risk modeling for surface impoundments. 
We also evaluated potential air releases from treatment of waste 
liquids in tanks, but as described in Section IV.C, we did not find 
significant risks for this management scenario. Therefore, we are 
proposing not to include wastes managed exclusively in tanks within the 
scope of the listing for waste liquids. See Section IV.D for further 
discussion of our reasoning for structuring the listing for waste 
liquids in this way, and for other options we are considering.

[[Page 10103]]

    As described in Section III.E, we developed risk-based 
concentrations for the larger set of constituents shown in Table III.E-
4. In general, we relied on the modeling results to guide us in 
deciding which constituents would be most useful in defining these 
paint manufacturing wastes as listed hazardous wastes. We chose 
constituents for listing from the list in Table III.E.4 using a number 
of criteria.

     We dropped constituents from further concern if the 
risk-based levels for the waste exceeded or approached 100% (i.e., 
1,000,000 mg/kg), because these constituents could not present 
significant risks in the paint manufacturing wastes we evaluated.
     We did not include constituents that are already 
regulated by the TC. As discussed in Section IV.G, we found that the 
regulatory TC levels (see 40 CFR 261.24) would likely be below the 
protective levels we calculated for these chemicals. Therefore, 
based on our analysis, the existing TC regulations adequately 
regulate risks from these constituents in these wastes, because 
wastes exhibiting the TC would have to be treated prior to disposal.
     We dropped constituents if their levels were so high 
that we believe it is highly unlikely that these chemicals would 
ever exist at such levels in waste solids from paint manufacturing.

    For paint manufacturing waste solids (K179) we used the risk levels 
in Table III.E-4 calculated for emission control dust, because these 
were slightly lower than the levels for the combined solids. Using the 
above criteria for the 43 constituents listed in Table III.E-4, we 
dropped 24 constituents that have risk-based levels above 100% and 11 
other constituents that are TC chemicals. We dropped three others that 
are unlikely to exist in paint wastes at the calculated risk-based 
levels. Two of the three have risk-based levels that are close to 100% 
and are therefore implausible for waste (n-butyl alcohol--970,000 mg/
kg, formaldehyde--930,000 mg/kg). The other constituent, methylene 
chloride (dichloromethane), has a level of 24% (240,000 mg/kg). This 
appears unlikely, given that manufacturers have moved away from using 
chlorinated solvents in paints. This is further supported by the 
responses to the 3007 survey, which showed that the presence of this 
chemical was not reported by any facility in nonhazardous waste.
    For waste liquids (K180), we used the risk-based levels in Table 
III.E-2 derived for wastewaters in surface impoundments. We dropped 14 
constituents that have risk-based levels above 100% and 13 others that 
are TC constituents. We also dropped four other constituents that have 
levels that appear unlikely for waste liquids: ethylene glycol, phenol, 
methanol, and 2,4-dimethylphenol. The calculated levels for ethylene 
glycol (790,000 mg/L), phenol (270,000 mg/L) and methanol (200,000 mg/
L) were so high that we considered these unlikely to ever occur in 
liquid paint manufacturing wastes. While all three are potentially used 
as water-soluble solvent ingredients, phenol and methanol are also used 
as biocides in water-based paints.\24\ While the Survey showed these 
chemicals were found frequently in paint manufacturing wastes, no 
generator reported levels in nonhazardous or hazardous wastes that 
would approach the modeled levels of concern (the only waste with high 
levels was an off-spec paint containing 20% of ethylene glycol that was 
sent to fuel blending). For waste streams to approach these 
concentrations, the constituents would have to start out at even higher 
concentrations in the product. Such high levels in the products are 
unrealistic, because products with such high concentration of these 
constituents would not have the attributes of paint. Therefore, we are 
not proposing to include these chemicals as constituents in the paint 
listings.\25\
---------------------------------------------------------------------------

    \24\ We found solvent uses for phenol were limited in a listing 
determination for solvent uses of this chemical (see 61 FR 42318, 
August 14, 1996). Primary uses as a solvent were in the petroleum 
industry (extraction of lube oil) and in microelectronic and 
automotive industries (removing coatings). While this previous 
analysis did not focus on uses as ingredient, which is the potential 
use in paint formulations, this indicates that the use of phenol for 
its solvent properties is relatively rare.
    \25\ The proposed levels are based on the probabilistic risk 
results for the 90th percentile. If we were to use the results for 
the 95th percentile, we would consider including methanol, because 
then the listing level for liquid wastes would drop to 6.2%, which 
we believe is somewhat more likely.
---------------------------------------------------------------------------

    We dropped 2,4-dimethylphenol as a constituent of concern for waste 
liquids because the 3007 Survey showed that facilities did not report 
its presence in nonhazardous waste. Furthermore, the only potential use 
in paint we found for this chemical was possibly as a biocide. 
Therefore the low concentrations resulting from such a use would be 
unlikely to approach the risk-based level (17,000 mg/L). We also note 
that the TRI data showed only minimal releases (5 lbs.) to off-site 
wastewater treatment for all facilities in SIC code 2851.
    Regulations that limit air releases from off-site wastewater 
treatment facilities are also likely to keep levels of these organic 
constituents below such high levels. EPA is planning to propose a MACT 
standard for paint manufacturers (Miscellaneous Organic Chemical and 
Coatings Manufacturing) that would regulate HAPs in wastewaters, both 
when managed on-site and when sent off-site for treatment. Furthermore, 
subpart DD in 40 CFR part 63 sets National Emission Standards for 
Hazardous Air Pollutants (NESHAP) from off-site waste and recovery 
operations, which may include off-site centralized wastewater treatment 
facilities (July 1, 1996, 61 FR 34140 ).\26\ In addressing potential 
air releases from such facilities, the CAA regulations are likely to 
prevent the levels of most chemicals at issue here (e.g., phenol and 
methanol) from reaching the risk-based levels under consideration in 
liquid paint manufacturing wastes. This is likely because such MACT 
standards often provide incentives to reduce HAPs through source 
reduction or pretreatment to avoid costly engineering controls.
---------------------------------------------------------------------------

    \26\ EPA concluded that this group of wastewater treatment 
plants would likely include some facilities that would be major 
sources of HAPs (see 61 FR 34144/2). Thus, these major sources would 
be subject to the MACT standard.
---------------------------------------------------------------------------

    We solicit comment on the proposed list of constituents and their 
levels. We seek comment and supporting information as to whether any 
other constituents discussed above should be added to the chemicals for 
listing paint solids or liquids and the basis for such action. We seek 
any information that may assist us in deciding whether any of the 
constituents or levels in Tables IV.A-1 and IV.A-2 are so unlikely to 
be present at the levels of concern that we should drop them from the 
listing. For example, the levels for the solids (K179) are high for 
methyl isobutyl ketone (73,000 mg/kg). The liquid level for 
formaldehyde (82,000 mg/L) is also unlikely for a chemical that has 
been used mainly as a biocide or in polymer binders. In addition, we 
question whether the chemicals methyl methacrylate and styrene, which 
are used primarily as resins rather than in their monomeric forms, 
would be present at the high levels shown in Tables IV.A-1 and IV.A-2 
for the solid or liquid paint manufacturing wastes. However, we believe 
levels of the monomeric forms of acrylonitrile and acrylamide that are 
present in the resins may still present a potential risk at the 
relatively low levels set for waste solids and waste liquids not 
managed in tanks. Therefore, we are proposing to include acrylonitrile 
and acrylamide as listing constituents, because they may be in paint 
manufacturing wastes at or above these levels (see discussion in 
Section IV.C on potential risks from tanks). Depending on comments, we 
may choose to add or remove constituents from the concentration-based 
listing.

[[Page 10104]]

    As required under Sec. 261.30(b), we are proposing to add the 
constituents that are the basis for the listings to Appendix VII of 
Part 261. We are proposing to add the constituents in Table IV.A-1 for 
K179 and the constituents in Table IV.A-2 for K180. In addition, a 
number of constituents in Tables IV.A-1 and IV.A-2 are not currently 
listed in Appendix VIII to Part 261 as ``hazardous constituents.'' EPA 
places constituents on Appendix VIII if scientific studies show the 
chemicals have toxic, carcinogenic, mutagenic, or teratogenic effects 
on humans or other life forms (see Sec. 261.11(a)(3)). The Risk 
Assessment Background Document contains the detailed toxicological data 
for all constituents we evaluated, including the chemicals we are 
proposing to add to Appendix VIII: n-butyl alcohol, ethyl benzene, 
methyl isobutyl ketone, styrene, and xylene. If we choose the 
alternative of not listing paint manufacturing waste liquids (K180), 
then we would not need to add the constituents to Appendix VII for 
K180, and we would need to add only methyl isobutyl ketone to Appendix 
VIII.

       Table IV.A-1.--Concentration Levels for Waste Solids (K179)
------------------------------------------------------------------------
                                                           Concentration
                       Constituent                          levels (mg/
                                                                kg)
------------------------------------------------------------------------
Acrylamide...............................................           310
Acrylonitrile............................................            43
Antimony.................................................         2,300
Methyl Isobutyl Ketone...................................        73,000
Methyl methacrylate......................................        28,000
------------------------------------------------------------------------


      Table IV.A-2.--Concentration Levels for Waste Liquids (K180)
------------------------------------------------------------------------
                                                           Concentration
                       Constituent                         levels (mg/L)
------------------------------------------------------------------------
Acrylamide...............................................            12
Acrylonitrile............................................           9.3
Antimony.................................................           390
Ethylbenzene.............................................        11,000
Formaldehyde.............................................        82,000
Methyl Isobutyl Ketone...................................           340
Methyl Methacrylate......................................         2,100
Methylene Chloride.......................................         4,500
N-Butyl Alcohol..........................................        41,000
Styrene..................................................         4,600
Toluene..................................................         1,200
Xylene (mixed isomers)...................................         3,900
------------------------------------------------------------------------

    The listing levels we are proposing for K179 and K180 are different 
for the waste solids and waste liquids. These levels are based on the 
risk assessment for various scenarios for disposal of solids (landfill) 
and the liquids (surface impoundment). In general, we believe 
generators will be able to readily determine which waste category their 
wastes would be in, based on their responses to the 3007 Survey, and 
their reported management practices. However, we are considering 
setting a clear definition to distinguish the waste solids and liquids, 
such that a generator can readily determine which listing applies. 
Thus, we request comment on several options in establishing a clear 
definition that would distinguish solids vs. liquids.
    Perhaps the most straightforward approach would be to set a level 
of percent solids above which the waste would be a solid paint 
manufacturing waste and below which it would be a liquid paint 
manufacturing waste. One possible level could be 15%. Thus, this option 
would define paint manufacturing waste solids as those containing 15% 
or above solids (by weight). This cutoff reflects the general approach 
we used in our modeling for solids. In our assessment of releases from 
landfills we assumed that the waste contained a maximum moisture level 
of 85% (for sludges; we assumed a maximum moisture level of 15% for 
dusts). Furthermore, because of the restrictions on free liquids in 
municipal nonhazardous landfills (e.g., see Sec. 258.28), we do not 
envision wastes containing less than 15% solids could reasonably be 
managed in a landfill. Therefore, we believe that wastes containing 
less than 15% solids will be managed in units associated with 
wastewater treatment, such as tanks or surface impoundments. In 
addition, in most cases water will be separated from solids as part of 
routine wastewater treatment. Thus, generators would be evaluating 
solid residues, which clearly meet our solid definition, or treated 
water, which would typically be discharged to a POTW or under an NPDES 
permit, and would not be covered by the K180 listing in any case.
    Percent solids could be measured by an established method, such as 
the method for total suspended solids (TSS) described in EPA guidelines 
for test methods used under the CWA (EPA method 160.1 in 40 CFR 136.3, 
Table 1B).\27\ However, generators may have the knowledge necessary to 
decide whether their paint manufacturing waste was a liquid or a solid, 
based on past analysis or disposal practices. We believe that in many 
cases, especially for wastes that are clearly ``wet'' or ``dry,'' the 
generator can easily tell from a visual inspection that solids content 
is well above or below 15%. Thus, if we were to set a level to define 
paint manufacturing waste solids and liquids, we believe we could allow 
the generator to use his knowledge, rather than necessarily requiring a 
test.
---------------------------------------------------------------------------

    \27\ Another option would be to use section 7.1 in the TCLP 
(method 1311) to measure filterable solids.
---------------------------------------------------------------------------

    Instead of setting a specific level of percent solids, another 
option is to use the Paint Liquids Filter Test (method 9095 in SW-846) 
to determine if the waste is a liquid or a solid. A paint manufacturing 
waste found to contain free liquid under this method would be 
considered a liquid, and would be evaluated under the K180 listing, 
while a paint manufacturing waste that does not contain free liquids 
would be subject to the K179 listing. This method appears logical 
because it is presently used in defining the term ``liquid waste'' in 
the solid waste disposal criteria for determining compliance with the 
prohibition on disposing of bulk or containerized liquid in municipal 
landfills (Sec. 258.28). Method 9095 is also used in a similar way for 
hazardous waste landfills (Sec. 264.313(c)). Thus, using this method to 
distinguish paint manufacturing waste solids from liquids would be 
consistent with the definitions used in the operating practices for the 
management scenario modeled for solids, i.e., landfills.
    A third option would be to use a definition of liquids that is 
analogous to the definition of wastewater used under the land disposal 
restrictions. Wastewater is defined as waste with less than 1% total 
suspended solids (TSS) and less than 1% total organic carbon 
(Sec. 268.2(f)); nonwastewater is defined as any waste that is not 
wastewater. While using this approach would allow some consistency in 
definitions in the listings and the LDR programs, we believe this would 
not be appropriate. A key disadvantage of this approach is that it 
defines wastes with greater than 1% TSS as a nonwastewater, i.e., a 
solid, even though such a waste is highly likely to be managed in 
wastewater treatment systems using tanks and surface impoundments, and 
not landfills. Given this problem, we do not think using this 
definition would be useful to define wastes solids and liquids for 
purposes of the paint listings.
    We seek comment on the need for specific definitions for paint 
manufacturing waste liquids and solids, and the relative merits of the 
above options or similar approaches. We also request comment on whether 
facilities are likely to have information available on the percent 
solids in their wastes.

[[Page 10105]]

B. Why Are We Proposing to Use the Level of Constituents in the Waste 
Solids as Total Waste Concentrations Rather Than Leachate 
Concentrations?

    We are proposing to set the concentration levels for defining 
hazardous paint solids using the concentrations measured in the waste 
itself, i.e., the totals concentration.\28\ We considered using the 
landfill leachate levels instead of the waste levels to define the 
listed waste. Using landfill leachate levels would require generators 
to evaluate their wastes using a test such as the Toxicity 
Characteristic Leaching Procedure (TCLP).\29\ However, we decided not 
to use the TCLP approach for a number of reasons. We believe that the 
partitioning model used to establish the totals concentrations is a 
more appropriate tool to assess risks posed by the paint manufacturing 
wastes. This is because the partitioning model factors in periodic 
placement of the specific waste volumes in cells within the landfill, 
closure of the landfill after 30 years, volatilization of constituents 
from the landfill through partitioning to the air, and any degradation 
of organics while in the unit. The leaching values for the paint 
manufacturing waste solids result from the partitioning of constituents 
from the waste to water infiltrating the unit. A test method like the 
TCLP does not reflect these factors. The TCLP approach is designed only 
to assess groundwater impacts, and does not account for other releases 
or processes occurring in landfills. Therefore, the estimated leaching 
numbers derived from our modeling assessment of paint manufacturing 
wastes, where partitioning and degradation are occurring before the 
constituents leave the unit, are not strictly comparable with the 
simple leaching of constituents from wastes represented by the TCLP.
---------------------------------------------------------------------------

    \28\ This is not an issue for the listing for paint liquid 
wastes, because any analysis of the liquids would include an 
analysis of the total liquid mixture.
    \29\ See method 1311 in OSW's methods manual, Test Methods for 
Evaluating Solid Waste, Physical/Chemical Methods, SW-846.
---------------------------------------------------------------------------

    We recognize that the totals levels appear somewhat high in 
comparison to the leachable levels we calculated for our assessment of 
paint manufacturing wastes (Table IV.-3). For example, the leaching 
level calculated for dichloromethane is 390 mg/L, compared to a total 
level of 240,000 mg/kg. However, it is not surprising that leachate 
levels derived from the waste would be lower than the levels in the 
waste itself. Most of the organic constituents assessed are relatively 
volatile, and will begin to volatilize as they are placed in the 
landfill. The entire mass of constituent in the waste is not placed in 
the landfill at once, but rather is placed in cells over the life of 
the unit. Therefore, as disposal occurs, the waste constituents are 
continuing to partition into air, soil, or leachate. Our model also 
factors in degradation of organics in the landfill. Such biodegradation 
is relatively slow for most chemicals, however this also assists in 
attenuating the levels of constituents that are released to the 
subsurface. We recently published related modeling results as part of 
the Hazardous Waste Identification Rule (HWIR) using the same modeling 
approach (64 FR 63382, November 19, 1999, and 65 FR 44491, July 20, 
2000), though this effort covered a wider distribution of waste 
volumes. The use of totals rather than leachate for a concentration-
based listing is also consistent with another recent EPA proposal for 
listing hazardous waste from the Dye and Pigments industry (64 FR 
40192, July 23, 1999).
    Therefore, we are proposing the concentration levels for the waste 
itself for the listing for waste solids from paint manufacturing. 
However, we seek comment on the option of setting the leachate 
concentrations from our modeling as the listing levels for the paint 
solids, and on the potential impacts (incremental costs and benefits) 
of such an approach. We may still consider a final regulation based on 
the measurement of leachate with the TCLP method, as shown in Table 
IV.B-3, after further consideration and review of comments.

   Table IV.B-3.--Alternative Concentration Leaching Levels for Waste
                              Solids (K179)
------------------------------------------------------------------------
                                                           Concentration
                        Constituent                         levels  (mg/
                                                                 L)
------------------------------------------------------------------------
Acrylamide...............................................          0.70
Acrylonitrile............................................          0.91
Antimony.................................................            58
Methyl Isobutyl Ketone...................................            42
Methyl methacrylate......................................           160
------------------------------------------------------------------------

C. Why Are We Proposing to Exclude Waste Liquids Managed in Tanks?

    We are proposing that liquid paint manufacturing wastes stored or 
treated exclusively in tanks or containers prior to discharge to a POTW 
or under an NPDES permit not be subject to today's proposed listing 
because these wastes managed in tanks do not pose sufficient risk to 
warrant hazardous waste regulation.
    As shown in Table III.D-4, nearly all of the liquid paint 
manufacturing wastes are managed in some type of wastewater treatment 
system (small volumes are sent to fuel blending or other treatment). 
Furthermore, as indicated in Table III.D-4, liquid wastes are primarily 
classified as water or caustic cleaning liquids, except for one small 
volume of solvent cleaning liquid that went to a fuel blender.
    For on-site tanks, as described in Section III.E, we conducted a 
bounding risk analysis for on-site treatment tanks that evaluated the 
worst case scenario for on-site management in tanks, including storage 
as well as treatment tanks. Our analysis identified some potential 
constituents of concern: Benzene, chloroform, mercury, methylene 
chloride, tetrachloroethylene, and acrylonitrile. However, when the 
survey responses provided data on constituent levels, these data 
indicated that these constituents are unlikely to be present in these 
wastes at levels of concern. In addition, for benzene, chloroform, 
mercury, and tetrachloroethylene, the risk-based concentrations derived 
from the bounding risk analysis are significantly higher than the 
respective TC levels; therefore, the TC regulations provide some 
control for most of these constituents. For acrylonitrile, the 
calculated risk-based concentration of 1,500 ppm is significantly 
higher than the projected range of concentration of 1-40 ppm for 
acrylonitrile in liquid waste streams; as such, it is not of concern. 
Most other constituents of concern either bounded out (i.e., modeled 
levels were higher than 1,000,000 ppm), or were unrealistically high 
for paint manufacturing wastes. The risk-based levels derived from the 
risk assessment for methylene chloride, methyl isobutyl ketone, 
toluene, vinyl acetate, and xylene are so high that we believe they are 
highly unlikely to exist at such levels in nonhazardous liquid paint 
manufacturing wastes. This evaluation for on-site tanks is discussed in 
more detail in the following section (IV.C.1).
    For off-site treatment tanks, we conducted a probabilistic risk 
assessment as described in Section III.E. This risk assessment 
identified three potential constituents of concern: Mercury, benzene 
and acrylonitrile. The survey responses showed that these constituents 
are not likely to be present in the wastes at concentrations of 
concern. In addition, the levels of mercury and benzene in the waste 
are also limited by the existing TC regulations, i.e., the risk-based 
levels derived from the risk assessment are

[[Page 10106]]

well above the TC levels. As described below, we determined that 
acrylonitrile is unlikely to exist in paint manufacturing waste liquids 
at the risk-based levels of 69,000 ppm. Therefore, there is no need to 
regulate paint manufacturing waste streams managed in off-site 
treatment tanks. See section IV.C.2 for a full discussion.
1. On-Site Storage and Treatment Tanks
    Based on our extrapolated survey results, we estimate that 14,564 
metric tons (approximately 47%) of nonhazardous liquid paint 
manufacturing wastes generated are managed in on-site storage tanks and 
7,514 metric tons, or approximately 24%, of nonhazardous paint 
manufacturing waste liquids are managed in on-site treatment tanks. 
After these wastes are managed on-site in storage and treatment tanks, 
the wastes are then either directly discharged into a waterway under a 
NPDES permit, discharged into a POTW, or sent to centralized wastewater 
treatment facilities.
    For tanks, we normally model air emissions. We assume that 
significant groundwater risks are unlikely because tanks do not leak 
liquids into the soil if properly maintained. Treatment tanks represent 
a more conservative scenario for modeling purposes because they are 
typically used for the aeration and flocculation of liquid wastes to 
settle out solids, causing more constituents to escape into the air 
than the relatively quiescent accumulation of liquids in storage tanks. 
Accordingly, we evaluated the potential risks from the management of 
liquids in treatment tanks to cover both scenarios.
    As described earlier in Section III.E, we conducted a bounding 
analysis of the potential air releases from the nonhazardous liquid 
wastes treated in on-site treatment tanks. This conservative analysis 
assumed tanks are uncovered, and modeled the largest liquid residual 
volume and tank size reported by the surveyed facilities. The risk-
based levels for most constituents exceeded 100%, and would not present 
significant risks in the paint manufacturing wastes for this scenario. 
The risk assessment results showed somewhat lower risk-based 
concentrations for paint manufacturing wastes in tanks for some 
constituents, i.e., benzene (1,100 ppm), chloroform (15,000 ppm), 
mercury (41 ppm), tetrachloroethylene (22,000 ppm), acrylonitrile 
(1,500 ppm), methylene chloride (17,000 ppm), methyl isobutyl ketone 
(780,000 ppm), toluene (120,000 ppm), vinyl acetate (100,000 ppm), and 
xylene (830,000 ppm); we discuss these chemicals in detail below.
    In general we do not expect significant levels of organic chemicals 
in on-site wastewater treatment systems for several reasons. First, the 
liquid wastes most likely to have high organic content, solvent 
cleaning wastes, are managed as hazardous. Except for one facility, 
these wastes were coded as hazardous waste, either due to a 
F-listing or because of a characteristic. The 3007 survey showed that 
all the generators of hazardous waste liquids reported the wastes were 
treated by incineration, fuel blending, or they were reused. Therefore, 
we have no data suggesting facilities are treating such high organic 
liquids in on-site wastewater treatment systems.
    Second, the 3007 survey shows that none of the small number of 
facilities that treated wastes in on-site wastewater treatment (WWT) 
tanks (8 facilities, representing about 18 facilities in our weighted 
sample) reported significant organic content in their wastes. Of the 8 
facilities, only one reported the presence of any organic constituents 
of potential concern, but listed them only because they may 
occasionally be present in the waste. Of the other 7 facilities, most 
reported the presence of metals, a few reported vinyl acetate polymers, 
and one reported the water-soluble ethylene glycol.
    Finally, as noted in Section IV.A above, a MACT standard covering 
paint manufacturers will soon be proposed that will address potential 
air releases from these facilities. The MACT would place limits on HAPs 
in wastewater treatment systems, and would likely keep organic levels 
in paint manufacturing wastewaters relatively low.
    Turning to the constituents of possible concern (benzene, 
chloroform, mercury, methylene chloride, tetrachloroethylene, and 
acrylonitrile), the facilities reported in their survey responses that 
these chemicals were either not present at all, or were present at only 
trace concentrations. Out of the 187 paint manufacturers surveyed, the 
responses showed benzene was present in trace amounts in only one 
facility's nonhazardous water cleaning liquid; mercury was present in 
only two facilities' nonhazardous water cleaning liquid at trace levels 
(up to 0.06 ppm). No facility reported the presence of any chloroform, 
methylene chloride, or tetrachloroethylene in any liquid residual. We 
discuss the possible presence of acrylonitrile in detail below. 
Furthermore, the risk-based levels for most of these constituents are 
well above their TC levels (benzene-0.50 ppm, chloroform-5.0 ppm, 
mercury-0.2 ppm, and tetrachloroethylene-0.7 ppm). Consequently, we are 
not proposing regulating these constituents under today's proposed 
listing.
    Acrylonitrile is a monomer, i.e., a relatively small compound with 
low molecular weight. It reacts with other monomers to form polymers 
(i.e., cross-link into large, high molecular weight compounds) that are 
used as paint binders. However, the reaction is rarely 100% complete, 
and small amounts of the individual monomers remain unreacted as 
impurities in the polymer. Unreacted acrylonitrile monomers, not their 
polymers, are the targeted constituents of concern in our risk 
assessment.
    With respect to acrylonitrile monomers, we do not expect this 
constituent to be present in paint manufacturing wastewaters above the 
risk-based concentrations derived from the bounding analysis for tanks. 
To analyze whether concentration levels of acrylonitrile at 1,500 ppm 
are reasonable as a basis for listing liquids in on-site tanks, we 
developed a methodology to determine whether these constituents are 
likely to occur in paint manufacturing waste liquids at concentrations 
within the range of the risk-based levels. We assessed potential 
concentrations of acrylonitrile in paint manufacturing liquid waste 
streams in a three-step process that involved tracking the monomers 
from point of origin (binder) to the final destination (liquid waste 
streams): (1) We estimated the concentration range of acrylonitrile 
monomers in the binder systems used to make paint; (2) we estimated the 
volume percentage of the binder systems added into paints themselves; 
and, (3) we estimated the monomer concentration range in paints in tank 
cleaning wastes. Based on these calculations (which are discussed in 
more detail below), we estimated that the ranges of acrylonitrile 
monomer concentrations in the liquid waste streams should be one to 40 
ppm. We then compared these projected concentration ranges of 
acrylonitrile in the liquid waste streams to the risk-based levels 
calculated in the risk assessment.
    As specified above, we estimated the likely range of unreacted 
monomer of acrylonitrile in the binders (i.e., polymers) to be between 
20 ppm and 1,000 ppm. This is reflected in our analysis of the use of 
acrylamide and acrylonitrile polymers in paint formulations \30\ and 
the Material Safety

[[Page 10107]]

Data Sheet (MSDS) data we obtained from some paint manufacturers 
(copies available in the public docket for today's proposed rule), 
which show the monomer mixture in binders in the 500 to 1,000 ppm 
range. Second, we projected that the likely concentration ranges of 
monomers in a paint or coating are approximately 10 ppm to 500 ppm for 
acrylonitrile. This estimate was based on our examination of paint 
formulations, which indicates that these paint formulations contain up 
to 50% by weight of acrylonitrile-acrylic polymer.\31\ Finally, we 
estimated the projected monomer concentration in the resulting water 
cleaning liquids is approximately one ppm to 40 ppm for acrylonitrile 
given that approximately 50 gallons of water are needed to wash a 
typical paint mixing tank of approximately 5 feet in diameter and 8 
feet in height with a paint depth of 6 feet,\32\ and that a 0.0625-inch 
film of paint is attached to the inside surface of the tank up to 6 
feet (amounting to a total of 4 gallons of paint to be rinsed). These 
projected acrylonitrile concentrations in paint manufacturing 
wastewaters are significantly lower than the calculated risk-based 
concentration of 1,500 ppm. For more details, see ``Potential 
Acrylonitrile Concentrations in Paint Manufacturing Liquid Waste 
Streams' in the public docket for today's proposed rule. Therefore, we 
believe it is highly unlikely for this constituent to be present in 
paint manufacturing liquid waste streams at such levels.
---------------------------------------------------------------------------

    \30\ See the memo from Paul Danault, Dynamac Corporation, to 
David Carver and Cate Jenkins, EPA, dated September 6, 2000, which 
is in the docket for today's proposed rule.
    \31\ Ibid.
    \32\ That is, 50 gallons of water used for washing per about 800 
gallons of paint produced in the tank. This is a conservative 
assumption compared to the information in Reference 7 of the 
Bibliography, Development Document for Effluent Limitations 
Guidelines and Standards for the Paint Formulating Point Source 
Category, EPA 440/1-79/049B, which states that the median wastewater 
generation at waterbone paint facilities is 0.2 gallons per gallon 
of paint produced.
---------------------------------------------------------------------------

    In addition, according to the information available to us, 
acrylonitrile is not widely used in the U.S. paint manufacturing 
industry, and its use is diminishing. For example, resin manufacturers 
are marketing ``acrylonitrile free'' resins. It is also a practice 
within the resin manufacturing industry to remove residual monomer 
before selling the polymer for paint production.
    The low use of this binder in paints is supported by our survey 
data. Six of 187 surveyed paint manufacturing facilities reported 
acrylonitrile-derived polymers in their nonhazardous liquid residuals 
(in particular nonhazardous water cleaning liquids). In addition, one 
survey response indicated the presence of acrylonitrile and 
acrylonitrile-derived polymers in the nonhazardous water cleaning 
liquids at 2.8%. Assuming the polymers used by this facility include 
the monomers in concentrations ranging from 20 ppm to  x 1,000 ppm for 
acrylonitrile as estimated above, the maximum monomer concentration in 
this facility's nonhazardous wash water would be less than 28 ppm 
(i.e., 2.83% x 1,000 ppm/acrylonitrile monomer in polymer), which is 
consistent with our assessment (i.e., between 1 ppm to 40 ppm).
    The risk-based levels derived from the risk assessment for methyl 
isobutyl ketone (780,000 ppm, or 78%), toluene (120,000 ppm, or 12%), 
vinyl acetate (100,000 ppm, or 10%), and xylene (830,000 ppm, or 83%) 
are so high that we believe they are highly unlikely to exist at such 
levels in nonhazardous liquid paint manufacturing wastes. This is 
reflected in the responses to our Section 3007 survey, which indicated 
that the highest levels of toluene, vinyl acetate and vinyl acetate-
derived polymers, and xylene in nonhazardous liquid residuals were 
0.025 ppm, 16,000 ppm, and 118 ppm, respectively.
    In conclusion, our analysis indicates there are no significant 
risks posed by the modeled constituents in nonhazardous paint 
manufacturing wastes that are managed in on-site storage and treatment 
tanks. We believe the likely levels of the potential constituents of 
concern in paint manufacturing wastewaters are substantially lower than 
the risk-based concentrations derived from the bounding risk analysis. 
Therefore, requiring the facilities to analyze or otherwise evaluate 
these constituents would impose an unnecessary burden on paint 
manufacturers. Thus, we are proposing that paint manufacturing waste 
liquids stored and/or treated in on-site tanks at paint manufacturing 
facilities are not subject to today's proposed listing.
2. Management of Liquid Paint Manufacturing Wastes in Off-Site 
Treatment Tanks
    Based on our extrapolated survey results, we estimate that 6,407 
metric tons (approximately 21%) of liquid nonhazardous paint 
manufacturing wastes generated are disposed off-site in privately owned 
wastewater treatment facilities where tanks and surface impoundments 
may be used as part of the treatment process. Following treatment, the 
wastes are typically discharged into surface waters under an NPDES 
permit, or discharged to the POTW system.
    As described earlier in Section III.E, the risk assessment 
conducted for liquid paint manufacturing wastes managed in off-site 
treatment tanks identified potential inhalation risks associated with 
only a few constituents. The risk assessment estimated risk-based 
concentrations for mercury (10,000 ppm), benzene (190,000 ppm) and 
acrylonitrile (69,000 ppm).
    As discussed above, the survey showed that facilities reported only 
traces of benzene or mercury in a few nonhazardous liquid residuals. 
Furthermore, levels of both constituents are controlled by the existing 
TC regulations. Therefore, there is no need to regulate these TC 
constituents further under today's proposed listing.
    For acrylonitrile, the risk-based concentration of 69,000 ppm is 
significantly higher than the estimated range of acrylonitrile monomer 
in paint manufacturing wastewaters (see previous discussions on liquid 
wastes managed in on-site storage and treatment tanks). Therefore, it 
is highly unlikely for this constituent to be present in paint 
manufacturing liquid waste streams at such a high level.
    We note that 21 of the 187 surveyed paint manufacturing facilities 
reported that they sent nonhazardous liquid wastes to off-site 
wastewater treatment facilities, of which only one reported having any 
of the three constituents of concern in the wastewater. Specifically, 
this facility sent a very small quantity of nonhazardous wash water 
(151 gallons/year) containing an unknown amount of acrylonitrile to a 
centralized wastewater treatment facility.
    In conclusion, we believe there are no significant risks posed by 
the modeled constituents in nonhazardous paint manufacturing wastes 
that are managed in off-site treatment tanks. We believe the levels of 
the potential constituents of concern in paint manufacturing 
wastewaters are substantially lower than the risk-based concentrations 
derived from the risk assessment. Therefore, requiring the facilities 
to analyze or otherwise report these constituents would impose an 
unnecessary burden on paint manufacturers. In addition, the levels of 
some constituents are controlled by the existing TC regulations. 
Furthermore, as noted previously, EPA has recently proposed a NESHAP 
for miscellaneous paints and coating manufacturing operations that 
would regulate wastewaters, both on-site and if sent off-site for 
treatment.\33\

[[Page 10108]]

Thus, we are proposing paint manufacturing waste liquids treated in 
off-site treatment tanks are not subject to today's proposed listing.
---------------------------------------------------------------------------

    \33\ As discussed previously, some off-site nonhazardous 
wastewater treatment facilities may also be covered by the NESHAP/
MACT standards in 40 CFR part 63 (61 FR 34140, July 1, 1996), if 
they are a major source of hazardous air pollutant (HAPs) emissions 
defined in section 112 of the CAA amendments of 1990, and if the 
wastes they receive from off-site contain one or more HAPs.
---------------------------------------------------------------------------

D. Why Are We Proposing a Contingent Management Listing for Liquid 
Paint Manufacturing Wastes, and What Other Options Are We Considering?

    We are considering various options for the listing for paint 
manufacturing waste liquid (K180). Under the listing proposed for K180, 
the wastes would not be listed if they are managed in on-site storage 
and treatment tanks or containers prior to discharge to a POTW or under 
a NPDES permit. (Of course, if the concentrations of the listing 
constituents are below the regulatory levels, the waste would not be 
hazardous in any case.) We are proposing this type of ``contingent 
management'' listing because we did not find significant risk from 
treatment or storage in tanks, as noted above. However, if a paint 
manufacturing waste generator intends to send the waste off-site for 
treatment outside of tanks (and waste constituents are not below the 
listing levels), the waste would be K180 and would be subject to 
storage requirements under Subtitle C. We recognize that the regulation 
of the onsite storage and treatment of the waste in tanks prior to the 
waste being shipped offsite may be unwarranted because our risk 
analysis for tanks shows no significant risk for liquid paint 
manufacturing waste. Therefore, we are soliciting comment on the option 
of exempting wastes stored or treated on-site in tanks or containers 
from being a hazardous waste while it is stored on-site, regardless of 
what the ultimate treatment or disposal practice might be. This would 
mean that the point of generation for K180 would be when the waste is 
sent off-site, and that it would not be classified as K180 hazardous 
waste while it is stored or treated in tanks or containers on-site 
prior to shipment off-site for disposal.
    The constituent levels we are proposing are based on the possible 
risks from management of the liquid wastes in an off-site centralized 
wastewater treatment system with an unlined surface impoundment. We did 
not complete a risk assessment for possible risks for various other 
known or potential management practices. Given that we found risk in 
one management scenario, but did not assess risks from other major 
practices, we are limiting the exemption from the listing to the 
management practice that we determined posed no significant risk, i.e., 
management in tanks. Therefore, we are proposing to list the paint 
manufacturing waste liquids, unless they are managed in tanks prior to 
discharge under an NPDES permit or to a POTW.
    As discussed in Section II.G, the 3007 Survey showed that 21 paint 
manufacturers reported sending their liquid wastes to 24 off-site 
wastewater treatment facilities. We contacted 9 of these 24 and found 
one treatment facility that reported using a lined surface impoundment 
to treat two different paint manufacturers' liquid wastes. Based on the 
weighting factors used for our survey sample, we estimate these 24 off-
site wastewater treatment facilities represent about 40 facilities in 
the U.S. that may accept paint liquids. While we cannot extrapolate the 
information from nine wastewater treatment facilities to the overall 
population, we estimate that there could be 4 to 5 treatment facilities 
that use impoundments of some kind. The one facility with an 
impoundment indicated the unit was lined, however there are no Federal 
regulatory requirements that ensure this would be the case for other 
impoundments throughout the country. Hence, it may be reasonable to 
assume that some of these impoundments may be unlined for modeling 
purposes. We note that surface impoundments are used to treat 
wastewaters in general, and that a recent study confirmed that a 
significant portion of impoundments in some industries are unlined.\34\ 
(However, this study focused primarily on on-site impoundments used in 
specific industries, and not commercial off-site treatment facilities). 
Therefore, if we assume management of liquid wastes in an unlined 
impoundment is a plausible management scenario, our assessment suggests 
that the risks from such management may present a significant potential 
hazard to human health and the environment for some constituents of 
concern.
---------------------------------------------------------------------------

    \34\ Based on an initial review of data from the Study of 
Industrial Non-hazardous Waste Surface Impoundments required under 
the Land Disposal Program Flexibility Act. Also, in a 1995 EPA found 
only 26 States had requirements for liners under State regulations: 
see State Requirement for Industrial Non-Hazardous Waste Management 
Facilities, U.S. Environmental Protection Agency, October 1995.
---------------------------------------------------------------------------

    However, we are also seriously considering not listing paint 
manufacturing waste liquids, or using a different approach for a 
listing, due to the uncertainty in management practices we assumed in 
our risk assessment. While we are proposing to list because of 
potential risks arising from unlined surface impoundments, we are 
considering the alternative of not listing this waste because this may 
not be a ``plausible'' management scenario. As noted above, while the 
survey data shows that management in an off-site treatment facility is 
relatively common, we found only one case where a surface impoundment 
was in use. We estimate that only 4 to 5 such impoundments may be 
receiving any of the paint manufacturing waste liquids from the 
estimated 972 paint manufacturers. Thus, management of these wastes in 
surface impoundments appears to be an infrequent occurrence. The number 
of unlined impoundments receiving this waste is more uncertain due to 
our limited data on surface impoundments, but the probability of off-
site commercial treatment facilities treating paint manufacturing 
wastes in such unlined units is likely to be even lower than the number 
of facilities using impoundments.
    The effectiveness of liner systems depends, in part, on how they 
are designed. Composite and double liners that combine two or more 
layers of liner material with leachate collection and leak detection 
should minimize leakage to the subsurface during the period when the 
leachate collection system is actively managed. While it is difficult 
to predict the level of protection afforded by a liner system due to 
the uncertainty concerning long-term performance, we believe the level 
of protection could be significant for a surface impoundment, which 
will contain liquid wastes only during its operating life.\35\ 
Therefore, our assessment of an unlined surface impoundment may 
overestimate potential risks from this disposal scenario.
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    \35\ We believe there is greater uncertainty about the efficacy 
of liners in providing long-term protection from releases from 
landfills, because the wastes remain indefinitely. A synthetically 
lined impoundment with a finite operational life of perhaps 30 to 50 
years is less likely to release wastewater during the life of the 
unit. During operation, leaks in the liner system would be detected 
and presumably fixed; active use of an impoundment can be stopped, 
drained, and liners repaired. Also, the leachate collection system 
is likely to prevent a significant release during operation.
---------------------------------------------------------------------------

    The risk results from modeling surface impoundments may also 
overestimate risks for other reasons. As noted in Section III.E, we 
used impoundment data gathered in a 1985 Industrial D Screening Survey. 
We were not able to distinguish off-site vs. on-site impoundments from 
these data, so we used a sample from all units in the database. Because 
most impoundments

[[Page 10109]]

are part of on-site treatment processes for industrial process 
wastewater, the data include a variety of types of units that may not 
be realistic for the off-site commercial wastewater treatment 
facilities we are attempting to model. Our database contains units with 
characteristics that are unlikely for large off-site treatment 
facilities, i.e., many units are relatively small (median area about 
3,200 m\2\) and have low flow rates with long retention times (median 
retention time about 0.5 years, 90th percentile retention of 50 years). 
These characteristics mean that many of the impoundments used in the 
modeling would have a fairly high fraction of paint manufacturing 
waste, e.g., the 90th percentile value for fraction of paint 
manufacturing waste in the unit was one. We believe that off-site 
commercial treatment units are more likely to be larger and have much 
shorter retention time, thereby reducing the average fraction of paint 
manufacturing waste in the treatment units. While it is difficult to 
gauge the importance of these characteristics in our risk assessment 
results, these may lead to an overestimate of impoundment risks. We may 
use this factor, in conjunction with a full review of all comments, as 
an additional reason not to list paint manufacturing waste liquids.
    We solicit any information on the prevalence of surface impoundment 
management of paint manufacturing waste liquids, and any data related 
to the use of surface impoundments, either lined or unlined. After 
reviewing all comments and reconsidering all available information on 
the possible risks from management of paint manufacturing waste 
liquids, we may decide not to list this waste.
    Assuming we decide to finalize a listing for paint manufacturing 
waste liquids due to the potential for risks from surface impoundments, 
we are also soliciting comments and supporting data on an alternative 
listing that would exclude other practices, such as incineration and 
fuel blending. We could limit the scope of the listing so that it would 
clearly apply only to wastes managed in surface impoundments. Thus, the 
listing could specify that it would apply only if the waste exceeded 
the regulatory concentration levels, and if the waste was managed in a 
surface impoundment. We may decide that such an approach is appropriate 
in this case given that this was the only practice modeled that 
presented unacceptable risk, and because the practice may be very 
infrequent. For the paint manufacturing wastes at issue in today's 
proposal, we did not find significant risks from management in 
tanks.\36\
---------------------------------------------------------------------------

    \36\ Discharges to surface waters are controlled under the CWA 
and require an NPDES permit, while discharges to a POTW are subject 
to State and national pretreatment standards. Note that 40 CFR 261.4 
reflects the RCRA statute and excludes ``any mixture of domestic 
sewage and other wastes that passes through a sewer system to a POTW 
for treatment'' (40 CFR 261.4(a)(1)(ii)), and industrial wastewater 
discharges that are point source discharges subject to regulation 
under Section 402 of the CWA (40 CFR 261.4(a)(2)).
---------------------------------------------------------------------------

    The other reported management practices of potential concern were 
thermal treatment in incinerators, cement kilns, and fuel blending. As 
noted previously, in past listing determinations where we have 
attempted to assess risks from incineration, we found that the 
potential risks from the release of constituents through incineration 
would be at least several orders of magnitude below potential air risks 
from releases from tanks or impoundments (see listing determination for 
solvent wastes at 63 FR 64371, November 19, 1998). Although metal 
constituents would not be destroyed in thermal treatment, we expect the 
metal content of nonhazardous paint manufacturing waste liquids sent to 
incineration to be low; this is consistent with the 3007 Survey data, 
which show no nonhazardous paint manufacturing waste liquids with 
significant metal content. Limiting the listing to wastes only managed 
in impoundments would reduce the overall burden of the listing, so that 
it would apply only to the practice of most potential concern, i.e., 
surface impoundments.

E. Potential for Formation of Non-Aqueous Phase Liquids in Paint 
Manufacturing Wastes

    We considered the possibility that some constituents in paint 
manufacturing wastes might form distinct nonaqueous phase liquids 
(NAPLs). NAPLs can be an issue, because once released to the subsurface 
a number of difficult problems may occur. Such problems include the 
creation of a long-term NAPL source in the subsurface and facilitated 
transport of contaminants that have an affinity for the NAPL fraction. 
The formation of NAPLs is strongly dependent on the specific wastes in 
question and the management practice, and it is difficult to predict 
when NAPLs might be important. However, many of the organic chemicals 
we evaluated for this listing are highly water soluble and in many 
cases volatile, thus most have little potential for NAPL formation. EPA 
has used a general approach in the Hazardous Waste Characteristics 
Scoping Study to identify which chemicals have some potential to form 
NAPLs based on water solubility and other parameters.\37\ NAPL-forming 
chemicals generally have relatively low water solubilities (less than 
5,000 mg/L) and are liquids at ambient temperature. Applying these 
criteria, the only non-TC constituents of concern that may potentially 
form NAPLs would be the phthalates and the aromatic hydrocarbons 
(ethylbenzene, styrene, toluene, and xylenes). Any NAPL-forming 
chemicals that are regulated under the TC (i.e., the slightly soluble 
chemicals benzene and tetrachloroethylene) are unlikely to form NAPLs 
in wastes, because the TC levels are well below their water solubility. 
Thus, wastes with TC constituents high enough to form NAPLs would be 
regulated as hazardous, and would not be land disposed until treated.
---------------------------------------------------------------------------

    \37\ U.S. Environmental Protection Agency, Office of Solid Waste 
and Emergency Response, Hazardous Waste Characteristic Scoping 
Study, November 1996, and U.S. Environmental Protection Agency, 
Office of Solid Waste and Emergency Response, Evaluation of the 
Likelihood of DNAPL Presence at NPL Sites, EPA 540-R-93-073, 
September 1993.
---------------------------------------------------------------------------

    We believe that paint manufacturing wastes with the high organic 
content needed to form NAPLs are unlikely to be land disposed for 
several reasons. First, high organic wastes are typically sent for 
thermal treatment or recycling. For example, see the final listing 
determination for solvents (63 FR 64372, November 19, 1998); we found 
that solvent wastes with high organic content are usually thermally 
treated, and that wastes sent to landfills contained negligible amounts 
of solvent (63 FR 64384). Also, many landfills are unlikely to accept 
wastes with free liquids, and in fact such a practice is restricted 
under Federal regulations for municipal solid waste landfills 
(Sec. 258.28) and Subtitle C landfills (Sec. 264.314). Similar 
restrictions, while not federally mandated, are in place in most States 
for off-site nonmunicipal solid waste landfills.\38\
---------------------------------------------------------------------------

    \38\ U.S. Environmental Protection Agency, Office of Solid 
Waste, State Requirements for Industrial Non-Hazardous Waste 
Management Facilities, October 1995.
---------------------------------------------------------------------------

    We believe that any paint manufacturing waste liquids that may be 
placed in impoundments or tanks at offsite wastewater treatment 
facilities are unlikely to contain significant NAPLs. The nonhazardous 
paint manufacturing waste liquids are nearly all reported to be from 
aqueous washing of equipment, with only one facility reporting 
generating a nonhazardous liquid from solvent cleaning; this facility 
sent this waste to a fuel blender.

[[Page 10110]]

All other waste solvents were coded and managed as hazardous waste. 
This is not surprising, given that many solvents used for cleaning 
equipment would yield wastes that are listed as hazardous (F001 through 
F005), or exhibit a characteristic, such as ignitability.
    The nonhazardous water cleaning liquids are mixed with other 
wastewaters when treated in offsite centralized wastewater treatment 
systems, making significant NAPLs less likely. As noted above in 
Section IV.A, existing and proposed regulations under the CAA would 
also tend to keep the organic content of wastewaters low for any 
chemical designated a hazardous air pollutant, or HAP. Nearly all 
constituents of potential concern we identified for paint manufacturing 
wastes are HAPs under the CAA. We believe that these rules make it 
unlikely that NAPLs would form in offsite wastewater surface 
impoundments.
    The information in the 3007 Survey suggests that wastes with liquid 
or free solvents are not disposed in landfills. The waste data we 
collected from the 3007 Survey indicates that few of the nonhazardous 
paint manufacturing wastes of concern have the high organic content 
necessary to form a separate NAPL phase. Of the nearly 200 nonhazardous 
wastes reported (125 solids, 74 liquids), only 15 were reported to have 
levels of any organic constituent above relatively low levels (1%). In 
most of these 15 cases, the organic constituents included levels of 
associated polymers (polymers of acrylonitrile, styrene, and vinyl 
acetate). The few nonhazardous wastes with significant concentrations 
of a constituent that might form a NAPL (3 wastes reported to contain 
2% or 6% butyl benzyl phthalate) went to incineration (one waste with 
10% xylene went to unspecified offsite treatment). The remaining wastes 
with significant organic content contained ethylene glycol, which is 
highly unlikely to form NAPLs given its extreme solubility in water. In 
any case, only one waste with organic content above 1% was reported to 
go to a landfill (an off-specification paint manufacturing waste with 
2.5% ethylene glycol). We recognize that the information for 
constituents in the 3007 Survey is limited, however, the data in hand 
show that generators do not appear to be sending paint manufacturing 
waste with high organic content to land disposal. Even in the event 
some generators were sending some wastes with higher potential NAPL-
forming chemicals to land-based units, the volumes would be relatively 
small. This makes it unlikely that organic levels in these units would 
be sufficient to generate a NAPL phase that would impact releases to 
groundwater.
    As noted previously in Section IV.A, EPA is planning to propose a 
MACT standard to address potential releases of volatile HAPs from paint 
manufacturing facilities. The proposed MACT would place limits on HAPs 
in wastewaters and keep organic levels in paint manufacturing waste 
relatively low.
    As another check on the potential for NAPL formation in paint 
manufacturing wastes, we examined the Survey data for discarded off-
specification paint. Our survey data indicated that disposal of off-
spec products in landfills was fairly infrequent (13 facilities 
reported a total of 941 metric tons in 1998). From follow-up telephone 
calls to these generators, the facilities almost uniformly indicated 
that the off-specification material was not in liquid form; the wastes 
were in solid resins, hard cured by drying, or otherwise solidified 
prior to disposal.

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

    Today's proposal would result in two new hazardous waste listings 
that differ from previously promulgated listed hazardous wastes in that 
they include constituent-specific concentrations to define the scope of 
the listings. The primary purpose of these ``concentration-based 
listings'' is to establish levels at the point of generation of a 
waste, above which that waste is considered to be a listed hazardous 
waste (i.e., ``entrance'' levels). Wastes that are generated below 
these levels would not be subject to these listings.
    We are also proposing to use the listing concentrations as ``exit'' 
levels for residues from paint manufacturing waste solids (K179). 
Residuals from the treatment, storage, or disposal of listed hazardous 
wastes are usually classified as hazardous wastes based on the 
``derived-from'' rule (see 40 CFR 261.3(c)(2)(i)).\39\ The use of the 
listing concentrations as exit levels for treatment residues would 
terminate the applicability of the derived-from rule and, therefore, 
the treatment residues would no longer be considered a listed hazardous 
waste. We are specifically proposing to add language to the standards 
in 40 CFR 261.3 to describe this self-implementing process for paint 
manufacturing waste solids (K179). For reasons discussed below, we are 
proposing that generators cannot use the listing levels for paint 
manufacturing waste liquids (K180) as exit levels, even if the waste 
falls below those levels through treatment. In the following discussion 
we also clarify further the status of liquids derived from paint 
manufacturing waste solids and vice-versa, and address mixtures or 
treatment residues that occur away from the paint manufacturing 
facility, such as at an off-site treatment facility.
---------------------------------------------------------------------------

    \39\ Also, the ``mixture'' rule (see 40 CFR 261.3(a)(2)(iii) and 
(iv)) provides that, with certain limited exceptions, any mixture of 
a listed hazardous waste and a solid waste is itself a RCRA 
hazardous waste. We are not proposing any changes to the mixture 
rule in today's action.
---------------------------------------------------------------------------

    We envision that the proposed listing of the paint manufacturing 
waste solids (K179) would function similarly to a hazardous waste 
characteristic such as toxicity, except that the concentration levels 
would be the basis for deciding a waste is hazardous only when applied 
to the solids as generated or managed at a paint manufacturing 
facility. Thus, a waste would become hazardous K179 only if it meets or 
exceeds the listing levels at the paint manufacturing facility. 
Structuring the listing for paint manufacturing waste solids in this 
way avoids implications for solids generated off-site from a 
nonhazardous waste that in part, or in whole, originated from a paint 
manufacturing facility. For example, we avoid small quantities of 
nonhazardous paint manufacturing waste liquids treated at an off-site 
commercial wastewater treatment facility subjecting any liquid or solid 
derived from them at an offsite treatment facility to evaluation 
against the levels proposed today for paint manufacturing wastes.\40\
---------------------------------------------------------------------------

    \40\ Note that a paint manufacturing waste solid could be 
nonhazardous when generated, but become hazardous later if 
management on-site led to the waste becoming more concentrated and 
exceeding the listing levels. If this occurs at the paint 
manufacturing facility, it would become a listed K179 waste.
---------------------------------------------------------------------------

    We are proposing, however, that the paint manufacturing waste 
solids that are hazardous K179 may be treated to generate nonhazardous 
waste, if the treatment results in constituent concentrations that are 
below the listing levels in K179. Note that land disposal restrictions 
would still apply, as they do to ``decharacterized'' waste that was 
hazardous only due to a hazardous waste characteristic, until the waste 
meets the LDR treatment requirements (see Section VI of today's notice 
for the proposed standards). Thus, if treatment of K179 yields 
constituent levels that are below the listing levels and meet the 
appropriate LDR standards, the waste may be disposed as a nonhazardous 
waste (e.g., in a Subtitle D landfill). We are specifically proposing 
to add language to the standards in 40 CFR 261.3 to exempt solids that 
previously

[[Page 10111]]

met the K179 listing, if the constituent levels are below the listing 
levels. We request comment as to whether the derived-from rule should 
apply to the K179 paint manufacturing wastes solids beyond the paint 
manufacturing site as they would in a traditional listing. However, we 
believe that our evaluation of the risks of disposal of solid K179 
would apply equally well to solids that have been treated.
    The proposed listing of paint manufacturing waste liquids (K180) 
operates like a characteristic only in the sense that if a paint 
manufacturing waste is below the listing level at the point of 
generation, it is not covered by this listing. However, it would act as 
a traditional listing if a paint manufacturing liquid waste generated 
at a paint manufacturing facility meets or exceeds the listing levels, 
in that liquids derived from K180 remain subject to the listing even if 
they fall below those levels through dilution or treatment. We are 
proposing that liquid residuals from K180 wastes would remain 
hazardous, because the surface impoundment scenario we used to set the 
listing concentrations for K180 assumed that the liquid paint wastes 
are mixed with other wastewaters in an off-site treatment facility. The 
listing levels we set for K180 are for the waste prior to any mixing 
and would necessarily be higher than the levels of the constituents 
that may exist in the off-site impoundment. We believe that the listing 
levels for K180 would not be appropriate for use in exiting the RCRA 
hazardous waste regulatory program, because they do not correspond to 
risk-based levels for the diluted waste in the impoundment.\41\ 
Therefore, we are proposing that any liquid wastes derived from K180 
would remain listed as K180 (unless the waste is excluded under the 
petition process set out in Secs. 261.20 and 261.22, typically known as 
``delisting'').
---------------------------------------------------------------------------

    \41\ Furthermore, wastes that are otherwise prohibited from land 
disposal may be treated in surface impoundments or series of 
impoundments that meet certain conditions (see section 268.4).
---------------------------------------------------------------------------

    We are proposing that the scope of the listings reflect the 
practical situations that arise at the site of paint manufacturing if 
derived-from wastes are in a different form than the original paint 
waste, i.e., if liquid wastes are derived from K179, and if waste 
solids are derived from K180. In such cases, we believe that is more 
appropriate to evaluate these on-site derived-from wastes against the 
listing concentrations that reflect the corresponding waste form. 
Solids generated from K180 at the site of paint manufacturing would no 
longer be K180, but would be subject to classification as K179, if the 
waste meet or exceed the listing levels for K179. Under this approach, 
solids generated from K180 on-site that are below the listing levels 
for K179 would not be a hazardous paint waste. Similarly, a liquid 
waste derived from K179 at the site of paint manufacturing would be 
evaluated against the K180 listing conditions; if such a liquid is 
either managed exclusively in tanks or containers, or if the 
constituents in the liquid are below the listing levels for K180, the 
K179-derived liquid would not be hazardous paint waste. We have 
included text in the listing descriptions for K179 and K180 to 
establish these changes in waste codes for on-site derived-from wastes.
    We are not proposing that the above change in waste codes would 
apply to waste residuals generated off-site. We believe that changes in 
waste codes would be confusing for off-site treatment facilities and 
may be difficult to track and enforce. Furthermore, K179 or K180 wastes 
that are sent off-site for treatment would likely be treated at a 
facility that accepts and treats a wide variety of hazardous wastes, 
and any derived-from wastes generated from treatment of K179 or K180 
would likely carry multiple hazardous waste codes. Therefore, we are 
proposing to allow the mixture-derived from rules to operate normally 
off-site, except for the exemption for treated K179 noted previously. 
This approach still allows a treatment facility to use the exemption to 
the derived-from rule we are proposing for waste solids (K179); the 
treatment facility would have to treat only for the K179 hazardous 
constituents of concern (provided no new characteristics are imparted 
by the treatment process).
    Finally, we stress that solids and liquids derived off-site from 
nonhazardous paint manufacturing liquids are not listed paint 
manufacturing wastes (i.e., not K179 or K180). Such wastes are not 
paint manufacturing wastes, in that the waste management facility is 
not directly involved in the manufacture of paint products. Therefore, 
these wastes would not be subject to the listing criteria for K179 or 
K180.

G. Relationships of the Proposed Listings to the TC

    Fifteen constituents that we assessed for paint manufacturing waste 
are also constituents covered by the broadly-applicable Toxicity 
Characteristic (TC). We modeled these constituents, along with the 
constituents not covered by the TC, to see if for any reason the 
modeling approach would indicate a significant hazard would be posed 
that is not already addressed by the TC. This might have occurred, for 
example, if the windblown dust pathway had produced significantly lower 
concentrations. However, we found that, with one exception, the 
concentrations of concern predicted in the paint-waste modeling were 
above the levels already regulated by the TC.
    For the fourteen constituents for which the paint modeling yielded 
concentrations higher than TC levels, we are not setting levels in this 
listing, and the TC will continue to apply. We are proposing to retain 
the more restrictive TC levels for these constituents to protect human 
health and the environment. The specific levels calculated for paint 
manufacturing waste for this proposal represent amounts of constituents 
that can be safely disposed for the relatively small volumes of paint 
manufacturing waste solids and liquids subject to today's proposed 
listing. The TC levels, in contrast, broadly address all wastes in the 
country subject to RCRA Subtitle C. They were designed to protect human 
health and the environment from the possibility that many waste streams 
from multiple generators could be disposed of in a single landfill. 
Consequently, our TC risk assessments reflect much higher waste volumes 
arising from a broad spectrum of industries and sources. If we analyzed 
by itself any individual, small-volume waste stream subject to the TC, 
we might find that it did not pose risks at TC levels. However, a set 
of smaller waste streams from multiple sources could pose risks if 
disposed together with other wastes. Consequently, we believe we need 
to retain the broad, multiple-waste TC approach.\42\
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    \42\ This is consistent with current EPA regulations regarding 
``delisting petitions'' under 40 CFR 260.22(c) and (d). If modeling 
indicates the waste does not pose a significant hazard, EPA exempts 
it from the hazardous waste listing. However, as required under the 
regulations, we do not exempt wastes that exhibit a hazardous waste 
characteristic.
---------------------------------------------------------------------------

    For the remaining constituent, pentachlorophenol, the paint listing 
modeling results (at the 90th percentile probabilistic level) showed a 
protective leachable concentration of 66 mg/L. This is slightly lower 
than the existing TC level (100 mg/L). Upon review of 3007 survey data 
on prevalence, however, we found that this constituent is not currently 
used in paint production and it is not likely to be found in paint 
manufacturing wastes. While pentachlorophenol has apparently been used 
historically as a biocide in paint formulations, most

[[Page 10112]]

pesticide uses of this chemical have been halted.\43\ In addition, 
despite the fact that this is a TC constituent, this chemical was not 
reported in any of the wastes in the 3007 survey data. Given these 
facts we see no reason to include pentachlorophenol as a listing 
constituent for paint manufacturing wastes. The TC, of course, would 
continue to apply to any paint manufacturing waste containing 
pentachlorophenol, and wastes exceeding the TC level would be regulated 
as hazardous.
---------------------------------------------------------------------------

    \43\ See the cancellation for non-wood uses at 52 FR 2282, 
January 21, 1987.
---------------------------------------------------------------------------

H. 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 apply to leachate derived from the disposal of listed 
hazardous wastes, including leachate derived from wastes meeting the 
listing descriptions that were disposed before the effective date of a 
listing. We are not reopening nor taking comment on any of these issues 
with this proposed rulemaking.
    Of course, as set out in detail in the August 1988 notice, this 
does not mean that landfills holding wastes that are listed now as 
hazardous become subject to Subtitle C regulation. However, previously 
disposed wastes now meeting a listing description, including residues 
such as leachate that are derived from such wastes, and that are 
managed actively do become subject to Subtitle C regulation. See 53 FR 
at 31149, August 17, 1988. In many, indeed most, circumstances, active 
management of leachate would be exempt from Subtitle C regulation 
because the usual pattern of management is discharged 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 exempt from RCRA regulation (40 CFR 
264.1(g)(6)).
    It is possible that waste solids within the proposed scope of K179 
may have been disposed in landfills. Because we are proposing that 
liquids derived from the offsite management of K179 would continue to 
carry the K179 waste code, leachate from a landfill that accepted paint 
manufacturing waste solids might be classified as K179. While we do not 
believe that it is likely that liquid K180 wastes would have been 
disposed in landfills in significant quantities, a landfill may have 
accepted a derived-from K180 solid (as a result of offsite treatment). 
However, the proposed listings for the two paint manufacturing wastes 
are concentration-based listings, and it would be difficult to know 
whether the previously disposed wastes that meet the narrative 
description of K179 did in fact have constituent concentrations that 
would be at or above the K179 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 disposed wastes would have met the 
listing being proposed today, it is unlikely that the previously 
disposed wastes would be classified as K179, and thus unlikely that 
landfill leachate and gas condensate derived from these wastes that are 
actively managed would be K179.
    However, if actively managed landfill leachate and gas condensate 
derived from the newly-listed wastes proposed for listing in today's 
notice could be classified as K179, we would be concerned about the 
potential disruption in current leachate management that could occur, 
and the possibility of redundant regulation. This issue was raised to 
the Agency in the context of the petroleum refinery waste listings (see 
63 FR 42173, August 6, 1998). A commenter expressed concern that, 
because some of the commenter's nonhazardous waste landfills received 
newly-listed petroleum wastes prior to the effective date of the 
listing decision, the leachate that is collected and managed from these 
landfills would be classified as hazardous. The commenter argued that 
this could lead to vastly increased treatment and disposal costs 
without necessarily any environmental benefit. After examining and 
seeking comment on this issue, we published a final rule that 
temporarily defers regulation of landfill leachate and gas condensate 
derived from certain listed petroleum refining wastes (K169-K172) that 
were disposed before, but not after, the new listings became effective, 
provided certain conditions are met. See 64 FR 6806, February 11, 1999. 
We proposed listing determinations for wastes from the dye and pigment 
industries (64 FR 40192, July 23, 1999) and from the inorganic chemical 
manufacturing industries (65 FR 55684, September 14, 2000) that propose 
deferrals for similar wastes derived from landfills. We also 
promulgated a listing determination for the chlorinated aliphatics 
industry (65 FR 67068, November 8, 2000) that retains the deferral.
    At the time this issue was brought to the Agency's attention in the 
context of the petroleum refinery waste listings, EPA's Office of Water 
had recently proposed national effluent limitations guidelines and 
pretreatment standards for wastewater discharges--most notably, 
leachate--from certain types of landfills. See 63 FR 6426, February 6, 
1998. In support of this proposal, EPA conducted a study of the volume 
and chemical composition of wastewaters generated by both subtitle C 
(hazardous waste) and Subtitle D (nonhazardous waste) landfills, 
including treatment technologies and management practices currently in 
use. Most pertinent to finalizing the temporary deferral for the 
petroleum refining wastes, EPA did not propose (or subsequently 
finalize) pretreatment standards for subtitle D landfill wastewaters 
sent to POTWs because the Agency's information indicated that such 
standards were not required (see 65 FR 3008, January 19, 2000).
    The conditions included in the temporary deferral we published on 
February 11, 1999 are that the leachate is subject to regulation under 
the Clean Water Act, and the leachate cannot be stored in surface 
impoundments after a period of two years (February 13, 2001). See 40 
CFR 261.4(b)(15). We believe that it was appropriate to temporarily 
defer the application of the new waste codes to such leachate in order 
to avoid disruption of ongoing leachate management activities while the 
Agency decides if any further integration is needed of the RCRA and CWA 
regulations consistent with RCRA section 1006(b)(1). We believe that it 
is still appropriate to defer regulation and avoid leachate management 
activities, and to permit the Agency to decide whether any further 
integration of the two programs is needed. As such, we would be 
concerned about forcing pretreatment of leachate even though 
pretreatment is neither required by the CWA, nor needed. Therefore, we 
are proposing to temporarily defer the regulation of landfill leachate 
and gas condensate derived from management of K179 and K180 wastes that 
we are

[[Page 10113]]

proposing for listing in today's rule, with the same conditions as 
described in 40 CFR 261.4(b)(15) for petroleum wastes. We request 
comment on this proposed conditional deferral.

V. Proposed Generator Requirements for Implementation of 
Concentration-Based Listings

    We are proposing that these concentration-based listings be self-
implementing. This means that you (the waste generator) would be 
responsible for determining whether or not your wastes are K179 or K180 
listed hazardous wastes at the point of generation based on the 
proposed procedures we describe below.\44\ We are proposing a two-
tiered implementation approach for the concentration-based listings, 
based on waste form (liquids or solids) and total annual quantity of 
the paint manufacturing wastes generated at each paint production 
facility, that you could use to determine whether your wastes are 
nonhazardous. Before using the proposed two-tiered approach, you would 
determine if any of your paint manufacturing waste solids or paint 
manufacturing waste liquids could contain any of the constituents of 
concern identified for these types of wastes (see Tables IV.A-1 and 
IV.A-2). We are proposing that you could use knowledge of your wastes 
(e.g., knowledge of the constituents in your wastes based on existing 
sampling and analysis data and/or information about raw materials used, 
production processes used, and degradation products formed) to make 
this initial determination regardless of the quantity of waste you 
generate. If any portion of your wastes at the point of generation will 
not contain any of the constituents of concern identified for your 
specific type of wastes, you would not have to use the two-tiered 
approach to determine whether those wastes are nonhazardous (i.e., are 
not K179 or K180 listed wastes). Paint manufacturing wastes described 
in the K179 or K180 listings, but which do not contain any of the 
constituents of concern for K179 or K180, would not be K179 or K180 
hazardous wastes at the point of generation. You should note, however, 
that absence of the constituents of concern in some portion of your 
wastes would not relieve you, the generator, from hazardous waste 
determination requirements for all other wastes that do contain 
constituents of concern.
---------------------------------------------------------------------------

    \44\ Due to the uncertainties in our assessment of the 
management of paint manufacturing waste liquids in surface 
impoundments, we are considering an alternative proposal not to list 
paint manufacturing waste liquids. We describe this alternative 
elsewhere in this notice (see Section IV.D). The following 
discussion describes the approach we are proposing for paint 
manufacturing waste liquids if K180 is listed.
---------------------------------------------------------------------------

    If your paint manufacturing wastes contain one or more constituents 
of concern, then you would either use the two-tiered approach to 
determine whether they are nonhazardous or handle them as hazardous. 
Under this proposed approach, if you generate or expect to generate 40 
metric tons or less of paint manufacturing waste solids or 100 metric 
tons or less of paint manufacturing waste liquids annually, then you 
would have the option of testing the wastes or using knowledge of the 
wastes to determine whether they are nonhazardous. However, if you 
generate or expect to generate over 40 metric tons of paint 
manufacturing waste solids or over 100 metric tons of paint 
manufacturing waste liquids, then you would be required to test the 
wastes annually to determine whether they are nonhazardous. Our reasons 
for proposing a two-tiered approach and requiring annual testing of 
larger quantity wastes are discussed in Section V.C. The exception to 
the annual testing requirement to determine whether wastes are 
nonhazardous, regardless of annual waste quantities generated, would be 
for paint manufacturing waste liquids that are stored or treated 
exclusively in tanks or containers and then discharged to a POTW or 
under a NPDES permit.
    We are proposing the constituents of concern for the two types of 
wastes (solids and liquids) from paint production that are listed in 
Tables IV.A-1 and IV.A-2. We are also proposing the listing (hazardous 
concentration) level for each of these constituents that are in the 
same tables. We are proposing that you use this information, in 
conjunction with testing or knowledge of constituent levels in your 
wastes, to determine whether or not the wastes are hazardous.
    Unless you make a determination that your wastes are nonhazardous 
for K179 or K180, using either knowledge that the wastes do not contain 
any of the constituents of concern or the specified procedures 
described in section C below, then we are proposing that your wastes 
would be hazardous and you would be subject to the existing 
requirements under RCRA for persons who generate hazardous waste. Thus, 
if you are not already a hazardous waste generator, you would have to 
notify the EPA, according to section 3010 of RCRA, that you generate a 
hazardous waste. You would also be subject to all applicable 
requirements for hazardous waste generators in 40 CFR Part 262.
    If you determine that your paint manufacturing waste solids or 
liquids are nonhazardous, we are proposing to require, under the 
authority of sections 2002 and 3007 of RCRA, that you keep certain 
records (see Section E below) of your wastes at the generating site 
(on-site). Following the initial nonhazardous determination, you would 
be obligated to ensure that your wastes continue to meet all of the 
proposed conditions and requirements for the wastes to be deemed 
nonhazardous. Accordingly, you should also note that regardless of any 
type of nonhazardous determination that you make for your wastes, the 
wastes would be hazardous if we test and find that they actually have 
constituents of concern at or above the listing levels.

A. Would I Have to Determine Whether or Not My Wastes Are Hazardous?

    Yes, we are proposing that you must determine whether or not your 
wastes are hazardous K179 or K180 wastes. This hazardous waste listing 
determination could be made in either of two ways. First, you could 
assume that your wastes are hazardous at the point of generation. If 
you do this, then you could forego the requirement for testing or using 
knowledge of the wastes to make a hazardous waste determination. In 
such a case, your wastes would be subject to all applicable RCRA 
Subtitle C hazardous waste requirements, including LDR requirements, 
either as of effective date of the final rule or as of initial 
generation of the wastes. Second, if you want the opportunity to 
determine that your wastes are nonhazardous at the point of generation 
(and therefore not subject to Subtitle C hazardous waste requirements), 
we are proposing that you must either test the wastes or use knowledge 
of constituent concentrations in the wastes using the procedures 
described in Section C below. The only exception to using procedures in 
Section C to determine that your wastes are nonhazardous would be if 
you generate paint manufacturing waste liquids that will be stored or 
treated exclusively in tanks or containers.

B. How Would I Manage My Wastes During The Period Between the Effective 
Date of The Final Rule and Initial Hazardous Waste Determination for My 
Wastes?

    If you generate wastes that are described in either K179 or K180, 
we are proposing that you could not dispose of your wastes as 
nonhazardous until you complete an initial determination which shows 
that your wastes are nonhazardous except for

[[Page 10114]]

waste liquids managed exclusively in tanks or containers prior to 
discharge to a POTW or under a NPDES permit. In the interim (from the 
time you generate the wastes to the time you make a determination on 
your wastes), you would be responsible for storing your wastes 
properly. If your wastes are determined to be hazardous and you are not 
complying with the Subtitle C storage requirements during the interim 
period, then you would be subject to an enforcement action for improper 
storage.

C. What Procedures Would I Follow to Determine If My Wastes Are 
Nonhazardous?

    We are proposing that you use the following procedures annually to 
determine if your wastes, which contain one or more constituents of 
concern, are nonhazardous at the point of generation:

    1. You must use the previous year's waste generation data 
(previous 12 consecutive months) or, if this data is not available, 
estimate the total annual quantities of paint manufacturing waste 
solids and paint manufacturing waste liquids that you expect to 
generate over the next 12 consecutive months based on current 
knowledge. You must combine the quantities of hazardous wastes 
(characteristic and otherwise listed) and nonhazardous wastes that 
meet the listing description for K179 or K180 to separately 
determine the total annual waste quantities for both the paint 
manufacturing waste solids and paint manufacturing waste liquids. 
Then, you must record the total annual quantities of paint 
manufacturing waste solids and paint manufacturing waste liquids 
that you expect to generate. If you initially estimate that your 
waste generation would fall under the low volume tier and, at any 
time within the 12 month period, the actual quantities of wastes you 
generate fall within the upper volume tier, from that point, you 
would be subject to the upper tier waste analysis requirements (see 
step 2 below). If you have not already tested your wastes, you must 
test your wastes. We are proposing that a new 12 month period for 
hazardous waste determination would start when you actually exceed 
the lower volume tier limit.
    2. You must use the recorded total annual quantities of paint 
manufacturing waste solids and paint manufacturing waste liquids 
generated by your facility to determine the appropriate annual waste 
analysis requirement for your wastes in accordance with the 
following tables:


       Table V.C-1.--Tiered Waste Analysis Requirements for Solids
------------------------------------------------------------------------
 Total annual quantity of hazardous and
 nonhazardous paint manufacturing waste       Annual waste analysis
                 solids                            requirement
------------------------------------------------------------------------
40 metric tons and less................  Test Wastes or Use knowledge of
                                          Wastes.
Over 40 metric tons....................  Test Wastes.
------------------------------------------------------------------------


      Table V.C-2.--Tiered Waste Analysis Requirements for Liquids
------------------------------------------------------------------------
 Total annual quantity of hazardous and
 nonhazardous paint manufacturing waste       Annual waste analysis
                liquids                          requirement \a\
------------------------------------------------------------------------
100 metric tons and less...............  Test Wastes or Use knowledge of
                                          Wastes.
Over 100 metric tons...................  Test Wastes.
------------------------------------------------------------------------
\a\ This requirement does not apply if the liquid wastes are stored or
  treated exclusively in tanks or containers and then sent to POTW or
  discharged under a NPDES permit.

    We are proposing to establish the volume cut-offs in the above 
tables based on the Sec. 3007 survey data on the annual quantities of 
solid and liquid wastes generated by paint production facilities. We 
used these data to develop the distributions for total hazardous and 
nonhazardous solid and total hazardous and nonhazardous liquid waste 
quantities generated across the sampled population of paint production 
facilities (see docket for Document on Distributions of Paint 
Production Wastes Generated). It was evident from these distributions 
that a relatively large percentage of the total hazardous and 
nonhazardous paint manufacturing wastes are generated by a relatively 
small percentage of the paint production facilities. For both paint 
manufacturing waste solids and liquids, approximately 90 percent of the 
total hazardous and nonhazardous wastes are generated by fewer than 20 
percent of the paint production facilities. Based on this observation 
and in order to minimize the burden on small generators, we decided to 
propose this two-tiered implementation approach for the concentration-
based listings. The tiered approach will allow small generators the 
option of testing or using knowledge of their wastes to determine 
whether or not their wastes are hazardous.
    The annual quantity cut-off for wastes above which testing is 
required (40 metric tons for waste solids and 100 metric tons for waste 
liquids) is intended to ensure that the largest quantities of wastes 
generated by paint production facilities are tested and, at the same 
time, to minimize the burden on small generators. Using the cut-off 
quantities should result in approximately 90 percent of the total 
hazardous and nonhazardous paint manufacturing waste solids and paint 
manufacturing waste liquids being tested annually. Using the cut-off 
quantities also means that fewer than 20 percent of the facilities 
would be required to test their wastes annually, and more than 80 
percent of the facilities would have the option of using knowledge. We 
believe that larger quantities of wastes have the potential for posing 
greater environmental risk than smaller quantities of wastes if a 
nonhazardous determination based on knowledge turns out to be 
inaccurate. Therefore, we believe it is reasonable to require larger 
quantity waste generators to test their wastes annually to make a 
determination, while smaller quantity waste generators are given the 
option to either test their wastes or use knowledge of their wastes 
annually to make a determination. We request comment on the 
appropriateness of giving smaller quantity waste generators the option 
of using knowledge of their wastes annually. We will consider requiring 
smaller quantity waste generators to test their wastes annually, like 
the larger quantity waste generators, if significant and defensible 
arguments are presented by commenters to support these requirements as 
necessary and appropriate.
    We also request comment on an alternative to the two-tiered 
implementation approach discussed above for implementing the 
concentration-based listings proposed in today's rule. We could adopt a 
more streamlined approach for waste generators to use in implementing 
the

[[Page 10115]]

concentration-based listings for these wastes. The streamlined 
implementation approach would allow you to rely on process knowledge or 
testing (i.e., lower volume tier requirements) regardless of the volume 
of waste generated. If the wastes contain any constituent of concern at 
or above the final risk-based listing levels, the waste would be 
subject to Subtitle C requirements. The streamlined implementation 
approach would be similar to the existing program for determining 
whether a waste exhibits a hazardous characteristic. Although we prefer 
the two-tiered approach being proposed in today's rule, we will give 
careful consideration to any arguments presented or relevant waste 
analysis data submitted in response to today's proposal (e.g., data 
showing that only a small portion of the waste streams in the industry 
exceed the listing levels) in order to decide whether a more 
streamlined approach is warranted.
1. Testing Wastes
    If the total annual quantity of your paint manufacturing waste 
solids or paint manufacturing waste liquids which meet the listing 
description of K179 or K180 falls into the tier where testing is 
required (and you have decided not to assume that your wastes are 
hazardous at the point of generation), we are proposing that you must 
test your wastes to determine whether they are nonhazardous. (Even if 
testing is required to determine that your wastes are nonhazardous, you 
could still use knowledge of your wastes to document that a constituent 
(or constituents) could not be present in your wastes and not test for 
that constituent (or constituents)). However, knowledge of the wastes 
could not be used to determine the level of constituent in your wastes.
    For those wastes that you must test, we are proposing that you use 
the following procedures:

    (i) Develop a waste sampling and analysis plan (if you do not 
already have one that is appropriate) to collect and analyze samples 
that are representative of your wastes. We discuss the waste 
sampling and analysis plan later in this section.
    (ii) From the list of constituents of concern for paint 
manufacturing waste solids or paint manufacturing waste liquids, 
select the constituents that are reasonably expected to be present 
in your wastes based on your knowledge of the wastes (e.g., 
knowledge of the constituents in your wastes based on existing 
sampling and analysis data and/or information about raw materials 
used, production processes used, and degradation products formed).
    (iii) Collect an appropriate number of samples that are 
representative of your wastes and analyze each for the constituents 
of concern selected in step (ii).
    (iv) Compare the sampling and analysis results for the 
constituents of concern in your wastes to the listing levels 
established for these constituents to determine if your wastes are 
nonhazardous.
    (v) After completing annual testing requirements for your 
wastes, if all samples taken during any three consecutive years are 
determined to be nonhazardous, then the annual testing requirements 
for your wastes are suspended.
    (vi) After suspension of the annual testing requirements for 
your wastes, if paint manufacturing, formulation, or waste treatment 
processes are significantly altered (i.e., if it could result in 
significantly higher levels of the constituents of concern for K179 
or K180), then the annual testing requirements for your wastes are 
reinstituted. In order to again suspend the annual testing 
requirements for your wastes, the requirement under step (v) above 
has to be met.

    a. Waste Sampling and Analysis Plan. Whenever you are required to 
test, we are proposing that you must develop a waste sampling and 
analysis plan prior to testing your wastes. In developing a sampling 
and analysis plan, you would have to consider any expected fluctuations 
in concentrations of constituents of concern over time. The sample 
design should be described in the waste analysis plan. The sample 
design and the sensitivity of the analytical methods used should be 
sufficient to determine whether the levels of the constituents of 
concern in the wastes are above or below the listing concentrations for 
these constituents. We do not propose to specify a particular number of 
samples that you would need to collect annually to obtain 
representative data for your wastes. The number of samples required to 
determine that the concentrations of constituents of concern in your 
wastes are below the listing levels for these constituents would depend 
on how close the actual concentrations were to the listing 
concentrations and on the variability of the wastes you generated 
during the course of the year.
    As stated in step (ii) of the procedures specified above, you would 
have to test for the constituents of concern that are reasonably 
expected to be present in your wastes. Also, as discussed previously, 
you might use knowledge of the wastes to document that a constituent 
(or constituents) could not be present in your wastes. If you determine 
that a constituent (or constituents) could not be present in your 
wastes, then you would not need to test for it. However, if you 
determine that your wastes are nonhazardous, then you would be 
responsible for ensuring that your wastes do not have any constituents 
of concern at or above the listing levels.
    We are not proposing whether you must use grab or composite 
sampling to obtain samples that are representative of your wastes. 
However, we are proposing that, following a nonhazardous determination 
for your wastes, enforcement by EPA or an authorized State would be 
based on grab samples. It would be your responsibility to ensure that 
your sampling and analysis is unbiased, precise, and representative of 
your wastes. We are not proposing to require the use of SW-846 methods 
to comply with these requirements. We are proposing to allow the use of 
either SW-846 methods or alternative methods, so long as you can 
demonstrate that the selected methods have the appropriate sensitivity, 
bias, and precision to determine the presence or absence of the 
constituents of concern at or below the listing concentrations. You 
would be required to document the: (1) Detailed standard operating 
procedures (SOPs) for the sampling and analysis protocols that you 
used; (2) sensitivity and bias of the measurement process; (3) 
precision of the analytical results for each batch of waste (or 
``super'' batch) tested; and (4) analytical results.
    We would consider the analytical results adequate to demonstrate 
that concentrations for the constituents of concern in your wastes are 
below the listing concentrations for these constituents if: (1) You 
determined the concentrations without dilution of the wastes (i.e., no 
waste or other material were added to your wastes, after the point of 
generation, which did not meet the listing description of K179 or K180) 
and (2) you conducted an analysis in which the constituents of concern 
spiked at their listing levels indicates that the constituents of 
concern are present at those levels within analytical method 
performance limits (e.g., sensitivity, bias, and precision). To 
determine the performance limits for a method, we recommend following 
quality control (QC) guidance provided in Chapters One and Two of SW-
846.
    Following sampling and analysis, if none of your waste samples 
contain any of the constituents of concern at concentrations equal to 
or greater than the listing levels established for these constituents, 
then you would determine that your tested wastes are nonhazardous. Once 
you have determined your tested wastes to be nonhazardous, you would 
decide if these wastes are representative of the wastes that you will 
generate for the remainder of the year. If your tested wastes are 
representative (or you can

[[Page 10116]]

reliably determine that these wastes exhibited the maximum 
concentrations for the constituents of concern), then you could 
determine that the wastes (or certain type of wastes) that you generate 
for the remainder of the year are also nonhazardous. As stated earlier, 
following a nonhazardous determination, you would have an obligation to 
ensure that your wastes continue to meet all of the conditions (i.e., 
constituents of concern in your wastes remain below listing levels) and 
requirements (i.e., records that support a nonhazardous determination) 
for the wastes to be deemed nonhazardous. We are also proposing annual 
follow-up sampling and analysis for wastes that you determine to be 
nonhazardous to check that these wastes continue to remain 
nonhazardous. However, if any of your waste samples contain any of the 
constituents of concern at a concentration equal to or greater than the 
listing level set for that constituent, your wastes would be listed 
hazardous wastes and are thereby subject to all applicable RCRA 
Subtitle C hazardous waste requirements.
    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 
straightforward to ensuring concentrations are below risk-based listing 
levels. However, we request comment on whether the generator should be 
allowed to average the concentrations of constituents detected in 
multiple waste samples taken from some quantity of waste generated or 
collected over a certain period of time (e.g., 60 days). Under that 
approach, the generator would calculate concentrations using an upper 
confidence limit on the mean (e.g., 95th percentile) to compare to the 
listing levels established for the constituents.
    We also request comment on whether the annual testing requirement 
should be continued beyond three years, if the generator determines the 
wastes to be nonhazardous for three consecutive years. Following 
suspension of annual testing requirements, the generator would still be 
liable if testing by EPA or an authorized State finds the waste to be 
hazardous.
2. Using Knowledge of The Wastes
    Where testing is not required, or as a supplement to testing, we 
are proposing that you could use knowledge of your wastes (e.g., 
knowledge of the constituents in your wastes based on existing sampling 
and analysis data and/or information about raw materials used, 
production processes used, and degradation products formed) to conclude 
that concentrations for the constituents of concern in your waste would 
be below the listing levels (nonhazardous waste).

D. How Would The Proposed Contingent Management Listing for Liquid 
Wastes be Implemented?

    Under this proposed listing, paint manufacturing waste liquids that 
meet the K180 listing description would be hazardous wastes unless 
managed exclusively in tanks or containers prior to discharge to a POTW 
or under a NPDES permit. If your liquid paint manufacturing wastes are 
going to be stored or treated in units other than tanks or containers, 
then they would be hazardous wastes unless you have determined (using 
the procedures described in Section C) that the constituents of concern 
in the waste liquids are below the listing levels. Therefore, you would 
need to determine as soon as the paint manufacturing waste liquids are 
generated whether they will be stored or treated in units other than 
tanks or containers. If your paint manufacturing waste liquids will be 
stored or treated in units other than tanks or containers, your wastes 
would be subject to the management requirements discussed in Section B 
above. If you are storing or treating paint manufacturing waste liquids 
on-site in tanks or containers prior to off-site disposal, you would 
need to maintain documentation showing that the wastes will be stored 
or treated exclusively in tanks or containers off-site prior to their 
discharge to a POTW or discharge under a NPDES permit. If the off-site 
disposal facility does not store or treat your paint manufacturing 
wastes exclusively in tanks or containers and the waste contains levels 
of constituents at or above the risk-based listing levels, then your 
wastes would be hazardous and you would need to store the wastes in 
accordance with the Subtitle C requirements applicable to storage of a 
hazardous waste.

E. What Records Would I Need to Keep On-site to Support a Nonhazardous 
Determination for My Wastes?

    To support a nonhazardous determination, we are proposing that you 
must keep records of the total annual quantity of paint production 
waste solids and liquids from tank and equipment cleaning operations 
that use solvents, water, and/or caustic; emission control dusts or 
sludges; wastewater treatment sludges and off specification product for 
the most recent three years from the effective date of the final rule. 
If you generate a total annual quantity of paint manufacturing wastes 
that exceeds 40 metric tons for paint manufacturing waste solids or 100 
metric tons for paint manufacturing waste liquids, we are proposing 
that you keep the following records on-site for the most recent three 
years:

    1. The documentation supporting a determination that wastes are 
nonhazardous based on knowledge that they do not contain any of the 
constituents of concern.
    2. If you determine that wastes are nonhazardous based on 
testing, then you must keep the following records on-site:
    a. The sampling and analysis plan used for collecting and 
analyzing samples representative of your wastes, including detailed 
sampling methods used to account for spatial and temporal 
variability of the wastes, and sample preparative, cleanup (if 
necessary) and determinative methods.
    b. The sampling and analysis data (including QA/QC data) and 
knowledge (if used to determine that one or more constituents of 
concern are not present in the wastes) that support a nonhazardous 
determination for your wastes (for the most recent three years of 
testing).
    3. If storing or treating paint manufacturing waste liquids on-
site in tanks or containers prior to off-site disposal, the 
documentation showing that the paint manufacturing waste liquids 
will be stored or treated solely in tanks or containers off-site 
before discharge by a facility to a POTW or discharge under an NPDES 
permit.

    We request comment on the adequacy of the above recordkeeping 
requirements to support a nonhazardous determination.

F. What Would Happen if I Do Not Meet The Recordkeeping Requirements 
for The Wastes That I Have Determined Are Nonhazardous?

    We are proposing to require recordkeeping under the authority of 
sections 2002 and 3007 of RCRA. These are requirements and not 
conditions of the waste being nonhazardous. A condition is a standard 
that you or your waste must meet in order for your waste to become or 
remain nonhazardous. If a condition is not fulfilled, then the waste is 
hazardous and subject to RCRA Subtitle C requirements. A requirement is 
an obligation whose violation would not affect the nonhazardous status 
of the waste, but would be a violation under RCRA. Failure to comply 
with these requirements could result in an enforcement action under 
section 3008 of RCRA. This section of the statute authorizes the 
imposition of civil penalties in an amount up to $27,500 for each day 
of noncompliance.

[[Page 10117]]

G. Could I Treat My Wastes to Below Listing Concentrations and Then 
Determine That My Wastes Are Nonhazardous?

1. Paint Manufacturing Waste Solids
    If your paint manufacturing waste solids are hazardous (K179) at 
the point of generation, we are proposing that you could treat the 
wastes to make them nonhazardous (i.e., remove the K179 hazardous waste 
code from your wastes). However, if your wastes are K179, they would be 
required to be treated to meet the proposed LDR treatment standards 
(see Section VI D.) before placement in a land-based unit. Following 
LDR treatment, you could choose to use the initial hazardous waste 
determination procedures for K179 wastes (see Section C above) to 
determine if your treated waste residuals are nonhazardous. If your 
treated waste residuals are determined to be nonhazardous, they would 
no longer be subject to the requirements of Subtitle C. In other words, 
the derived from hazardous waste code would no longer attach to such 
treatment residuals.
2. Paint Manufacturing Waste Liquids
    If your paint manufacturing waste liquids are hazardous (K180) at 
the point of generation because the concentration of the constituents 
of concern are not below the listing levels and they are not stored or 
treated solely in tanks or containers prior to discharge, then they 
would also be required to be treated to meet the proposed LDR treatment 
standards (see Section VI.D). However, we are proposing that the 
treatment of the K180 liquid wastes (e.g., to meet the proposed LDR 
treatment standards) would not result in the removal of the K180 
hazardous waste code from your liquid residual wastes. This is because 
the proposed listing levels for K180 are for the waste prior to any 
mixing and would necessarily be higher than the levels of the 
constituents that may exit in the liquid paint wastes mixed with other 
wastewaters in an off-site impoundment. Therefore, we believe that the 
use of listing levels for K180 would not protect against paint 
manufacturing waste liquids being placed on land.

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

A. What Are EPA's LDRs?

    The RCRA statute requires EPA to establish treatment standards for 
all wastes destined for land disposal. These are the so called ``land 
disposal restrictions'' or LDRs. For any hazardous waste identified or 
listed after November 8, 1984, EPA must promulgate LDR prohibitions and 
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)). RCRA 
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)(1), 42 U.S.C. 6924(m)(1). Once a hazardous waste is 
prohibited, the statute provides only two options for legal land 
disposal: meet the treatment standard for the waste prior to land 
disposal, or dispose of the waste in a land disposal unit that 
satisfies the statutory no migration test. A no migration unit is one 
from which there will be no migration of hazardous constituents for as 
long as the waste remains hazardous. RCRA sections 3004 (d), (e), (f), 
and (g)(5).

B. How Does EPA Develop LDR Treatment Standards?

    To establish LDR treatment standards, EPA first identifies the best 
demonstrated available technology (BDAT) 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 BDAT.
    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 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 develop and promulgate either technology-specific treatment 
standards or numerical treatment standards. Should EPA elect to use 
technology-specific standards (i.e., mandate use of a particular type 
of treatment technology), all wastes that meet the listing designations 
would have to be treated by the technology or technologies specified 
before disposal. These technologies are also identified in the Table at 
Sec. 268.40 and are further described in Sec. 268.42. Should EPA elect 
to use numerical treatment standards, the Agency allows the use of any 
technology (other than impermissible dilution) to comply with the 
treatment standards.
    With the advent of the so-called Universal Treatment Standards 
(UTS) (the same numerical standards for common hazardous constituents 
in all prohibited hazardous wastes), EPA has somewhat refined this 
approach. Thus some of the evaluation of treatability goes to the issue 
of how well the UTS express potential treatability of a prohibited 
hazardous waste. Given that the UTS typically reflect performance of 
the best treatment technologies and minimizing threats, and the 
enormous savings in administrative expense to both the regulated 
communities and to EPA, EPA seeks to apply the UTS wherever technically 
justified. See generally 59 FR 47988-991 (September 19, 1994).
    After developing the LDR treatment standards, we must also 
determine if adequate 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 
III.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 BDAT procedures in ``Best 
Demonstrated Available Technology (BDAT) Background Document for 
Quality Assurance/Quality Control Procedures and Methodology (EPA/OSW, 
October 23, 1991)''. This document is available in the docket 
supporting this rulemaking.

C. What Treatment Standards Are Proposed?

    For the hazardous constituents found in wastes from the manufacture 
of

[[Page 10118]]

paints, hazardous waste numbers K179 and K180, we are proposing to 
transfer existing numerical or universal treatment standards to the 
hazardous constituents identified in the wastes, with the exception of 
formaldehyde and styrene. We believe that it is technically feasible to 
apply these existing numerical standards to the hazardous constituents 
of K179 and K180, because the waste compositions are similar to other 
wastes for which applicable treatment technologies have been 
demonstrated. Due to the uncertainties in our assessment of the 
management of paint manufacturing waste liquids in surface 
impoundments, we are also considering an alternative proposal not to 
list paint manufacturing waste liquids. We describe this alternative 
elsewhere in this notice (see Section IV.D). If we do not list wastes 
under K180, then there would be no need for any standards for 
formaldehyde or styrene. The following discussion describes the 
approach for treatment standards assuming that paint manufacturing 
waste liquids are listed under K180.
    The hazardous constituents formaldehyde and styrene do not have 
existing numerical standards. For formaldehyde, we are proposing to 
require treatment by designated methods. When formaldehyde is present 
in K180 at levels triggering the listing, formaldehyde thus would be 
treated by the required technologies. (The other hazardous constituents 
must, of course, be treated to meet the applicable numerical 
standards.) Wastes that do not trigger the listing based on 
formaldehyde would not be subject to the formaldehyde technology 
requirement, but would be subject to all other numerical standards. The 
technology standards proposed for formaldehyde-listed K180 wastewaters 
are wet air oxidation (WETOX) or chemical or electrolytic oxidation 
(CHOXD) followed by carbon adsorption (CARBN); or combustion (CMBST). 
For nonwastewaters forms of K180, the technology standard proposed is 
combustion. These are the same treatment standards currently applicable 
to discarded product, off specification, container residues, and spill 
residues of formaldehyde (EPA hazardous waste U122).
    For styrene, we are proposing numerical standards developed for 
this rulemaking. We are proposing a wastewater standard of 0.028 mg/L 
based on activated sludge treatment and a nonwastewater standard of 
28.0 mg/kg based on thermal destruction of sludge. Alternatively, we 
propose the transfer of the ethylbenzene treatment standards of 0.057 
mg/L for wastewaters, and 10 mg/kg for nonwastewaters, because of its 
structural similarity and similar physical properties with styrene 
similar treatment technologies have been demonstrated. Ethylbenzene and 
styrene have the same number of carbon atoms, and differ only in that 
styrene has one additional double bond and hence two fewer hydrogen 
atoms in its structure. See supporting background documents for the 
additional discussion on the derivation of the UTS for this new 
constituent.
    Wastes identified as K179 or K180 may already be subject to 
hazardous waste regulation, because they exhibit a characteristic or 
are listed F001-F005 wastes. If promulgated, the treatment standards 
for K179 and K180 will apply in addition to any treatment requirements 
the wastes are currently subject to. Section 268.9(b) of current rules 
states that if a treatment standard for a listed waste which also 
exhibits a characteristic addresses the hazardous constituent which 
causes the waste to exhibit the characteristic, then, the waste is only 
subject to the treatment standard for the listed waste. Applied to 
these paint manufacturing wastes, therefore, the most likely result is 
that these wastes would be subject only to the treatment standards for 
K179 and K180 assuming that presence of organic hazardous constituents 
addressed in the treatment standard for the listed waste causes these 
wastes to exhibit a characteristic.
    The treatment standards proposed are based on technology 
performance and not upon the listing levels of concern derived from the 
Paint Risk Assessment. In the Hazardous Waste Identification Rule 
proposed November 19, 1999, we outlined ways in which the HWIR risk 
assessment could be used to develop risk-based LDR levels (see 64 FR 
63444, November 19, 1999), because the HWIR risk assessment evaluated 
the potential for constituent migration through the most significant 
environmental fate and transport pathways, looked at the total impact 
of those pathways, and considered a great number of ecological 
benchmarks. In the Paint Risk Assessment, we also have a substantial 
multipathway risk assessment that could potentially lead to treatment 
standards which could be either more lenient or stricter than current 
standards.
    However, the listing levels proposed for K180 are for the waste 
prior to any mixing, and would necessarily be higher than the levels of 
the constituents that may exist in the off-site impoundment. Therefore, 
we believe the listing levels for K180 may not be appropriate for use 
in estimating minimized threat levels, because they do not correspond 
to risk-based levels for the diluted waste in the impoundment. The 
levels indicated would not be applicable as ``universal'' risk-based 
treatment standards (as we hope HWIR could eventually be).
    Our preference is to develop a single set of treatment levels that 
would be applicable to all hazardous wastes. Waste-by-waste modeling 
would not only be highly resource intensive, but could lead to the 
potentially false conclusion that higher levels are justified only to 
realize that if we look at a range of wastes together we might conclude 
that more stringent treatment standards are needed to minimize threat 
to human health and the environment. Therefore, we believe the proposed 
listing levels are not minimized threat levels across all wastes and 
have chosen to propose treatment standards based on the performance of 
the best determined available technology (BDAT). We believe that there 
is still uncertainty as to what quantified levels minimize threats to 
human health and the environment, and therefore, we are proposing 
standards based on the performance of the BDAT. See HWTC vs. EPA.886 f. 
2d 355, 361-63 (D.C. Cir. 1989) (accepting this approach).
    The proposed treatment standards are set out in Table VI-1 below. 
Where EPA is proposing numerical concentration limits the use of any 
technology capable of achieving the proposed treatment standards would 
be allowed, except those treatment or reclamation practices 
constituting land disposal or impermissible dilution (see 40 CFR 
268.3). As stated above, when formaldehyde is present in K180 at levels 
triggering the listing, we are proposing that formaldehyde must be 
treated by the required technologies. The other hazardous constituents 
would, of course, be treated to meet the applicable numerical 
standards.

[[Page 10119]]



                                           Table VI-1.--Treatment Standards for Hazardous Waste K179 and K180
--------------------------------------------------------------------------------------------------------------------------------------------------------
          Regulated hazardous constituent                                                   Wastewaters                         Nonwastewaters
---------------------------------------------------                            -------------------------------------------------------------------------
                                                     K179 solids  K180 liquids                                        Concentration in mg/kg \4\ unless
             Common name               CAS \1\ No.                                  Concentration in mg/L,\2\ or          noted as ``mg/L TCLP'', or
                                                                                        technology code \3\                  technology code \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Acrylamide...........................      79-06-1            X             X   19.................................  23
Acrylonitrile........................     107-13-1            X             X   0.24...............................  84
n-Butyl alcohol......................      71-36-3  ............            X   5.6................................  2.6
Ethyl benzene........................     100-41-4  ............            X   0.057..............................  10
Formaldehyde \5\.....................      50-00-0  ............            X   (WETOX or CHOXD) fb CARBN; or CMBST  CMBST
Methylene chloride...................      75-09-2  ............            X   0.089..............................  30
Methyl isobutyl ketone...............     108-10-1            X             X   0.14...............................  33
Methyl methacrylate..................      80-62-6            X             X   0.14...............................  160
Styrene..............................     100-42-5  ............            X   0.028..............................  28
Toluene..............................     108-88-3  ............            X   0.080..............................  10
Xylenes--mixed isomers (sum of o-, m-    1330-20-7  ............            X   0.32...............................  30
 , and p-xylene concentrations).
Antimony.............................    7440-36-0            X             X   1.9................................  1.15 mg/L TCLP
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ CAS means Chemical Abstract Services. When the waste code and/or regulated constituents are described as a combination of a chemical with its salts
  and/or esters, the CAS number is given for the parent compound only.
\2\ Concentration standards for wastewaters are expressed in mg/L and are based on analysis of composite samples.
\3\ All treatment standards expressed as a Technology Code or combination of Technology Codes are explained in detail in 40 CFR 268.42 Table 1-
  Technology Codes and Descriptions of Technology-Based Standards.
\4\ Except for Metals (EP or TCLP) and Cyanides (Total and Amenable) the nonwastewater treatment standards expressed as a concentration were
  established, in part, based upon incineration in units operated in accordance with the technical requirements of 40 CFR Part 264, Subpart O, or Part
  265, Subpart O, or based upon combustion in fuel substitution units operating in accordance with applicable technical requirements. A facility may
  comply with these treatment standards according to provisions in 40 CFR 268.40(d). All concentration standards for nonwastewaters are based on
  analysis of grab samples.
\5\ Wastes that do not exceed the Sec.  261.32 listing criteria for this constituent are not subject to the treatment technology requirements, but are
  subject to all other numerical standards.

D. Other LDR-Related Provisions

1. F039 Multisource Leachate and Universal Treatment Standards
    F039 applies to multiple listed hazardous waste landfill leachates 
in lieu of the original waste codes, and F039 wastes are subject to 
numerical treatment standards applicable to all listed wastes. To 
maintain the regulatory implementation benefits of having one waste 
code for multisource leachate, the treatment standards for F039 must be 
updated to include the constituents of newly listed wastes. Otherwise, 
multiple waste codes would again be applicable. Therefore, we propose 
to add to F039 the additional constituents acrylamide and styrene. We 
also propose to add the numerical standards for styrene to the 
Universal Treatment Standards of 40 CFR 268.48 \45\ Characteristic 
wastes are already subject to treatment standards for acrylamide. As a 
result, characteristic wastes subject to treatment requirements for 
underlying hazardous constituents will also have to comply with these 
treatment standards.
---------------------------------------------------------------------------

    \45\ As noted previously, we are considering an alternative 
proposal not to list paint manufacturing waste liquids. If we do not 
like K180, then there would be no need to add styrene to the F039 or 
UTS standards.
---------------------------------------------------------------------------

    We are proposing these changes, because acrylamide and styrene are 
toxic constituents. When paint manufacturing (or production) wastes are 
managed with other wastes at commercial treatment facilities, the 
combined waste residues that result for disposal would need to meet all 
part 268 requirements, including requirements for C disposal, if the 
paint listing codes were retained or mixed with other listed wastes. 
The new listing codes may also be retained if treatment meets only the 
LDR standards and not the listing levels. Thus, leachates that could be 
subject to multiple codes could be formed. By adding these constituents 
to F039, the regulatory benefits of having one waste code for 
multisource leachate is maintained.
    Based on the treatment studies compiled for acrylamide and styrene, 
we believe the proposed treatment standards for these constituents can 
readily be achieved in the F039 leachate wastes, and in characteristic 
wastes. Nevertheless, we request comments on this assumption.

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

1. What Is a Capacity Determination?
    EPA must determine whether adequate alternative treatment capacity 
exists nationally to manage the wastes subject to LDR treatment 
standards. RCRA Section 3004(h)(2). Thus, LDRs to be made effective 
immediately--in this case when the new listings are effective 
(typically 6 months after the new listings are published in the Federal 
Register)--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 quantity of wastes 
that is not disposed on the land, such as treatment in tanks, is not 
included in the quantities requiring additional treatment as a result 
of the LDRs. Also, land-disposed

[[Page 10120]]

wastes that do not require alternative or additional treatment (i.e., 
those that currently are treated to meet the LDR treatment standards) 
are excluded from the required capacity estimates. 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 
EPA's estimates of needed commercial capacity. EPA then compares the 
resulting estimates of required commercial capacity to estimates of 
available commercial capacity. If adequate commercial capacity exists, 
the waste is restricted from further land disposal. If protective 
alternative 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 
promulgated 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, we 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 may 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, 
we also continue to update and monitor changes in available commercial 
treatment capacity.
    For wastes required to meet today's proposed treatment standards, 
we request data on the annual generation volumes and characteristics of 
wastes affected by this proposed rule, including proposed hazardous 
wastes K179 and K180 in wastewater and nonwastewater forms. We also 
request data on 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.
    For available capacity to meet the LDR requirements, we 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 expand or reduce 
existing capacity or construct new capacity. In addition, we request 
information on the time and necessary procedures required for permit 
modification for generators or commercial treatment or disposal 
facilities to manage the wastes, required changes for operating 
practices due to the proposed listings or proposed additional 
constituents to be regulated in the wastes, and any waste minimization 
activities associated with the wastes. Of particular interest to us are 
chemical and physical constraints of treatment technologies for these 
wastes and any problems for disposing of these wastes. Also of interest 
are any analytical difficulties associated with identifying and 
monitoring the regulated constituents in these wastes.
2. What Are The Capacity Analysis Results?
    This preamble only provides a 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 
Paint Production Wastes (Proposed Rule), January 2001'' (i.e., the 
Capacity Background Document).
    For this capacity analysis, we examined data on waste 
characteristics (such as whether the waste is a solid, solvent, or an 
aqueous waste) and management practices gathered for the paint 
manufacturing hazardous waste listing determination. We also examined 
data on available treatment or recovery capacity for these wastes. The 
sources for these data are the 2000 RCRA section 3007 survey and site 
visits (see the docket for this proposed regulation for more 
information on these survey instruments and facility activities), the 
available treatment capacity data submission that was collected in the 
1990's, and the 1997 Biennial Report (BR).
    We derived our estimated quantities requiring alternative or 
additional treatment to meet the LDR treatment standards from the 
estimated population for paint manufacturers (i.e., approximately one 
thousand paint manufacturing facilities in the United States, as 
discussed earlier for RCRA Section 3007 Survey (Section II.G )). K179 
is paint manufacturing waste solid, so it is generated as a 
nonwastewater, as defined in 40 CFR 268.2(d) and (f) (i.e., 
nonwastewaters are wastes that do not meet the criteria for wastewaters 
which contain less than 1% by weight total organic carbon (TOC) and 
less than 1% by weight total suspended solids (TSS)). K180 is a paint 
manufacturing waste liquid and could be a nonwastewater or wastewater 
form based on the above definition.
    Generally, facilities may combine a variety of wastes (for example, 
sludges from tank cleaning operations and wastewater treatment) and 
send their wastes off to one waste management unit. Some waste types 
are managed separately (for example, wastes with some value for fuel 
blending). We used weighted and extrapolated universe waste quantities 
from approximately one thousand paint manufacturing facilities for our 
capacity analysis. After examining waste generation quantities and 
their management practices, we estimated that approximately 17,000 tons 
per year of K179 and K180 wastes may require alternative or additional 
treatment to meet the LDR standards. This amount of waste covers the 
quantities which are currently land disposed, managed in a Subtitle D 
combustion unit, or uncertain on their management practices.
    The quantities requiring alternative or additional treatment could 
be smaller because much of the proposed and newly identified paint 
manufacturing (or production) waste is mixed with existing listed and/
or characteristic wastes which already had to meet the LDR requirements 
for at least some of the proposed constituents for K179 and K180 
wastes. Also, most of the surveyed facilities that reported generation 
of waste residuals of concern under this listing determination reported 
that they recycled or reused the residuals to some extent. Furthermore, 
waste generated from the production batches are also generated in 
batches rather than in a continuous stream. We recognize the volume and 
type of paint produced, degree of automation, amount of non land-based 
recycling, age of facility, and the speed at which facilities may 
change product formulations can affect types and amount of waste 
generated. Therefore, the actual annual quantity of waste requiring 
commercial treatment may fluctuate due to these variations. However, we 
find that there is no shortfall for available commercial treatment 
capacity for these wastes proposed in today's rule. For a more detailed 
analysis regarding the amount of paint manufacturing (or production)

[[Page 10121]]

wastes requiring treatment to meet the LDR standards, see the Capacity 
Background Document in the public docket for this proposed rule.
    As discussed in the section for the LDR treatment standards, we are 
proposing that numerical or technology-specific treatment standards be 
applied to K179 and K180 wastes, depending on the constituent in the 
wastes. For nonwastewater forms of these wastes, we anticipate that 
commercially available incineration, followed by stabilization if 
necessary (for antimony), can be used to meet these numerical treatment 
standards. For one organic constituent (formaldehyde) in wastewater and 
nonwastewater forms of K180, we are proposing to require treatment by 
specified methods. For formaldehyde in K180 wastewater we are proposing 
the following technologies as methods of treatment, wet air oxidation 
(WETOX) or chemical or electrolytic oxidation (CHOXD) followed by 
carbon adsorption (CARBN); or combustion (CMBST). For this constituent 
in the nonwastewater form of K180, the required technology standard 
proposed is combustion. We assume that facilities would achieve waste 
treatment standards using combustion, stabilization, or both for K179 
and K180 wastes. The quantity of commercially available combustion 
capacity for sludge, solid, and liquids is well over one million tons 
per year based on 1997 Biennial Report data. The quantity of 
commercially available stabilization capacity is at least seven million 
tons per year based on 1995 Biennial Report data. Also, based on the 
data submittals in the early 1990's and 1997 BR data, we estimated that 
at least 34 million tons per year of commercial wastewater treatment 
capacity are available. Please note that facilities could use any 
available technologies (except impermissible dilution) to achieve the 
LDR numerical standards for these wastes.
    Based on the results of the RCRA section 3007 survey and the site 
visits, we did not identify any paint manufacturing facilities that 
manage these proposed wastes in on-site surface impoundments. From the 
available information, we found that at least one wastewater treatment 
plant accepted proposed paint manufacturing waste liquids (K180) from 
the paint production industry, and the facility managed these wastes in 
a lined surface impoundment. Assuming such an impoundment satisfies 
requirements of section 3005(j)(11) (in essence, meets minimum 
technological requirements and is dredged annually), such wastes would 
not require treatment. If any wastes are managed in an impoundment not 
satisfying requirements of 3005(j)(11) (e.g., an unlined surface 
impoundment) of a wastewater treatment system, the wastes would be 
subject to land disposal prohibitions. However, we anticipate that very 
few facilities, if any, would manage the newly identified paint 
manufacturing wastes in such impoundments.
    Based on the foregoing, we expect that sufficient capacity exists 
to treat the proposed K179 and K180 wastes that would require 
alternative or additional treatment. Therefore, we are proposing to not 
grant a national capacity variance for these wastes.
    Further, soil and debris contaminated with these newly identified 
wastes may be subject to the LDRs (see LDR Treatment Standards for Soil 
in LDR Phase IV Final Rule, 63 FR 28602, May 26, 1998; 40 CFR 268.45 
Treatment Standards for Hazardous Debris), but we believe that the 
contaminated soil and debris, if any, would not require substantial 
commercial treatment capacity. There are no data showing such 
contaminated soil and debris are currently generated. We expect that 
the majority of contaminated soil and debris, if generated, will be 
managed on-site. Therefore, we are not proposing to grant a national 
capacity variance for hazardous soil and debris contaminated with these 
wastes covered under this proposal.
    Based on the RCRA section 3007 Survey conducted in early 2000 
(which collected 1998 data), there are no data showing that the newly 
proposed wastes are managed by underground injection wells. Also, based 
on the 2000 RCRA section 3007 Survey, there are no data showing mixed 
radioactive wastes associated with the proposed listings. We are 
proposing to not grant a national capacity variance for underground 
injected wastes, mixed radioactive wastes (i.e., radioactive wastes 
mixed with K179 and K180), or soil and debris contaminated with these 
mixed radioactive wastes, if such wastes are generated.
    Therefore, we propose that LDR treatment standards thus become 
effective when the listing determinations become effective for the 
wastes covered under today's rule. This conforms to RCRA section 
3004(h)(1), which indicates that land disposal prohibitions must take 
effect immediately when there is sufficient treatment or disposal 
capacity available for the wastes. However, we may need to revise 
capacity analyses or capacity variance decisions if final listing 
determinations are changed or if we receive data and information to 
warrant any revision.
    We request comments on the estimated quantities requiring 
alternative treatment and information on characteristics of the 
affected wastes, management practices for these wastes, and available 
treatment, recovery or disposal capacity for the wastes. We also 
request comments on whether any facility uses surface impoundment or 
underground injection to manage these wastes. In addition, we solicit 
comments on our decision not to grant a national capacity variance for 
any of the affected wastes. We will consider all available data and 
information provided during the public comment period and revise our 
capacity analysis accordingly in making the final capacity 
determinations. Please note that the ultimate volumes of wastes 
estimated to require alternative or additional commercial treatment may 
change if the final listing determinations change. Should this occur, 
we will revise the capacity analysis accordingly.
3. What Is the Available Treatment Capacity for Other Wastes Subject to 
Revised UTS and F039 Standards?
    With respect to the revisions to the F039 and UTS lists, as 
discussed earlier in the section on K179 and K180 treatment standards, 
we are proposing to add acrylamide and styrene to the list of regulated 
constituents in F039 (40 CFR section 268.40). We are also proposing to 
add styrene to the UTS table (40 CFR section 268.48). Acrylamide is 
currently listed in the Appendix VIII of part 261. EPA is proposing to 
add styrene in the Appendix VIII as discussed in the earlier section 
(Section II). We have estimated what portion of the F039 or 
characteristic wastes (which require treatment of underlying hazardous 
constituents to UTS levels) may be required to meet these new treatment 
standards. We request comments on the estimates, the appropriate means 
of treatment (if necessary), and the sufficiency of available treatment 
capacity for the affected wastes by the addition of these constituents 
to the F039 and UTS lists.
    When changing the treatment requirements for wastes already subject 
to LDR (including F039 under 40 CFR 261.31 and characteristic wastes 
under 40 CFR 261.24) for which the potential capacity variance periods 
have expired, EPA no longer has authority to use RCRA section 
3004(h)(2) to grant a capacity variance to these wastes. However, EPA 
is guided by the overall objective of section 3004(h), namely that 
treatment standards which best

[[Page 10122]]

accomplish the goal of RCRA section 3004(m) (to minimize threats posed 
by land disposal) should take effect as soon as possible, consistent 
with availability of treatment capacity.
    We expect that only a limited quantity of hazardous waste leachate, 
if any, may be generated from the disposal of newly-proposed K179 and 
K180 wastes and added to the generation of leachates from other 
multiple restricted hazardous wastes already subject to LDR.
    For the amount of characteristic wastes or leachates generated from 
those previously regulated hazardous wastes that would be subject only 
to the new treatment standards for these constituents, we evaluated the 
universe of wastes that might be impacted by revisions to the lists of 
regulated constituents for F039 and UTS based on limited information. 
Based on 1997 Biennial Report data and some assumptions of waste 
compositions and their potential for land disposal, we were able to 
estimate the potential need for additional treatment. For example, we 
estimated an upper bound of 7,000 tons per year of nonwastewaters mixed 
with other waste codes, the F039 leachate from which would be 
potentially impacted by the revision to the F039 treatment standards. 
In a similar fashion, we estimated that approximately 250,000 tons per 
year of characteristic nonwastewaters potentially might be affected by 
the proposed changes.
    These upper bound estimates are most likely significantly 
overstated since only a portion of each estimated waste volume may 
contain the proposed additional constituents at concentrations above 
the proposed level specified in the UTS table and the F039 list. The 
estimates assume that these constituents are present at levels above 
the proposed treatment standards in all of these F039 and 
characteristically hazardous wastes and require alternative treatment, 
when it is likely that this may be true in only a small subset of the 
cases (as described in the Capacity Background Document). Furthermore, 
EPA does not anticipate that waste volumes subject to treatment for 
F039 or characteristic wastes would significantly increase because 
waste generators already are required to comply with the treatment 
requirements for other already regulated organic or metal constituents 
that may be present in the wastes. The volumes of wastes for which 
additional treatment is needed solely due to the addition of these 
constituents to the F039 and UTS lists are therefore expected to be 
small. See the Capacity Background Document for detailed analysis.
    Even if we have underestimated the projected volume of wastes 
requiring treatment, we believe that there still would be no shortage 
of treatment capacity. Based on data submittals in the early 1990's and 
1997 BRS data, EPA has estimated that at least 34 million tons per year 
of commercial wastewater treatment capacity are available, and 
approximately 1.6 million tons per year of liquid, sludge, and solid 
commercial combustion capacity are available. Also, as discussed 
earlier in this section, there are seven million tons of available 
stabilization capacity. These are well above the quantities of F039 or 
characteristic wastes potentially requiring treatment for the proposed 
additional constituents even under the conservative screening 
assumptions described above. Therefore, we are proposing a decision not 
to delay the effective date for adding these constituents to the lists 
of constituents for F039 and UTS.
    We request comments on our proposed decision to not delay the 
effective date for adding these constituents to the lists of 
constituents for F039 and UTS. We request data on the annual generation 
volumes and characteristics of wastes affected by the proposed changes 
to UTS and F039 in wastewater and nonwastewater forms (if any), 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 available for treating the affected 
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. How Would This Rule Affect State Authorization?

    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), which identifies the Federal program 
requirements that are promulgated pursuant to HSWA and take effect in 
all States, regardless of their authorization status. The land disposal 
restrictions for these wastes are promulgated pursuant to RCRA section 
3004(g) and (m), also HSWA provisions. Table 2 in 40 CFR 271.1(j) is 
modified to indicate that these requirements are self-implementing. 
States may apply for 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 
would implement them.
    A State submitting a program modification for the portions of this 
proposed rule promulgated pursuant to

[[Page 10123]]

HSWA authority could 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. The deadline by which the States 
would need to modify their programs to adopt this proposed regulation 
is determined by the date of promulgation of a final rule in accordance 
with section 271.21(e)(2). Table 1 at 40 CFR 271.1 is amended 
accordingly. Once EPA approves the modification, the State requirements 
would become RCRA Subtitle C requirements.
    States with authorized RCRA programs already may have regulations 
similar to those in this proposed rule. These State regulations have 
not been assessed against the Federal regulations 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 Would Need to Notify EPA That They Have a Hazardous Waste?

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

D. What Would Generators and Transporters Have to Do?

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

E. Which Facilities Would Be Subject to Permitting?

1. Facilities Newly Subject to RCRA Permit Requirements
    Facilities that treat, store, or dispose of wastes that are subject 
to RCRA regulation for the first time by this proposed rule (that is, 
facilities that have not previously received a permit pursuant to 
Section 3005 of RCRA and are not currently operating pursuant to 
interim status), could be eligible for interim status (see section 
3005(e)(1)(A)(ii) of RCRA). To obtain interim status based on 
treatment, storage, or disposal of such newly identified wastes, 
eligible facilities would be required to comply with 40 CFR 270.70(a) 
and 270.10(e) by providing notice under section 3010 and submitting a 
Part A permit application no later than 6 months after date of 
publication of the final rule. Such facilities would be 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)(1)(A)(ii) would also need to submit a Part B permit application 
and certify that the facility is in compliance with all applicable 
groundwater monitoring and financial responsibility requirements. If 
the facility fails to submit these certifications and a permit 
application, then interim status would terminate on that date.
2. Existing Interim Status Facilities
    Pursuant to 40 CFR 270.72(a)(1), all existing hazardous waste 
management facilities (as defined in 40 CFR 270.2) that treat, store, 
or dispose of the newly identified hazardous wastes and are currently 
operating pursuant to interim status under section 3005(e) of RCRA, 
would need to file an amended Part A permit application with EPA no 
later than six months after date of publication of a final rule. By 
doing this, the facility could continue managing the newly listed 
wastes. If the facility fails to file an amended Part A application by 
that date, the facility would not receive interim status for management 
of the newly listed hazardous wastes and may not manage those wastes 
until the facility receives either a permit or a change in interim 
status allowing such activity (40 CFR 270.10(g)).
3. Permitted Facilities
    Facilities that already have RCRA permits would need to request 
permit

[[Page 10124]]

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. 
Please note that under this proposal, liquids managed in tanks or 
containers would only become newly listed waste if they meet the 
listing description for constituent concentration levels and if they 
are not managed solely in tanks and containers and then discharged 
directly from a POTW or centralized wastewater treatment facility. 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.
    For states which have not yet picked up the permit modification 
tables of 40 CFR 270.42, ``major'' and ``minor'' permit modifications 
should be applied as appropriate to the permit modification request.
4. Units
    Units in which newly identified hazardous wastes are generated or 
managed would be subject to all applicable requirements of 40 CFR part 
264 for permitted facilities or 40 CFR part 265 for interim status 
facilities, unless the unit is excluded from such permitting by other 
provisions, such as the wastewater treatment tank exclusions (40 CFR 
264.1(g)(6) and 265.1(c)(10)) and the product storage tank exclusion 
(40 CFR 261.4(c)). Examples of units to which these exclusions could 
never apply include landfills, waste piles, incinerators, and any other 
miscellaneous units in which these wastes may be generated or managed.
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 parts 264 and 265 
would be subject to both the general closure and post-closure 
requirements of subpart G of 40 CFR parts 264 and 265 and the unit-
specific closure requirements set forth in the applicable unit 
technical standards subpart of 40 CFR part 264 or 265 (e.g., Subpart N 
for landfill units). In addition, EPA promulgated a final rule that 
allows, under limited circumstances, regulated landfills or surface 
impoundments to cease managing hazardous waste, but to delay Subtitle C 
closure to allow the unit to continue to manage nonhazardous waste for 
a period of time prior to closure of the unit (see 54 FR 33376, August 
14, 1989). Units for which closure is delayed continue to be subject to 
all applicable 40 CFR parts 264 and 265 requirements. Dates and 
procedures for submittal of necessary demonstrations, permit 
applications, and revised applications are detailed in 40 CFR 
264.113(c) through (e) and 265.113(c) through (e).

VIII. CERCLA Designation and Reportable Quantities

A. What Is the Relationship Between RCRA and CERCLA?

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

B. How Does EPA Determine Reportable Quantities?

    Under CERCLA, all new hazardous substances automatically have a 
statutory one-pound RQ. EPA adjusts the RQ of a newly added hazardous 
substance based on an evaluation of its intrinsic physical, chemical, 
and toxic properties. These intrinsic properties--called ``primary 
criteria''--are aquatic toxicity, mammalian toxicity (oral, dermal, and 
inhalation), ignitability, reactivity, chronic toxicity, and potential 
carcinogenicity. EPA evaluates the data for a hazardous substance for 
each primary criterion. To adjust the RQs, EPA ranks each criterion on 
a scale that corresponds to an RQ value of 1, 10, 100, 1,000, or 5,000 
pounds. For each criterion, EPA establishes a tentative RQ. A hazardous 
substance may receive several tentative RQ values based on its 
particular intrinsic properties. The lowest of the tentative RQs 
becomes the ``primary criteria RQ'' for that substance.
    After the primary criteria RQs are assigned, EPA further evaluates 
substances for their susceptibility to certain degradative processes. 
These are secondary adjustment criteria. The natural degradative 
processes are biodegradation, hydrolysis, and photolysis (BHP). If a 
hazardous substance, when released into the environment, degrades 
rapidly to a less hazardous form by one or more of the BHP processes, 
EPA generally raises its RQ (as determined by the primary RQ

[[Page 10125]]

adjustment criteria) by one level. Conversely, if a hazardous substance 
degrades to a more hazardous product after its release, EPA assigns an 
RQ to the original substance equal to the RQ for the more hazardous 
substance.
    The standard methodology used to adjust the RQs for RCRA hazardous 
waste streams differs from the methodology applied to individual 
hazardous substances. The procedure for assigning RQs to RCRA waste 
streams is based on the results of an analysis of the hazardous 
constituents of the waste streams. The constituents of each RCRA 
hazardous waste stream are identified in 40 CFR part 261, Appendix VII. 
EPA first determines an RQ for each hazardous constituent within the 
waste stream using the methodology described above. The lowest RQ value 
of these constituents becomes the adjusted RQ for the waste stream. 
When there are hazardous constituents of a RCRA waste stream that are 
not CERCLA hazardous substances, the Agency develops an RQ, called a 
``reference RQ,'' for these constituents in order to assign an 
appropriate RQ to the waste stream (see 48 FR 23565, May 25, 1983). In 
other words, the Agency derives the RQ for waste streams based on the 
lowest RQ of all of the hazardous constituents, regardless of whether 
they are CERCLA hazardous substances.

C. Is EPA Proposing to Adjust the Statutory One Pound RQ for These 
Wastes?

    In today's proposed rule, EPA is proposing to assign 100-pound 
adjusted RQs to the K179 and K180 wastes. The RQs for each of the 
constituents contained in the two proposed wastes are presented in the 
table below.\46\
---------------------------------------------------------------------------

    \46\ We are considering an alternative proposal not to list 
paint manufacturing waste liquids (see Section IV.D). If we do not 
list wastes under K180, then there would be no need to promulgate 
adjusted RQs for the following constituents: n-butyl alcohol, 
methylene chloride, formaldehyde, ethylbenzene, styrene, toluene, 
and xylene.

  Table VIII.C-1.--Proposed RQs for Constituents Identified in K179 and
                               K180 Wastes
------------------------------------------------------------------------
                                                          Constituent RQ
        Constituents in K179 & K180 waste streams           (lbs.)  (40
                                                            CFR 302.4)
------------------------------------------------------------------------
Acrylonitrile...........................................             100
Acrylamide..............................................            5000
Antimony................................................            5000
N-butyl alcohol.........................................            5000
Methylene chloride (dichloromethane)....................            1000
Formaldehyde............................................             100
Ethylbenzene............................................            1000
Methyl isobutyl ketone..................................            5000
Methyl methacrylate.....................................            1000
Styrene.................................................            1000
Toluene.................................................            1000
Xylene..................................................            1000
------------------------------------------------------------------------

D. How Would a Concentration-Based Hazardous Waste Listing Approach 
Relate to My Reporting Obligations Under CERCLA? When Would I Need To 
Report a Release of These Wastes Under CERCLA?

    Today's proposed hazardous waste listings are based on the 
concentrations of the hazardous constituents in the wastes. Adjusted 
RQs of 100 pounds are being proposed for these wastes based on the 
lowest RQ of the hazardous constituents in the wastes. Notification is 
required under CERCLA when wastes meeting the listing descriptions are 
released into the environment in a quantity that equals or exceeds the 
RQ for the waste.
    For CERCLA reporting purposes, the Clean Water Act mixture rule (40 
CFR 302.6) applies to releases of these wastes when the quantity (or 
concentrations) of all of the hazardous constituents in the waste are 
known. In such a case, notification is required where an amount of 
waste is released that contains an RQ or more of any hazardous 
substance contained in the waste. When the quantity (or concentration) 
of one or more of the hazardous constituents is not known, notification 
is required when the quantity of waste released equals or exceeds the 
RQ for the waste stream.
    Although today's proposed hazardous waste listings are based on the 
concentrations of the hazardous constituents in the wastes, the Agency 
recognizes that it may not be necessary for a generator of these wastes 
to learn the concentrations of every hazardous constituent in the 
wastes in order to determine whether one of the listing descriptions 
applies. This is because a waste stream need exceed only one of the 
constituent-specific regulatory levels to meet one of the listing 
descriptions. Moreover, many generators, after testing their waste 
streams initially, may use knowledge of the waste, or of the process 
generating the waste, to determine that their waste is or is not 
hazardous under 40 CFR 262.11. Today's proposed rule requires sampling 
and analysis only for large-volume generators of the proposed waste 
streams. Therefore, many smaller generators may not know the 
concentrations of the constituents in their wastes. For these reasons, 
EPA believes that many, if not a majority, of the generators of these 
wastes may not know the concentrations of every constituent in these 
wastes, and may not, therefore, be able to apply the mixture rule.

E. How Would I Report a Release?

    To report a release of proposed K179 or K180 (or any other CERCLA 
hazardous substance) that equals or exceeds its RQ, you would need to 
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 could also need to notify State and local authorities. The 
Emergency Planning and Community Right-to-Know Act (EPCRA) requires 
that owners and operators of certain facilities report releases of 
CERCLA hazardous substances and EPCRA extremely hazardous substances 
(see list in 40 CFR part 355, appendix A) to State and local 
authorities. After the release of an RQ or more of any of those 
substances, you must report immediately to the community emergency 
coordinator of the local emergency planning committee for any area 
likely to be affected by the release, and to the State emergency 
response commission of any State likely to be affected by the release.

F. What Is the Statutory Authority for This Program?

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

[[Page 10126]]

releases of CERCLA hazardous substances and EPCRA extremely hazardous 
substances to State and local authorities.

G. How Can I Influence EPA's Thinking on Regulating K179 and K180 Under 
CERCLA?

    In developing this proposal, EPA tried to address the concerns of 
all our stakeholders. Your comments will help us to improve this 
proposal. We invite you to provide your views on this proposal and how 
it may affect you. We also are interested in receiving any comments 
that you have on the information provided in Table VIII.C-1, including 
the hazardous constituents identified for proposed K179 and K180 and 
the maximum observed concentrations for each constituent.

IX. Analytical And Regulatory Requirements

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

    Under Executive Order 12866, EPA must determine whether a 
regulatory action is significant and, therefore, subject to 
comprehensive review by the Office of Management and Budget (OMB), and 
the other provisions of the Executive Order. A significant regulatory 
action is defined by the Order 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.

    OMB has determined that today's proposed rule is a ``significant 
regulatory action,'' because it may raise novel legal or policy issues. 
As such, this action was submitted to OMB for review. Changes made in 
response to OMB suggestions or recommendations will be documented in 
the public record.
    Based on the results of our economic analysis of the proposed rule, 
we believe that the annual economic effects of this proposed rule do 
not meet the requirements for an economically significant regulatory 
action (see point one above). On the national level, the annual 
compliance costs of this rule, as proposed, are estimated to be less 
than $100 million. We are unable to quantify the benefits of the 
proposed rule, but anticipate that such benefits would also be less 
than $100 million. Furthermore, we do not expect this proposed rule to 
adversely affect, in a material way, the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities.
    We have prepared two economic support documents for this proposed 
action. These are: Economic Assessment for the Proposed Concentration-
Based Listing of Wastewaters and Non-Wastewaters from the Production of 
Paints and Coatings, and, Regulatory Flexibility Screening Analysis for 
the Proposed Concentration-Based Listing of Wastewaters and Non-
Wastewaters from the Production of Paints and Coatings. The Economic 
Assessment addresses, among other elements, compliance costs to the 
regulated community, industry economic impacts, qualitative benefits, 
children's health, unfunded mandates, regulatory takings, federalism, 
and environmental justice. The Regulatory Flexibility Screening 
Analysis (RFSA) examines impacts to small entities that may result from 
this action, as proposed. These analyses cover not only the impacts on 
the paint industry, but also the potential impacts on land disposal 
facilities that have disposed of the wastes considered in this 
rulemaking. Because of the proposed listing, leachate from these 
landfills may be hazardous under the Derived-from Rule. Also, when the 
leachate from these two wastes mixes with leachate from other wastes 
disposed in these landfills the entire leachate quantity may be 
considered hazardous under the Mixture Rule. A summary of findings from 
this Economic Assessment is presented directly below. The RFSA is 
summarized in Part B of this Section. The complete Economic Assessment 
and RFSA documents are available in the RCRA docket established for 
this action.
    Paint manufacturers produce varnishes, lacquers, enamels and 
shellac, putties, wood fillers and sealers, paint and varnish removers, 
paint and brush cleaners, and allied products. The products are 
produced for four end-use markets: architectural coatings, product 
finishes for original equipment manufacturers, special purpose 
coatings, and allied paint products. According to Census data for 1997 
there are approximately 1,495 facilities in operation in the U.S., 
owned by 1,206 different companies. Total production is estimated to 
range from 1.2 billion and 1.5 billion gallons per year between 1992 
and 1998, with a total product value of $17.2 billion in 1998. This 
industry segmentation includes all facilities identified in Standard 
Identification Classification (SIC) 2851 and under the North American 
Industrial Classification (NAICS) code 325510; this includes some 
manufacturers of miscellaneous allied paint products which will not be 
impacted by the proposed rule.
    Approximately 1,146, or 95 percent of the paint manufacturing 
companies in the U.S. are estimated to be small according to the Small 
Business Administration (SBA) definition for small (fewer than 500 
employees) based on corporate level data.\47\ Many of these facilities 
(and companies) are very small, with fewer than ten full-time 
employees.
---------------------------------------------------------------------------

    \47\ Small Business Size Standards--Matched to North American 
Industrial Classification System (NAICS) Codes, Effective October 1, 
2000, Small Business Administration (SBA)
---------------------------------------------------------------------------

    While the Census of Manufacturers identifies 1,495 facilities, not 
all of these facilities are actually paint manufacturers potentially 
affected by the proposed waste listing. The Agency has estimated, using 
a RCRA 3007 survey of the industry, that there are 972 facilities that 
manufacture paints and coatings in the U.S. Of this total, we estimate 
that 615 facilities operated by 494 companies generate the waste 
streams of concern for this proposed listing. On the basis of the 
extrapolated survey, we estimate that these facilities generate nearly 
107,000 metric tons of the targeted waste streams (K179 and K180), of 
which about 36 percent is currently managed as hazardous waste. This 
analysis relies primarily on data generated through the Agency's survey 
of the industry, augmenting this information with Census and other 
industry specific information as appropriate.
    We have developed impact estimates for the concentration-based 
listing proposal (the Agency's preferred approach) and two key options: 
A no-list or status quo option and a traditional or standard listing 
approach option. Under the proposed approach, we also evaluated two 
alternative scenarios: A nonwastewaters option which limits the listing 
to waste solids (K179) and a sensitivity analysis scenario where wastes 
currently going to hazardous fuel blending and cement kilns would be 
diverted to a commercial hazardous waste incinerator.

[[Page 10127]]

    A supplementary analysis of our RCRA 3007 survey data shows that an 
estimated 50 percent of the nonwastewaters and 20 percent of the 
wastewaters generated by survey respondents did not contain any of the 
constituents of concern. We used these ratios for our analysis of the 
percentage of wastes that would be listed hazardous waste for the 
concentration-based listing approach (the Agency's proposed option), 
e.g., 50 percent of nonwastewaters and 80 percent of wastewaters would 
become hazardous. Our findings under this approach may overestimate 
compliance costs for waste streams containing listed constituents that 
fall below risk-based concentration levels. We assumed that one-hundred 
percent of all targeted wastes were designated as hazardous under the 
aggregate findings for the traditional or standard listing option.
    The estimated impacts associated with the Agency proposed approach, 
alternative scenarios to the proposed approach, and alternative waste 
listing options are presented in the table below. As indicated, we 
estimate that the nonwastewaters scenario under the proposed approach 
is the least costly, at $6.7 million per year for all impacted 
facilities. Our proposed approach has estimated annual costs of $7.3 
million per year, or $600,000 more than the nonwastewaters scenario. If 
we assume that the wastes currently going to hazardous waste fuel 
blending will be diverted to commercial incinerators (the sensitivity 
analysis) we estimate aggregate cost of $18.1 million per year. The 
traditional or standard listing option is estimated to cost $10.9 
million per year. The no-list or status quo option would result in no 
incremental costs to industry. The impact estimates in Table IX.A-1 are 
fully weighted to account for model facility representation. These 
figures (except the Traditional Option) also assume baseline conditions 
where 50 percent of the nonwastewaters and 20 percent of the 
wastewaters are nonhazardous, as managed under the proposed waste 
listing option.

   Table IX.A-1.--Summary of Estimated Impacts From All Waste Listing
                          Options and Scenarios
------------------------------------------------------------------------
                                              Average
                                             weighted        Aggregate
                                            incremental       annual
         Listing option/scenario          annual cost as    compliance
                                           a percent of    cost impacts
                                           gross annual    (million 1999
                                               sales         dollars)
------------------------------------------------------------------------
Proposed Concentration-Based Listing--              0.07         \1\ 7.3
 Agency Preferred Approach (APA)........
Agency Preferred Approach-Sensitivity               0.19            18.1
 Analysis Scenario (APA 1) (Waste going
 to all fuel blending is diverted to
 commercial incineration)...............
Agency Preferred Approach--List Solids              0.06             6.7
 (K179) Only (APA 2)....................
Traditional or Standard Listing Option..            0.10        \1\ 10.9
No List--Status Quo Option..............             0.0            0.0
------------------------------------------------------------------------
\1\ While cost estimates under the APA represent only 50 percent of
  total nonhazardous solids and 80 percent of the nonhazardous liquids,
  aggregate impacts do not directly reflect this difference. The
  unweighted and unscaled waste management costs under the APA are
  estimated at $1.8 million. The unweighted and unscaled waste
  management costs under the Traditional Listing Option are estimated at
  $3.5 million. Applying the weighting and scaling factors, plus
  transportation, administrative, and analytical (APA only) costs
  results in aggregate annual nationwide compliance costs of $7.3
  million for the APA and $10.9 million for the Traditional Option.

    In addition to the costs presented above, incremental costs 
expected to be incurred by the landfill industry are estimated to be 
approximately $300,000 to $400,000 annually for the proposed option 
(The Clean Water Act Exemption with Two-Year Impoundment Replacement 
Deferral regulatory option). However, the costs may be considerably 
lower as the result of possible savings gained through contract 
negotiations for repeat customers who provide consistent revenue 
streams to shipping companies through their regularly scheduled 
shipments of leachate. It also is likely that not all landfills that 
received paint wastes prior to this proposed action have leachate 
collection systems, which would lower the cost estimates. Finally, 
there is likely some overlap from paint facilities disposing in the 
same landfill, which will result in lower costs to the landfill 
industry.
    Table IX.A-2 presents impacts for different size classes of the 
model facilities, based on employment. The impacts presented in this 
table represent the impacts on the facilities associated with the 
proposed waste listing approach (APA). However, these figures assume 
that 100 percent of all of the waste generated is hazardous, as a high-
end scenario. In general, cost impacts as a percent of sales are 
modest, averaging just over 0.1 percent of gross annual revenues. For 
three of the 151 ``model facilities,'' impacts exceed 1.0 percent of 
gross sales; these three model facilities are estimated to represent 
six total facilities. (The reader should note these findings are at the 
facility, not the company or parent firm level.)

      Table IX.A-2.--Estimated Cost Impacts on Model Facilities From the Agency Preferred Listing Approach
----------------------------------------------------------------------------------------------------------------
                                                                                    Unweighted
                                                                  Estimated 1999    incremental       Average
                                                                  average annual  cost range per    unweighted
  Model facility size range  (number of employees per facility)     gross sales      facility*      incremental
                                                                     (thousand      (percent of      cost as a
                                                                     dollars)      gross annual     percent of
                                                                                      sales)          sales*
----------------------------------------------------------------------------------------------------------------
1-19............................................................           3,661       0.04-3.77            0.11
20-49...........................................................          11,484       0.01-0.50            0.05
50-149..........................................................          31,839       0.01-4.06            0.11

[[Page 10128]]

 
150 & Above.....................................................          85,791       0.01-1.33           0.17
----------------------------------------------------------------------------------------------------------------
* Estimates derived assuming 100 percent of all waste streams generated by the model facilities are hazardous.

    The proposed rule is intended to reduce the potential for 
environmental releases of hazardous wastes. Depending on current and 
future exposure patterns, the proposed rule could yield benefits in 
terms of reductions in health risks due to stricter controls on the 
management of this waste. The Agency has not monetized or 
quantitatively estimated the human health or environmental benefits, 
but anticipates that such benefits would be less than $100 million. 
Furthermore, additional data are necessary to determine whether there 
will be net benefits (i.e., benefits exceeding costs) from the proposed 
rule.

B. What Consideration Was Given to Small Entities Under the Regulatory 
Flexibility Act (RFA), as Amended by the Small Business Regulatory 
Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq.?

Introduction
    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute, unless the agency certifies that the rule will not have 
a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small organizations, 
and small governmental jurisdictions.
    For purposes of assessing the impacts of rules on small entities, a 
small entity is defined as: (1) A small business that has fewer than 
1000, 750, or 500 employees per firm depending upon the SIC code the 
firm is primarily classified in; (2) a small governmental jurisdiction 
that is a government of a city, county, town, school district or 
special district with a population of less than 50,000; or (3) a small 
organization that is any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, we believe that this action should not have a 
significant economic impact on a substantial number of small entities. 
In determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the proposed rule on small entities' (5 U.S.C. 603 
and 604). Thus, an agency may certify that a rule will not have a 
significant economic impact on a substantial number of small entities 
if the rule relieves regulatory burden, or otherwise has a positive 
economic effect on all of the small entities subject to the rule.
    We have completed a screening analysis (Regulatory Flexibility 
Screening Analysis for the Proposed Concentration-Based Listing of 
Wastewaters and Non-Wastewaters from the Production of Paints and 
Coatings), in support of today's proposed action. Findings from this 
Regulatory Flexibility Screening Analysis (RFSA), as described in the 
previous section above, suggest that today's rule, as proposed, will 
not result in significant economic impacts on a substantial number of 
small business paint manufacturers potentially subject to rule 
requirements.
Findings
    Between 93 percent and 95 percent of all paint and coatings 
manufacturing companies are estimated to be ``small,'' based on the SBA 
definition. Census data from 1997 indicate a total of 95 percent are 
small companies, while our research based on the RCRA 3007 survey data 
on 1998 practices and research on representative companies indicate 
approximately 91 percent of all companies may be small. An average of 
these sources indicates approximately 93 percent, or 460 out of the 
total of 494 different companies operating 615 facilities potentially 
subject to rule requirements may be considered small for purposes of 
this analysis. We have determined that paint manufacturing facilities 
are not owned or operated by small (or large) entities (not-for-
profits, local governments, tribes, etc.), other than businesses.
    We estimate that, under the proposed regulatory option, impacts on 
small companies would average about 0.06 percent of annual gross 
revenues. Three small companies (operating four facilities) out of the 
total of 460 small companies potentially subject to rule requirements 
were found to experience annual compliance cost impacts greater than 
1.0 percent of annual gross revenues. We also examined potential 
economic impacts to small businesses under three alternative regulatory 
options. Impacts to small businesses under these options all averaged 
less than 0.5 percent of annual gross revenues.
    The Agency is required to make an initial determination if any 
regulatory action may have a ``significant economic impact on a 
substantial number of small entities,'' as required by the RFA as 
amended by SBREFA. However, the legislation presents no explicit 
guidelines regarding what constitutes a significant impact or what 
constitutes a significant number of small entities for this particular 
industry. Based on a review of overall impacts we believe that the 
impacts on small entities, as estimated in this report, should not be 
considered ``significant.'' It is also anticipated that the industry 
will pass at least some of these costs on in the form of higher paint 
prices, thereby reducing the actual effect on individual small 
entities.
    The paint and coatings industry is dominated by small entities, at 
least in terms of number of facilities. Accordingly it may be argued 
that there could be a substantial number of small entities impacted. 
However it appears that the impacts on these small entities are modest, 
especially compared with large facilities, as illustrated in Table 
IX.B-3 below.

[[Page 10129]]



     Table IX.B-3.--Summary of Estimated Impacts From All Waste Listing Options Small and Large Facilities *
----------------------------------------------------------------------------------------------------------------
                                                                                      Average        Aggregate
                                                                     Number of      incremental     annual cost
            Listing option                    Entity size           unweighted       cost as a        impacts
                                                                       model        percent of    (million 1999$/
                                                                   facilities **       sales           year)
----------------------------------------------------------------------------------------------------------------
No List Option.......................  Large....................              14            0.00             0.0
                                       Small....................             137            0.00             0.0
Traditional or Standard Listing......  Large....................              14            0.16             3.6
                                       Small....................             137            0.08             7.4
Agency Preferred Approach (APA)......  Large....................              14            0.09             2.1
                                       Small....................             137            0.06             5.2
Agency Preferred Approach              Large....................              14            0.42             9.4
 (Sensitivity Analysis Scenario APA1). Small....................             137            0.11             8.7
Agency Preferred Approach (Scenario    Large....................              14            0.09             2.0
 to List Solids Only APA2).            Small....................             137            0.05            4.7
----------------------------------------------------------------------------------------------------------------
* Large entities include all facilities which could be identified as being owned by companies with more than 500
  employees. The small entity category contains all other facilities.
** The estimated total number of small entities affected by the rule industry-wide is 572; there are an
  estimated 43 large entities affected.

Conclusions
    After considering the above findings, I certify that this proposed 
action should not result in significant economic impacts on a 
substantial number of small paints and coatings manufacturing 
businesses subject to rule requirements. Furthermore, this rule, as 
proposed does not require further analysis and evaluation under a full 
Regulatory Flexibility Analysis. The RFSA document: Regulatory 
Flexibility Screening Analysis for the Proposed Concentration-Based 
Listing of Wastewaters and Non-Wastewaters from the Production of 
Paints and Coatings, is available for review in the docket established 
for today's action. Concerned stakeholders are encouraged to conduct a 
comprehensive review and evaluation of this document and provide non-
restricted data and comments designed to improve this analysis.

C. What Consideration Was Given to Children's Health Under Executive 
Order 13045?

    ``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is 
determined to be ``economically significant'' 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. 
Furthermore, the Agency does not have reason to believe that 
environmental health or safety risks addressed by 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. 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 all citizens, 
including 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 is intended to reduce potential releases of 
hazardous wastes to the environment. Depending on current and future 
exposure patterns, any risks associated with such releases would also 
decrease. 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 
management practices proposed in this rule are intended to reduce the 
potential for unacceptable 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 paint 
manufacturing wastes addressed in this Proposal.

D. What Consideration Was Given to Environmental Justice Under 
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 has assumed a leadership 
role in environmental justice initiatives to enhance environmental 
quality for all citizens of the United States. The Agency's goals are 
to ensure that no segment of the population, regardless of race, color, 
national origin, income, or net worth bears disproportionately high and 
adverse human health and environmental impacts as a result of EPA's 
policies, programs, and activities. 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

[[Page 10130]]

to waste programs and to develop an overall strategy to identify and 
address these issues (OSWER Directive No. 9200.3-17).
    We have assessed whether today's proposed rule may help mitigate, 
or result in disproportionate effects on minority or low-income 
populations. Due to budgeting and scheduling constraints, we have not 
compiled data correlating individual paint facility locations with 
minority/low income populations. However, our risk assessment did not 
identify risks from management of paint manufacturing waste liquids in 
tanks onsite at the paint manufacturing facility. Therefore, we believe 
that any populations in proximity to paint manufacturing facilities are 
not adversely affected by waste management practices within the purview 
of this proposal. This proposed listing is intended to reduce 
unacceptable risks associated with managing paint manufacturing wastes 
in nonhazardous waste landfills and in surface impoundments. This would 
reduce risks for any populations living in proximity to such facilities 
who rely on groundwater for drinking water supplies.
    The affected paint manufacturing facilities, however, are 
distributed throughout the country and many are known to be located 
within highly urbanized areas. Furthermore, the waste management units 
in question are estimated, on average, to be located within 50 miles of 
the manufacturing facilities. Because the proposed rule would provide 
incentives for reducing the use of hazardous constituents and is 
intended to reduce environmental risks associated with the management 
of the targeted waste streams, the Agency believes that this rule could 
help mitigate health risks to minority and low income communities 
living near impacted facilities. Furthermore, we have no data 
indicating that today's proposal would result in disproportionately 
negative impacts on minority or low income communities.

E. What Consideration Was Given to Unfunded Mandates?

Unfunded Mandates Reform Act
    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal Agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
must prepare a written analysis, including a cost-benefit analysis, for 
proposed and final rules with ``Federal mandates'' that may result in 
expenditures to State, local, and tribal governments, in the aggregate, 
or to the private sector, of $100 million or more in any one year. 
Before promulgating an EPA rule for which a written statement is 
needed, section 205 of the UMRA requires EPA to identify and consider a 
reasonable number of regulatory alternatives and adopt the least 
costly, most cost-effective, or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Before EPA 
establishes any regulatory requirements that may significantly or 
uniquely affect small governments, including tribal governments, it 
must have developed under section 203 of the UMRA a small government 
agency plan. The plan must provide for notifying potentially affected 
small governments, enabling officials to have meaningful and timely 
input in the development of regulatory proposals, and informing, 
educating, and advising small governments on compliance with the 
regulatory requirements.
    This rule does not include a Federal mandate that may result in 
expenditures of $100 million or more to State, local, or tribal 
governments in the aggregate, because this rule imposes no enforceable 
duty on any State, local, or tribal governments. EPA also has 
determined that this rule contains no regulatory requirements that 
might significantly or uniquely affect small governments. In addition, 
as discussed above, the private sector is not expected to incur costs 
exceeding $100 million. Therefore, today's proposed rule is not subject 
to the requirements of sections 202, 203, and 205 of UMRA.

F. What Consideration Was Given to Federalism Under Executive Order 
13132?

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' are defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    Under Section 6 of Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law, unless 
the Agency consults with State and local officials early in the process 
of developing the proposed regulation.
    Section 4 of the Executive Order contains additional requirements 
for rules that preempt State or local law, even if those rules do not 
have federalism implications (i.e., the rules will not have substantial 
direct effects on the States, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government). Those 
requirements include providing all affected State and local officials 
notice, and an opportunity for appropriate participation in the 
development of the regulation. If the preemption is not based on 
expressed or implied statutory authority, EPA also must consult, to the 
extent practicable, with appropriate State and local officials 
regarding the conflict between State law and federally protected 
interests within the agency's area of regulatory responsibility.
    This proposed rule does not have federalism implications. It will 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. This rule, as proposed, is 
projected to result in economic impacts to privately owned paint 
manufacturing facilities. Marginal administrative burden impacts may 
occur to selected States an/or EPA Regional Offices if these entities 
experience increased administrative needs, enforcement requirements, or 
voluntary information requests. However, this rule, as proposed, will 
not have substantial direct effects on the States, intergovernmental 
relationships, or the distribution of power and responsibilities. Thus, 
Executive Order 13132 does not apply to this rule.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, we specifically solicit comment on this proposed rule from 
State and local officials.

[[Page 10131]]

G. What Consideration Was Given to Tribal Governments Under Executive 
Order 13175: Consultation and Coordination With Indian Tribal 
Governments?

    Executive Order 13175, ``Consultation and Coordination With Indian 
Tribal Governments,'' was signed by the President on November 6, 2000. 
As of January 6, 2001, Executive Order 13175 (65 FR 67249) took effect 
and revoked Executive Order 13084. Please note that we addressed tribal 
considerations under Executive Order 13084 because we developed this 
proposed rule during the period when this Order was in effect. We will 
analyze and fully comply with the requirements of Executive Order 13175 
before promulgating the final rule.
    This Order applies to regulations not specifically required by 
statute that significantly or uniquely affect the communities of Indian 
tribal governments, and that impose substantial direct compliance costs 
on Indian tribal governments. If any rule is projected to result in 
significant direct costs to Indian tribal communities, EPA cannot issue 
this rule unless the Federal government provides funds necessary to pay 
the direct costs incurred by the Indian tribal government or the tribe, 
or consults with the appropriate tribal government officials early in 
the process of developing the proposed regulation.
    If EPA complies by consulting, we must provide the Office of 
Management and Budget (OMB) with all required information. We must also 
summarize, in a separately identified section of the preamble to the 
proposed or final 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 13175 requires 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.''
    Today's rule implements mandates specifically and explicitly set 
forth by the U.S. Congress. This action is proposed under the authority 
of sections 3001(b)(1), and 3001(e)(2) of the Hazardous and Solid Waste 
Amendments (HSWA) of 1984. These sections direct EPA to make a 
hazardous waste listing determination for ``paint production wastes.'' 
Accordingly, the requirements of Executive Order 13175 do not apply to 
this rule.
    Furthermore, today's proposal would not significantly or uniquely 
affect the communities of Indian tribal governments, nor would it 
impose substantial direct compliance costs on them. Tribal communities 
are not known to own or operate any paint/coatings 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.

X. Paperwork Reduction Act (PRA), 5 U.S.C. 3501-3520

A. How is the Paperwork Reduction Act Considered in Today's Proposed 
Rule?

    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An 
Information Collection Request (ICR) document has been prepared (ICR 
No. 2006.01) and a copy may be obtained from Sandy Farmer by mail at 
Collection Strategies Division; U.S. Environmental Protection Agency 
(2822); 1200 Pennsylvania Ave., NW, Washington, DC 20460, by email at 
[email protected], or by calling (202) 260-2740. A copy may 
also be downloaded off the internet at http://www.epa.gov/icr.
    This rule is proposed under the authority of sections 3001(e)(2) 
and 3001(b)(1) of the Hazardous and Solid Waste Amendments (HSWA) of 
1984. The effect of listing the wastes described earlier will be to 
subject industry to management and treatment standards under the 
Resource Conservation and Recovery Act (RCRA).
    This proposed concentration-based listing is designed to be self-
implementing. Under this proposed approach, generators of the K179 and/
or K180 wastes must determine if their waste is nonhazardous. This 
determination will ensure that concentration levels of the constituents 
of concern in the targeted wastes are below the regulatory levels. As a 
result, this rule, as proposed, represents only an incremental increase 
in burden for generators and subsequent handlers of the newly listed 
wastes in complying with existing RCRA information collection 
requirements.
    The total annual respondent burden and cost for all paperwork 
associated with the proposed rule is represented by the new paperwork 
requirements for listing paint wastes, plus the incremental increase in 
paperwork burden under five existing Information Collection Requests 
(ICRs). We estimate the total annual respondent burden for all 
information collection activities to be approximately 8,361 hours, at 
an annual aggregate cost of approximately $639,747. Of the total 
respondent burden, only 1,457 hours per year, or 17.4 percent results 
from new paperwork requirements. The remaining 6,904 hour increase is 
derived from five existing paperwork requirements. These include: The 
Biennial Report, Generator Standards, Land Disposal restrictions, 
Manifest, and Notification.
    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 purpose of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previous applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search new data sources; complete and review the collection of 
information; and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control number 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, Collection Strategies Division; U.S. Environmental Protection 
Agency (2822); 1200 Pennsylvania Ave., NW, Washington, DC 20460; and to 
the Office of Information and Regulatory Affairs, Office of Management 
and Budget, 725 17th St., 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 February 13, 2001, a comment to OMB is best assured 
of having its full effect if OMB receives it by March 15, 2001. The 
proposed rule will respond to any OMB or public comments on the 
information

[[Page 10132]]

collection requirements contained in this proposal.

XI. National Technology Transfer and Advancement Act of 1995 (Pub 
L. 104-113, *12(d) (15 U.S.C. 272 Note))

A. 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 may involve voluntary consensus standards 
related to sampling and analysis procedures for waste characterization. 
Our implementation approach for waste characterization allows standard 
SW-846 methods, or appropriate alternatives. NTTAA does not apply to 
today's proposal because we are not requiring paint facilities to 
employ nonvoluntary consensus standards which they may deem as 
``appropriate alternatives.''

List of Subjects

40 CFR Part 148

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

40 CFR Part 261

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

40 CFR Part 268

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

40 CFR Part 271

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

40 CFR Part 302

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

    Dated: January 25, 2001.
W. Michael McCabe,
Acting 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: Secs. 3004, Resource Conservation and Recovery Act, 
42 U.S.C. 6901, et seq.

    2. Section 148.18 is amended by adding paragraphs (n) and (o) to 
read as follows:


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

* * * * *
    (n) Effective [insert date six months after date of final rule], 
the wastes specified in 40 CFR 261.32 as EPA Hazardous Waste Numbers 
K179 and K180 are prohibited from underground injection.
    (o) The requirements of paragraphs (a) through (n) 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 title; or
    (2) If an exemption from a prohibition has been granted in response 
to a petition under subpart C of this part; or
    (3) During the period of extension of the applicable effective 
date, if an extension has been granted under Sec. 148.4 of this part.

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 261.3 is amended by adding paragraph (c)(2)(ii)(F) to 
read as follows:


Sec. 261.3  Definition of hazardous waste.

* * * * *
    (c) * * *
    (2) * * *
    (ii) * * *
    (F) Treatment residues from paint manufacturing waste solids that 
met the K179 listing, when they are below the constituent concentration 
levels specified in the listing at Sec. 261.32(b)(6)(iii) and a new 
hazardous waste determination is made following the procedures 
specified in Sec. 261.32(b). These exempted treatment residues must 
still meet all requirements specified in part 268 of this chapter prior 
to land disposal.
    5. Section 261.4 is amended by revising paragraph (b)(15) to read 
as follows.


Sec. 261.4  Exclusions.

* * * * *
    (b) * * *
    (15) Leachate or gas condensate collected from landfills where 
certain solid wastes have been disposed, provided that:
    (i) The solid wastes disposed would meet one or more of the listing 
descriptions for Hazardous Waste Codes K169, K170, K171, K172, K174, 
K175, K179 and K180 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 [insert date 24 months from date of promulgation], 
leachate or gas condensate derived from K179 and/or K180 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

[[Page 10133]]

be managed in compliance with the conditions of this paragraph after 
the emergency ends.
* * * * *
    6. 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 ``Paint Manufacturing'' and its entries 
at the end of the table and by adding paragraphs (b) and (c) to read as 
follows:


Sec. 261.32  Hazardous wastes from specific sources.

    (a) * * *

------------------------------------------------------------------------
     Industry and EPA
   hazardous waste No.          Hazardous waste           Hazard code
------------------------------------------------------------------------
 
      *                   *                   *                   *
                   *                   *                   *
Paint Manufacturing
K179.....................  K179--Paint manufactuirng  (T)
                            waste solids generated
                            by paint (T)
                            manufacturing facilities
                            that, at the point of
                            generation, contain any
                            of the constituents
                            identified in paragraph
                            (b)(6)(iii) of this
                            section at a
                            concentration equal to
                            or greater than the
                            hazardous level set for
                            that constitutent in
                            paragraph (b)(6)(iiiI)
                            of this section. Paint
                            manufacturing waste
                            solids are: (1) waste
                            solids generated from
                            tank and equipment
                            cleaning operations that
                            use solvents, water and
                            or caustic; (2) emission
                            control dusts or
                            sludges; (3) wastewater
                            treatment sludges; and
                            (4) off-specification
                            product. Waste solids
                            derived from the
                            management of K180 by
                            paint manufacturers
                            would also be subject to
                            this listing. Waste
                            liquids derived from the
                            management of K179 by
                            paint manufacturers are
                            not covered by this
                            listing, but such
                            liquids are subject to
                            the K180 listing. For
                            the purposes of this
                            listing, paint
                            manufacturers are
                            defined as specified in
                            paragraph (b) of this
                            section.
K180.....................  Paint manufacturing waste  (T)
                            liquids generated by
                            paint manufacturing
                            facilities that, at the
                            point of generation,
                            contain any of the
                            constituents identified
                            in paragraph (b)(6)(iii)
                            of this section at a
                            concentration equal to
                            or greater than the
                            hazardous level set for
                            that constituent in
                            paragraph (b)(6)(iii) of
                            this section unless the
                            wastes are stored or
                            treated exclusively in
                            tanks or containers
                            prior to discharge to a
                            POTW or under a NPDES
                            permit. Paint
                            manufacturing liquids
                            are generated from tank
                            and equipment cleaning
                            operations that use
                            solvents, water, and/or
                            caustic. Waste liquids
                            derived from the
                            management of K179 by
                            paint manufacturers
                            would also be subject to
                            this listing. Waste
                            solids derived from the
                            management of K180 by
                            paint manufacturers are
                            not covered by this
                            listing, but such solids
                            are subject to the K179
                            listing. For the
                            purposes of this
                            listing, paint
                            manufacturers are
                            defined as specified in
                            paragraph (b) of this
                            section.
 
      *                   *                   *                   *
                   *                   *                   *
------------------------------------------------------------------------

* * * * *
    (b) Procedures for paint manufacturers to determine potential K179 
and K180 wastes to be nonhazardous. For purposes of Sec. 261.32 the 
term ``paint manufacturing facility'' means a facility that produces 
paints (including undercoats, primers, finishes, sealers, enamels, 
refinish paints, and tinting bases), stains, varnishes (including 
lacquers), product finishes for original equipment manufacturing and 
industrial application, and, coatings (including special purpose 
coatings and powder coatings), but the term does not include a facility 
that exclusively produces miscellaneous allied products (including 
paint and varnish removers, thinners for lacquers or other solvent-
based paint products, pigment dispersions or putty) or artist paints. 
The term also does not include a facility that exclusively prepares 
paint products (such as adding pigments to a tinting base) for sale to 
end users of the product. If you generate wastes that potentially fall 
within the K179 or K180 listing descriptions, you must use the waste 
analysis and handling procedures described below if you want to 
determine that your wastes are nonhazardous. If you have knowledge 
(e.g., knowledge of constituents in wastes based on existing sampling 
and analysis data and/or information about raw materials used, 
production processes used, and degradation products formed) to 
determine that the potential K179 or K180 wastes do not contain any of 
the constituents of concern identified for these types of wastes (see 
tables under paragraph (b)(6)(iii) of this section), you can use this 
knowledge, in lieu of the annual waste analysis requirements described 
in paragraph (b)(2)(ii) of this section, to make a nonhazardous 
determination.
    (1) Dilution Prohibition. Prior to making a determination, you may 
only mix potential K179 wastes with other potential K179 wastes or 
potential K180 wastes with other potential K180 wastes, that is paint 
manufacturing wastes from tank and equipment cleaning operations that 
use solvents, water, and/or caustic; emission control dusts or sludges; 
wastewater treatment sludges and off specification product. You must 
not dilute potential K179 or K180 wastes with other waste or material 
before making a determination.
    (2) Determine annual waste analysis requirements. If you generate 
paint manufacturing wastes that contain one or more constituents of 
concern, you must at least on an annual basis, use the following 
procedures to determine the waste analysis requirements for your 
wastes:
    (i) You must either use the previous year's (previous 12 months) 
waste generation data, or, if these data are not available, estimate 
the total annual quantities of paint manufacturing waste solids and 
liquids that you will generate over the next 12 months based on current 
knowledge. You must determine total annual quantities separately for 
paint manufacturing waste solids and liquids, including the quantities 
of hazardous wastes (characteristic and otherwise listed) and 
nonhazardous wastes from tank and equipment cleaning operations that 
use solvents, water, and/or caustic; emission control dusts or sludges; 
wastewater treatment sludges and off specification product. Then, you 
must record the total annual waste quantities you expect to generate.
    (ii) You must use the recorded total annual quantities of paint 
manufacturing waste solids and liquids to determine the appropriate 
annual waste analysis requirement for your wastes in accordance with 
the tiered approach described in the applicable table below. If you 
initially estimate that your waste generation would fall under the low 
volume tier, and, at any time within the 12 month period, the actual 
quantities of waste you generate fall

[[Page 10134]]

within the upper volume tier, from that time, you would be subject to 
the upper tier waste analysis requirements. If you have not already 
tested your wastes, you must test your wastes. A new 12 month period to 
make a hazardous waste determination for your waste also starts when 
the actual quantity of your waste exceeds the expected lower volume 
tier limit.

              Tiered Waste Analysis Requirements For Solids
------------------------------------------------------------------------
  Total annual quantity of hazardous and
  nonhazardous paint manufacturing waste        Annual waste analysis
                  solids                             requirement
------------------------------------------------------------------------
40 metric tons and less...................  Test Wastes or Use knowledge
                                             of Wastes
Over 40 metric tons                         Test Wastes
------------------------------------------------------------------------


             Tiered Waste Analysis Requirements For Liquids
------------------------------------------------------------------------
  Total annual quantity of hazardous and
  nonhazardous paint manufacturing waste        Annual waste analysis
                  liquids                          requirement\1\
------------------------------------------------------------------------
100 metric tons and less..................  Test Wastes or Use Knowledge
                                             of Wastes
Over 100 metric tons......................  Test Wastes
------------------------------------------------------------------------
\1\ This requirement does not apply if the liquid wastes are stored or
  treated exclusively in tanks or containers and then sent to a POTW or
  discharged under a NPDES permit.

    (3) Nonhazardous determination for wastes based on testing. If the 
total annual quantity of paint manufacturing wastes your facility 
generates exceeds 40 metric tons for waste solids or 100 metric tons 
for waste liquids, you must test the wastes according to the following 
procedures:
    (i) You must develop a waste sampling and analysis plan (if there 
is no appropriate existing plan) to collect samples that are 
representative of the wastes.
    (ii) At a minimum, the plan must include:
    (A) A discussion on the number of samples representative of the 
wastes that are needed to fully characterize the wastes;
    (B) The sampling method used to obtain samples representative of 
the wastes;
    (C) A detailed description of the test method(s) used; and
    (D) How the design of the sampling plan accounts for potential 
variability of the wastes.
    (iii) You must test the wastes for each constituent of concern that 
is reasonably expected to be present in the wastes (see paragraph 
(b)(3)(iii)(B) of this section).
    (A) The constituents of concern and listing concentration levels 
for the paint manufacturing waste solids and liquids are identified in 
paragraph (b)(6)(iii) of this section.
    (B) From the list of constituents of concern for paint 
manufacturing waste solids or liquids, you must select the constituents 
of concern that are reasonably expected to be present in your wastes 
based on your knowledge of the wastes (e.g., knowledge of the 
constituents in the wastes based on existing sampling and analysis data 
and/or information about raw materials used, and degradation products 
formed).
    (C) You must test for all constituents of concern that are 
reasonably expected to be present in the paint manufacturing wastes, 
regardless of their concentrations in the wastes.
    (iv) You must conduct sampling and analysis in accordance with your 
waste sampling and analysis plan developed under paragraph (b)(3)(i) of 
this section.
    (v) You may use any reliable analytical method to demonstrate that 
the concentrations of constituents of concern in the waste samples are 
not at or above the listing levels (see applicable list under paragraph 
(b)(6)(iii) of this section). It is your responsibility to ensure that 
the sampling and analysis are unbiased, precise, and representative of 
the wastes.
    (vi) You must ensure that the measurements are sufficiently 
sensitive, accurate and precise to demonstrate that the maximum 
concentrations of the constituents of concern in any sample analyzed 
are not at or above the listing levels.
    (vii) In an enforcement action, you, as the generator, bear the 
burden of proof to establish that the concentrations of constituents of 
concern in your wastes are below the listing levels. For wastes 
determined to be nonhazardous, compliance with the requirement that 
concentrations of constituents of concern are below the listing levels 
is based on grab sampling.
    (viii) If all samples you test during any three consecutive years 
are determined to be nonhazardous (see paragraph (b)(6)(ii) of this 
section), then the annual testing requirements for your wastes are 
suspended.
    (ix) After suspension of the annual testing requirements for your 
wastes, if your paint manufacturing, formulation, or waste treatment 
processes are significantly altered (i.e., if it could result in 
significantly higher levels of the constituents of concern for K179 or 
K180), then you must resume annual testing for your wastes. In order to 
again suspend the annual testing requirements for your wastes, the 
requirement under paragraph (b)(3)(viii) of this section has to be met.
    (4) Nonhazardous determination for wastes based on knowledge. If 
the total annual quantity of paint manufacturing wastes your facility 
generates is 40 metric tons or less for waste solids or 100 metric tons 
or less for waste liquids, you can use knowledge of the wastes (e.g., 
knowledge of constituents in wastes based on existing sampling and 
analysis data and/or information about raw materials used, production 
processes used, and degradation products formed) to conclude that 
concentrations for the constituents of concern in the wastes are below 
the listing levels.
    (5) Waste holding and handling. During the interim period, from the 
point of generation to completion of hazardous waste determination, you 
are responsible for storing the wastes properly. If the wastes are 
determined to be hazardous and you are not complying with the Subtitle 
C storage requirements during the interim period, you are subject to an 
enforcement action for improper storage.
    (6) Hazardous or nonhazardous determination for wastes at the point 
of generation. You must make a hazardous or nonhazardous determination 
for your wastes at the point of generation based on the test data and/
or knowledge (see nonhazardous determination for wastes under 
paragraphs (b)(3) and (b)(4) of this section).
    (i) Hazardous determination. If any of the waste being evaluated at 
the point of generation contains any of the constituents in the 
applicable list under paragraph (b)(6)(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 being 
evaluated at the point of generation contains any of the constituents 
in the applicable list under paragraph (b)(6)(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.
    (iii) Hazardous (listing) levels. All concentrations in the waste 
for any constituents identified in this paragraph (b)(6)(iii) that are 
equal to or greater than the following levels:

[[Page 10135]]



    Constituents and Concentration Levels of Concern for K179, Paint
                       Manufacturing Waste Solids
------------------------------------------------------------------------
                                             Chemical      Concentration
               Constituent                 abstracts No.  levels (mg/kg)
------------------------------------------------------------------------
Acrylamide..............................         79-06-1             310
Acrylonitrile...........................        107-13-1              43
Antimony................................       7440-36-0           2,300
Methyl Isobutyl Ketone..................        108-10-1          73,000
Methyl Methacrylate.....................         80-62-6          28,000
------------------------------------------------------------------------


    Constituents and Concentration Levels of Concern for K180, Paint
                       Manufacturing Waste Liquids
------------------------------------------------------------------------
                                             Chemical      Concentration
               Constituent                 abstracts No.  levels (mg/kg)
------------------------------------------------------------------------
Acrylamide..............................         79-06-1              12
Acrylonitrile...........................        107-13-1             9.3
Antimony................................       7440-36-0             390
Methylene chloride......................         75-09-2            4500
Ethylbenzene............................        100-41-4          11,000
Formaldehyde............................         50-00-0          82,000
Methyl Isobutyl Ketone..................        108-10-1             340
Methyl Methacrylate.....................         80-62-6           2,100
N-Butyl Alcohol.........................        100-42-5          41,000
Styrene.................................        100-42-5           4,600
Toluene.................................        108-88-3           1,200
Xylene (mixed isomers)..................       1330-20-7           3,900
------------------------------------------------------------------------

    (7) Hazardous or nonhazardous waste determination for wastes after 
treatment. If wastes that have been determined to be K179 listed 
hazardous waste are treated to below hazardous levels, you, as the 
waste generator or treater, may make a determination that the residue 
of the treatment process is nonhazardous by applying the procedures 
described for wastes at the point of generation, in paragraphs (b)(1) 
through (b)(4) of this section, to the treated waste. However, the 
residue remains subject to the LDR treatment standards for K179 as 
appropriate.
    (c) Record keeping requirements for generators who have determined 
their wastes to be nonhazardous. You must keep records documenting the 
total annual quantity of paint manufacturing waste solids and liquids 
you generate from tank and equipment cleaning operations that use 
solvents, water, and/or caustic; emission control dusts or sludges; 
wastewater treatment sludges and off specification product. If your 
annual generation of paint manufacturing wastes exceeds 40 metric tons 
for waste solids or 100 metric tons for waste liquids, you must also 
keep the following records on-site for the most recent three years of 
testing (from the effective date of the final rule):
    (1) The documentation supporting a determination that wastes are 
nonhazardous based on knowledge that they do not contain any of the 
constituents of concern.
    (2) If the wastes are determined to be nonhazardous based on 
testing, then the following records must be kept:
    (i) The sampling and analysis plan used for collecting and 
analyzing samples representative of the wastes, including detailed 
sampling methods used to account for spatial and temporal variability 
of the wastes, and sample preparative, cleanup (if necessary) and 
determinative methods.
    (ii) The sampling and analyses data (including QA/QC data) and 
knowledge (if used) that support a nonhazardous determination for the 
wastes.
    (4) If storing or treating liquid paint wastes on-site in tanks or 
containers prior to off-site disposal, the documentation showing that 
the liquid paint manufacturing wastes will be stored or treated 
exclusively in tanks or containers off-site before discharge by a 
facility to a POTW or discharge under an NPDES permit.
    7. Appendix VII to Part 261 is amended by adding the following 
waste streams in alphanumeric order (by the first column) to read as 
follows.

Appendix VII to Part 261--Basis for Listing Hazardous Waste

------------------------------------------------------------------------
EPA hazardous waste No.      Hazardous Constituents for which listed
------------------------------------------------------------------------
 
*                  *                  *                  *
                  *                  *                  *
K179...................  Acrylamide, Acrylonitrile, Antimony, Methyl
                          Isobutyl Ketone, Methyl methacrylate
K180...................  Acrylamide, Acrylonitrile, Antimony, Methylene
                          Chloride, Ethylbenzene, Formaldehyde, Methyl
                          Isobutyl Ketone, Methyl Methacrylate, N-Butyl
                          Alcohol, Styrene, Toluene, Xylene (mixed
                          isomers)
 
*                  *                  *                  *
                  *                  *                  *
------------------------------------------------------------------------

* * * * *

[[Page 10136]]

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

Appendix VIII to Part 261--Hazardous Constituents

----------------------------------------------------------------------------------------------------------------
                                                                                         Chemical
                  Common name                          Chemical abstracts name          abstracts     Hazardous
                                                                                           No.        waste No.
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
n-Butyl alcohol...............................  1-Butanol............................      71-36-3         U031
 
*                  *                  *                  *                  *                  *
                                                        *
Ethyl benzene.................................  Same.................................     100-41-4  ............
 
*                  *                  *                  *                  *                  *
                                                        *
Methyl isobutyl ketone........................  4-Methyl-2-pentanone.................     108-10-1         U161
 
*                  *                  *                  *                  *                  *
                                                        *
Styrene.......................................  Ethenylbenzene.......................     100-42-5  ............
 
*                  *                  *                  *                  *                  *
                                                        *
meta-Xylene...................................  1,3-Dimethylbenzene..................     108-38-3  ............
ortho-Xylene..................................  1,2-Dimethylbenzene..................      95-47-6  ............
para-Xylene...................................  1,4-Dimethylbenzene..................     106-42-3  ............
Xylenes--mixed isomers (sum of o-, m-, and p-   Dimethylbenzene......................    1330-20-7         U239
 xylene concentrations).
 
*                  *                  *                  *                  *                  *
                                                        *
----------------------------------------------------------------------------------------------------------------

* * * * *

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.

Subpart C--Prohibitions on Land Disposal

    10. Section 268.20 is added and Secs. 268.21 through 268.29 are 
added and reserved to subpart C to read as follows:


Sec. 268.20  Waste specific prohibitions--paint production wastes.

    (a) Effective [Insert date six months from date of publication of 
final rule], the wastes specified in 40 CFR part 261 as EPA Hazardous 
Wastes Numbers K179, and K180, soil and debris contaminated with these 
wastes, radioactive wastes mixed with these wastes, and soil and debris 
contaminated with radioactive wastes mixed with these wastes are 
prohibited from land disposal.
    (b) The requirements of paragraph (a) of this section do not apply 
if:
    (1) The wastes meet the applicable treatment standards specified in 
Subpart D of this part;
    (2) Persons have been granted an exemption from a prohibition 
pursuant to a petition under Sec. 268.6, with respect to those wastes 
and units covered by the petition;
    (3) The wastes meet the applicable treatment standards established 
pursuant to a petition granted under Sec. 268.44;
    (4) Hazardous debris has met the treatment standards in Sec. 268.40 
or the alternative treatment standards in Sec. 268.45; or
    (5) Persons have been granted an extension to the effective date of 
a prohibition pursuant to Sec. 268.5, with respect to these wastes 
covered by the extension.
    (c) To determine whether a hazardous waste identified in this 
section exceeds the applicable treatment standards specified in 
Sec. 268.40, the initial generator must test a sample of the waste 
extract or the entire waste, depending on whether the treatment 
standards are expressed as concentrations in the waste extract or the 
waste, or the generator may use knowledge of the waste. If the waste 
contains regulated constituents in excess of the applicable subpart D 
levels, the waste is prohibited from land disposal, and all 
requirements of this part 268 are applicable, except as otherwise 
specified.
    11. In Sec. 268.40, the Table of Treatment Standards is amended by 
adding entries to F039 in alphabetical order and by adding in 
alphanumeric order new entries for K179 and K180 to read as follows:


Sec. 268.40  Applicability of treatment standards.

[[Page 10137]]



                                                        Treatment Standards for Hazardous Wastes
                                                             [Note: NA means not applicable]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Regulated hazardous constituent                   Wastewaters             Nonwastewaters
                                                   -----------------------------------------------------------------------------------------------------
                 Waste description and treatment/                                                                                   Concentration in mg/
  Waste code        regulatory subcategory \1\                                                        Concentration in mg/L\3\, or   kg \5\ unless noted
                                                                Common name              CAS \2\ No.       Technology Code \4\      as ``mg/L TCLP'', or
                                                                                                                                     Technology Code \4\
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
F039           Leachate (liquids that have           *  *  *  *  *  *  *
                percolated through land disposed    Acrylamide                              79-06-1                            19                    23
                wastes) resulting from the           *  *  *  *  *  *  *
                disposal of more than one           Styrene                                100-42-5                         0.028                    28
                restricted waste classified as       *  *  *  *  *  *  *
                hazardous under Subpart D of this
                part. (Leachate resulting from the
                disposal of one or more of the
                following EPA Hazardous Wastes and
                no other Hazardous Waste retains
                its EPA Hazardous Waste Number(s):
                F020, F021, F022, F026, F027, and/
                or F028.)
 
                   *                  *                  *                  *                  *                  *                  *
K179           Paint manufacturing waste solids     Acrylamide                              79-06-1                            19                    23
                generated by paint manufacturing    Acrylonitrile                          107-13-1                          0.24                    84
                facilities that, at the point of    Methyl isobutyl ketone                 108-10-1                          0.14                    33
                generation, contain any of the      Methyl methacrylate                     80-62-6                          0.14                   160
                constituents identified in          Antimony                              7440-36-0                           1.9         1.15 mg/L 0 TCLP
                paragraph Sec.  261.32 (b)(6)(iii)
                at a concentration equal to or
                greater than the hazardous level
                set for that constituent in
                paragraph Sec.  261.32(b)(6)(iii).
                Paint manufacturing waste solids
                are: (1) waste solids generated
                from tank and equipment cleaning
                operations that use solvents,
                water and or caustic; (2) emission
                control dusts or sludges; (3)
                wastewater treatment sludges; and
                (4) off-specification product.
                Waste solids derived from the
                management of K180 by paint
                manufacturers would also be
                subject to this listing. Waste
                liquids derived from the
                management of K179 by paint
                manufacturers are not covered by
                this listing, but such liquids are
                subject to the K180 listing. For
                the purposes of this listing,
                paint manufacturers are defined as
                specified in paragraph Sec.
                261.32(b)
K180           Paint manufacturing waste liquids    Acrylamide                              79-06-1                            19                    23
                generated by paint manufacturing    Acrylonitrile                          107-13-1                          0.24                    84
                facilities that, at the point of    n-Butyl alcohol                         71-36-3                           536                   2.6
                generation, contain any of the      Ethyl benzene                          100-41-4                         0.057                    10
                constituents identified in          Formaldehyde \13\                       50-00-0                    (WETOX or CHOXD) fb CARBN;      CMBST
                paragraph Sec.  261.32(b)(6)(iii)                                                                             or CMBST
                at a concentration equal to or
                greater than the hazardous level
                set for that constituent in         Methylene chloride                      75-09-2                         0.089                    30
                paragraph Sec.  261.32 (b)(6)(iii)  Methyl isobutyl ketone                 108-10-1                          0.14                    33
                unless the wastes are stored or     Methyl methacrylate                     80-62-6                          0.14                   160
                treated exclusively in tanks or     Styrene                                100-42-5                         0.028                    28
                containers prior to discharge to a  Toluene                                108-88-3                         0.080                    10
                POTW or under a NPDES permit.       Xylenes--mixed isomers (sum of o-,    1330-20-7                          0.32                    30
                Paint manufacturing liquids are      m-, and p-xylene concentrations)
                generated from tank and equipment   Antimony
                cleaning operations that use                                              7440-36-0                           1.9         1.15 mg/L 0 TCLP
                solvents, water, and/or caustic.
                Waste liquids derived from the
                management of K179 by paint
                manufacturers would also be
                subject to this listing. Waste
                solids derived from the management
                of K180 by paint manufacturers are
                not covered by this listing, but
                such solids are subject to the
                K179 listing. For the purposes of
                this listing, paint manufacturers
                are defined as specified in
                paragraph Sec.  261.32(b)
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * *      * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
*  *  *  *  *
Footnotes to Treatment Standard Table 268.40.
\1\ The waste descriptions provided in this table do not replace waste descriptions in 40 CFR Part 261. Descriptions of Treatment/Regulatory
  Subcategories are provided, as needed, to distinguish between applicability of different standards.
\2\ CAS means Chemical Abstract Services. When the waste code and/or regulated constituents are described as a combination of a chemical with its salts
  and/or esters, the CAS number is given for the parent compound only.
\3\ Concentration standards for wastewaters are expressed in mg/L and are based on analysis of composite samples.
\4\ All treatment standards expressed as a Technology Code or combination of Technology Codes are explained in detail in 40 CFR 268.42 Table 1--
  Technology Codes and Descriptions of Technology-Based Standards.
\5\ Except for Metals (EP or TCLP) and Cyanides (Total and Amenable) the nonwastewater treatment standards expressed as a concentration were
  established, in part, based upon incineration in units operated in accordance with the technical requirements technical requirements of 40 CFR part
  264, subpart O or 40 CFR part 265, subpart O, or based upon combustion in fuel substitution units operating in accordance with applicable technical
  requirements. A facility may comply with these treatment standards according to provisions in 40 CFR 268.40(d). All concentration standards for
  nonwastewaters are based on analysis of grab samples.
*  *  *  *  *
\13\ Wastes that do not exceed the Sec.  261.32 listing criteria for this constituent are not subject to the treatment technology requirements, but are
  subject to all other numerical standards.
*  *  *  *  *


[[Page 10138]]

    12. In Sec. 268.48 The Table--Universal Treatment Standards is 
amended by adding in alphabetical sequence the following entries under 
the headings ``organic constituents'': (The footnotes are republished 
without change.)


Sec. 268.48  Universal treatment standards.

    (a) * * *

                                          Universal Treatment Standards
                                         [Note: NA means not applicable]
----------------------------------------------------------------------------------------------------------------
                                                                                 Wastewater       Nonwastewater
                                                                                  standard          standard
                                                                             -----------------------------------
               Regulated constituent common name                 CAS \1\ No.                    Concentration in
                                                                              Concentration in  mg/Kg \3\ unless
                                                                                  mg/L \2\       noted in ``mg/L
                                                                                                     TCLP''
----------------------------------------------------------------------------------------------------------------
Organic Constituents:
 
*                  *                  *                  *                  *                  *
                                               *
Styrene........................................................     100-42-5             0.028                28
 
*                  *                  *                  *                  *                  *
                                               *
----------------------------------------------------------------------------------------------------------------
*                  *                  *                  *                  *                  *
   *
\1\ CAS means Chemical Abstract Services. When the waste code and/or regulated constituents are described as a
  combination of a chemical with its salts and/or esters, the CAS number is given for the parent compound only.
\2\ Concentration standards for wastewaters are expressed in mg/L and are based on analysis of composite
  samples.
\3\ Except for Metals (EP or TCLP) and Cyanides (Total and Amenable) the nonwastewater treatment standards
  expressed as a concentration were established, in part, based upon incineration in units operated in
  accordance with the technical requirements of 40 CFR Part 264, Subpart O, or Part 265, Subpart O, or based
  upon combustion in fuel substitution units operating in accordance with applicable technical requirements. A
  facility may comply with these treatment standards according to provisions in 40 CFR 268.40(d). All
  concentration standards for nonwastewaters are based on analysis of grab samples.
*                  *                  *                  *                  *                  *
   *

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

    13. 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

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


Sec. 271.1  Purpose and scope.

* * * * *
    (j) * * *

               Table 1.--Regulations Implementing the Hazardous and Solid Waste Amendments of 1984
----------------------------------------------------------------------------------------------------------------
                                                                    Federal Register
          Promulgation date              Title of regulation           reference              Effective date
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
[insert date of signature of final     Paint Manufacturing      [insert Federal          [insert effective date
 rule].                                 Listing.                 Register page numbers    of final rule]
                                                                 for final rule].
 
*                  *                  *                  *                  *                  *
                                                        *
----------------------------------------------------------------------------------------------------------------


                  Table 2.--Self-Implementing Provisions of the Solid Waste Amendments of 1984
----------------------------------------------------------------------------------------------------------------
                                          Self-implementing                                  Federal Register
            Effective date                    provision              RCRA citation              reference
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
[Insert effective date of final rule]  Prohibition on land      3004(g)(4)(C) and        [Insert date of
                                        disposal of K179 and     3004(m)..                publication of final
                                        K180 wastes.                                      rule], [Insert FR page
                                                                                          numbers].
 
*                  *                  *                  *                  *                  *
                                                        *
----------------------------------------------------------------------------------------------------------------


[[Page 10139]]

PART 302--DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION

    15. The authority citation for Part 302 continues to read as 
follows:

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

    16. In Sec. 302.4, Table 302.4 is amended by adding the following 
new entries in alphanumeric order at the end of the table, to read as 
follows. (The appropriate footnotes to Table 302.4 are republished 
without change.)


Sec. 302.4  Designation of hazardous substances.

* * * * *

[[Page 10140]]



                                            Table 302.4.--List of Hazardous Substances and Reportable Quantities
                                             [Note: All Comments/Notes Are Located at the End of This Table]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                  Statutory                                     Final RQ
        Hazardous Substance             CASRN      Regulatory ------------------------------------------------------------------------------------------
                                                    synonyms        RQ          Code         RCRA waste No.           Category           Pounds  (Kg)
------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
K179...............................  ...........  ...........           1*             4  K179                  X                    100
                                                                                                                                     (45.4)
Paint manufacturing waste solids
 generated by paint manufacturing
 facilities that, at the point of
 generation, contain any of the
 constituents identified in
 paragraph Sec.  261.32 (b)(6)(iii)
 at a concentration equal to or
 greater than the hazardous level
 set for that constituent in
 paragraph Sec.  261.32(b)(6)(iii).
 Paint manufacturing waste solids
 are: (1) Waste solids generated
 from tank and equipment cleaning
 operations that use solvents,
 water and or caustic; (2) emission
 control dusts or sludges; (3)
 wastewater treatment sludges; and
 (4) off-specification product.
 Waste solids derived from the
 management of K180 by paint
 manufacturers would also be
 subject to this listing. Waste
 solids derived from the management
 of K179 by paint manufacturers are
 not covered by this listing, but
 such solids are subject to the
 K180 listing. For the purposes of
 this listing, paint manufacturers
 are defined as specified in
 paragraph Sec.  261.32(b).
K180...............................  ...........  ...........           1*             4  K180                  X                    100
                                                                                                                                     (45.4)
Paint manufacturing waste solids
 generated by paint manufacturing
 facilities that, at the point of
 generation, contain any of the
 constituents identified in
 paragraph Sec.  261.32(b)(6)(iii)
 at a concentration equal to or
 greater than the hazardous level
 set for that constituent in
 paragraph Sec.  261.32(b)(6)(iii)
 unless the wastes are stored or
 treated exclusively in tanks or
 containers prior to discharge to a
 POTW or under a NPDES permit.
 Paint manufacturing liquids are
 generated from tank and equipment
 cleaning operations that use
 solvents, water, and/or caustic.
 Waste liquids derived from the
 management of K179 by paint
 manufacturers would also be
 subject to this listing. Waste
 liquids derived from the
 management of K180 by paint
 manufacturers are not covered by
 this listing, but such liquids are
 subject to the K179 listing. For
 the purposes of this listing,
 paint manufacturers are defined as
 specified in paragraph Sec.
 261.32(b).
 
                     *                  *                  *                  *                  *                  *              *
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Indicates the statutory source as defined by 1, 2, 3, and 4 below.
 
*                  *                  *                  *                  *                  *                  *
 
4--Indicates that the statutory source for designation of this hazardous substance under CERCLA is RCRA Section 3001.
1\*\ Indicates that the 1-pound RQ is a CERCLA statutory RQ.
 
*                  *                  *                  *                  *                  *                  *

[FR Doc. 01-3087 Filed 2-12-01; 8:45 am]
BILLING CODE 6560-50-U