[Federal Register Volume 67, Number 65 (Thursday, April 4, 2002)]
[Rules and Regulations]
[Pages 16262-16283]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-8153]



[[Page 16261]]

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

Part III





Environmental Protection Agency





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



40 CFR Parts 148, 261, et al.



Hazardous Waste Management System; Identification and Listing of 
Hazardous Waste; Paint Production Wastes; Land Disposal Restrictions 
for Newly Identified Wastes; and CERCLA Hazardous Substance Designation 
and Reportable Quantities; Final Determination; Final Rule

  Federal Register / Vol. 67 , No. 65 / Thursday, April 4, 2002 / Rules 
and Regulations  

[[Page 16262]]


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

ENVIRONMENTAL PROTECTION AGENCY

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

[SWH-FRL-7167-8]
RIN 2050-AE32


Hazardous Waste Management System; Identification and Listing of 
Hazardous Waste; Paint Production Wastes; Land Disposal Restrictions 
for Newly Identified Wastes; and CERCLA Hazardous Substance Designation 
and Reportable Quantities; Final Determination

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final determination.

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

SUMMARY: The Environmental Protection Agency (EPA) is issuing a final 
determination not to list as hazardous certain wastes generated from 
the production of paint. EPA is making this determination under the 
Resource Conservation and Recovery Act (RCRA), which directs EPA to 
determine whether certain wastes from the paint production industry may 
present a substantial hazard to human health or the environment. EPA 
proposed concentration-based listings for certain paint waste solids 
(K179) and liquids (K180) on February 13, 2001. However, following a 
review of the public comments and supplemental analyses based on public 
comments, EPA has determined that the paint wastes identified in the 
February 13, 2001 proposal do not present a substantial hazard to human 
health or the environment. Therefore, EPA is making a final 
determination that these paint wastes are not listed hazardous wastes. 
Also, because the identified paint wastes are not listed hazardous 
wastes, EPA is not promulgating Land Disposal Restriction (LDR) 
treatment standards for these wastes, designating these wastes as 
Comprehensive, Environmental Response, Compensation, and Liability Act 
(CERCLA) hazardous substances with reportable quantities (RQs), or 
designating any of the constituents in these wastes as new Appendix 
VIII constituents.

EFFECTIVE DATE: May 6, 2002.

ADDRESSES: Supporting materials are available for viewing in the RCRA 
Information Center (RIC), located at Crystal Gateway I, First Floor, 
1235 Jefferson Davis Highway, Arlington, VA. The Docket Identification 
Number is F-2002-PMLF-FFFFF. The RIC is open from 9 a.m. to 4 p.m., 
Monday through Friday, excluding federal holidays. To review docket 
materials, we recommend that you make an appointment by calling (703) 
603-9230. The public may copy a maximum of 100 pages from any 
regulatory docket at no charge. Additional copies cost $0.15/page. The 
index and some supporting materials are available electronically. See 
the beginning of the SUPPLEMENTARY INFORMATION section for information 
on accessing them.

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 
notice, contact Ms. Patricia Cohn of the Office of Solid Waste (5304W), 
U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW, 
Washington, DC 20460. [E-mail address and telephone number: 
[email protected], (703) 308-8675.]

SUPPLEMENTARY INFORMATION: The docket index and some supporting 
documents in the docket for this determination are available in 
electronic format on the Internet at: http://www.epa.gov/epaoswer/hazwaste/id/paint.
    We will keep the official record for this action in paper form. The 
official record is the paper record maintained at the RCRA Information 
Center, also referred to as the Docket, at the address provided in the 
ADDRESSES section at the beginning of this document.

                                          Acronyms Used in the Document
----------------------------------------------------------------------------------------------------------------
                          Acronym                                                 Definition
----------------------------------------------------------------------------------------------------------------
CAA........................................................  Clean Air Act.
CERCLA.....................................................  Comprehensive Environmental Response Compensation
                                                              and Liability Act.
CFR........................................................  Code of Federal Regulations.
CWT........................................................  Centralized Wastewater Treatment Facility (may also
                                                              be referred to as a wastewater treatment facility,
                                                              or WWTF).
ED.........................................................  Environmental Defense (previously Environmental
                                                              Defense Fund or EDF).
EO.........................................................  Executive Order.
EPA........................................................  Environmental Protection Agency.
FR.........................................................  Federal Register.
HAP........................................................  Hazardous Air Pollutant.
HQ.........................................................  Hazard Quotient.
HSWA.......................................................  Hazardous and Solid Waste Amendments.
ICR........................................................  Information Collection Request.
LDR........................................................  Land Disposal Restriction.
MACT.......................................................  Maximum Achievable Control Technology.
mg/kg......................................................  Milligram per kilogram.
MSDS.......................................................  Material Safety Data Sheet.
NAICS......................................................  North American Industrial Classification System.
NESHAP.....................................................  National Emission Standards for Hazardous Air
                                                              Pollutants.
NPDES......................................................  National Pollutant Discharge Elimination System.
NTTAA......................................................  National Technology Transfer and Advancement Act.
AIM Rule...................................................  National Volatile Organic Compound Emissions
                                                              Standards for Architectural Coatings and
                                                              Industrial Maintenance Coatings (AIM) rule.
OEM........................................................  Original Equipment Manufacturing.
OSHA.......................................................  Occupational Safety and Health Administration.
OMB........................................................  Office of Management and Budget.
OSWER......................................................  Office of Solid Waste and Emergency Response.
POTW.......................................................  Publicly Owned Treatment Works.
ppm........................................................  Parts Per Million.
RCRA.......................................................  Resource Conservation and Recovery Act.

[[Page 16263]]

 
RFA........................................................  Regulatory Flexibility Act.
RfC........................................................  Reference Concentration.
RFSA.......................................................  Regulatory Flexibility Screening Analysis.
RIC........................................................  RCRA Information Center.
RQ.........................................................  Reportable Quantity.
SBA........................................................  Small Business Administration.
SBREFA.....................................................  Small Business Regulatory Enforcement Fairness Act.
SIC........................................................  Standard Industry Code.
TC.........................................................  Toxicity Characteristic.
TRI........................................................  Toxic Release Inventory.
UMRA.......................................................  Unfunded Mandates Reform Act.
USC........................................................  United States Code.
UTS........................................................  Universal Treatment Standard.
VOC........................................................  Volatile Organic Compound.
----------------------------------------------------------------------------------------------------------------

    The contents of this final determination are listed in the 
following outline:

I. Overview
    A. Who Will be Affected by this Final Determination?
    B. What is the ``Readable Regulations'' Format?
    C. What are the Statutory Authorities for this Final 
Determination?
    D. Does this Final Determination Satisfy the Terms of the ED v. 
Whitman Consent Decree?
II. Summary of Today's Action
    A. Waste Liquids from Paint Manufacturing
    B. Waste Solids from Paint Manufacturing
III. Summary of Proposed Rule
    A. What Regulations did EPA Propose?
    B. What Paint Manufacturing Wastes are Within the Scope of the 
Consent Decree for this Listing Determination?
    C. What Risk Assessment Approach Was Used for the Proposed Rule?
    D. Which Wastes did EPA Propose to List as Hazardous?
    1. Waste Solids from Paint Manufacturing that Meet Certain 
Constituent Concentration Levels (K179)
    2. Waste Liquids from Paint Manufacturing that Meet Certain 
Constituent Concentration Levels, Unless Managed Under Certain 
Conditions (K180)
IV. What is the Rationale for Today's Final Determination?
    A. What is the Basis for EPA's Final Determination Not to List 
Paint Production Waste Liquids?
    1. Management Scenario
    2. Estimates of Surface Impoundment Risks Were Likely Overstated
    3. Impact of Modeling Error
    4. Other Regulatory Programs
    5. Conclusion for Paint Production Waste Liquids
    B. What is the Basis for EPA's Final Determination Not to List 
Paint Production Waste Solids?
    1. Changes to the Risk Assessment
    2. RCRA Section 3007 Survey of Paint Manufacturers
    3. Interpretation and Aggregation of Waste Volumes and 
Management Practices
    4. Statistical Design and Analysis of the RCRA Section 3007 
Survey Data for Estimating Waste Quantities
    a. Use of the Dun and Bradstreet Database
    b. Original Statistical Design and Analysis of the RCRA Section 
3007 Survey
    c. Commenter's Issues Concerning Incorrect Statistical Weights 
for Survey Responses Used to Calculate Waste Quantities
    d. Post Survey Adjustments to Weights
    e. Adjusted Statistical Analyses of RCRA Section 3007 Survey 
Data
    5. Concentration Levels for the Key Constituents of Concern and 
the Likelihood That They Occur in Wastes
    6. Conclusion for Paint Production Waste Solids
V. Analytical and Regulatory Requirements
    A. Executive Order 12866: Regulatory Planning and Review
    B. What Economic and Equity Analyses Were Completed in Support 
of the Proposed Listing for Paint Production Wastes?
    C. What Substantive Comments Were Received on the Cost/Economic 
Aspects of the Proposed Listing for Paint Production Wastes?
    D. What Are the Potential Costs and Benefits of Today's Final 
Determination?
    E. 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.?
    F. Was the Unfunded Mandates Reform Act Considered in this Final 
Determination?
    G. Were Equity Issues and Children's Health Considered in this 
Final Determination?
    1. Executive Order 13045: ``Protection of Children from 
Environmental Health Risks and Safety Risks''
    2. Executive Order 12898: Environmental Justice
    H. What Consideration Was Given to Tribal Governments?
    I. Were Federalism Implications Considered in Today's Final 
Determination?
    J. Were Energy Impacts Considered?
VI. Paperwork Reduction Act
VII. National Technology Transfer and Advancement Act of 1995
VIII. The Congressional Review Act (5 U.S.C. 801 et. seq., as Added 
by the Small Business Regulatory Enforcement Fairness Act of 1996)

I. Overview

I. Who Will Be Affected by This Final Determination?

    Beginning January 1, 1999 all documents related to EPA's 
regulatory, compliance and enforcement activities, including rules, 
policies, interpretive guidance, and site-specific determinations with 
broad application, should properly identify the regulated entities, 
including descriptions that correspond to the applicable SIC codes or 
NAICS codes (source: October 9, 1998 USEPA memo from Peter D. 
Robertson, Acting Deputy Administrator of USEPA). The proposed listing 
determination had the potential to affect manufacturers of paints and 
coatings, as well as those who handle the wastes, such as landfills. 
However, we have decided not to list these wastes as hazardous under 
Subtitle C of RCRA program. Therefore, today's action will not have any 
effect on any entities.

B. What Is the ``Readable Regulations'' Format?

    Today's final listing determination is written in ``readable 
regulations'' format, using: active rather than passive voice; plain 
language; a question-and-answer format; the pronouns ``we'' for EPA and 
``you'' for the owner/generator; and other techniques to make the 
information in today's notice easier to read and understand. This 
format is part of our efforts toward regulatory re-invention. We 
believe this format helps readers understand the Agency's regulatory 
decisions and regulations (if any), which should then increase 
compliance, make enforcement easier, and foster better relationships 
between EPA and the regulated community.

[[Page 16264]]

C. What Are the Statutory Authorities for This Final Determination?

    We conducted this investigation and listing determination 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 several times, 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)).

D. Does This Final Determination Satisfy the Terms of the ED v. Whitman 
Consent Decree?

    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), which recently changed its name to Environmental Defense (ED), 
filed a lawsuit to enforce the statutory deadlines for listing 
decisions in RCRA section 3001(e)(2). (ED vs. Whitman, D.D.C. Civ. No. 
89-0598). To resolve most of the issues in the case, ED 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 final determination satisfies EPA's duty under paragraph 1.d to 
promulgate listing determinations for the specified paint production 
wastes. Moreover, compliance with the consent decree fulfills EPA's 
duty to make listing determinations for the paint production industry 
under section 3001(e)(2) of RCRA.

II. Summary of Today's Action

    In today's notice, we are finalizing a determination not to add 
paint production wastes to the list of hazardous wastes in 40 CFR 
261.32. However, this determination does not in any way affect the 
status of these wastes under existing hazardous waste listings. Also, 
these wastes remain subject to a determination on whether or not they 
exhibit any of the hazardous waste characteristics (see 40 CFR 261.21 
through 261.24).
    We apply the listing criteria described in 40 CFR 261.11 to make 
listing determinations. We are making this listing determination based 
on the third criterion (see 40 CFR 261.11(a)(3)), which includes a 
number of factors for consideration as are discussed below. We assessed 
and considered these factors for each of the wastestreams identified in 
the consent decree that are generated by the paint production industry 
through the use of risk assessments and risk modeling, as well as 
consideration of other pertinent information. Today's final listing 
determination follows the elements of our listing decision policy that 
was presented in the proposed listing determination for wastes 
generated by the dye and pigment industries published in the Federal 
Register on December 22, 1994 (see 59 FR at 66073). This policy uses a 
``weight-of-evidence'' approach in which calculated risk information is 
a key factor in making a listing determination.
    Under 40 CFR 261.11(a)(3), there are eleven factors for determining 
whether a waste is capable of posing a ``substantial present or 
potential hazard to human health or the environment.'' Nine of these 
factors, as described generally below, are directly incorporated into 
EPA's completion of a risk assessment for the wastestreams of 
concern:\1\
---------------------------------------------------------------------------

    \1\ The remaining two factors, damage cases as result of 
mismanagement and other factors (Secs. 261.11(a)(3)(ix) and 
261.11(a)(3)(xi)) are considered, as appropriate.
---------------------------------------------------------------------------

     Toxicity (Sec. 261.11(a)(3)(i)) is considered in 
developing the health benchmarks used in the risk assessment modeling.
     Constituent concentrations and waste quantities 
(Secs. 261.11(a)(3)(ii) and 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 (Secs. 261.11(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.
     Plausible mismanagement and other regulatory actions 
(Secs. 261.11 (a)(3)(vii) and 261.11(a)(3)(x)) are considered for 
establishing the waste management scenario(s) modeled in the risk 
assessment.
    EPA conducted analyses of the risks posed by waste solids (K179) 
and waste liquids (K180) from the production of paint to assist in the 
determination of whether the wastes meet the criteria for listing set 
forth in 40 CFR 261.11(a)(3). In the preamble to the proposed rule (66 
FR 10060), we discussed the human health risk analyses and ecological 
risk screening analyses EPA conducted to support our proposed listing 
determinations for K179 and K180. These analyses, as well as comments 
EPA received on the analyses, are further discussed in this notice in 
section IV below. We considered the results of the risk analyses, as 
well as comments received, and the results of analyses conducted in 
response to information provided by public commenters in finalizing our 
listing determinations for each wastestream. The risk analyses 
conducted in support of our proposed listing determination are 
presented in detail in the Risk Assessment Technical Background 
Document for the Paint and Coatings Hazardous Waste Listing 
Determination. Additional information and analyses conducted in 
response to comments received on our proposed rule are included in the 
Addendum to the Risk Assessment Technical Background Document for the 
Paint and Coatings Hazardous Waste Listing Determination. This document 
is located in the docket for today's final determination.

A. Waste Liquids From Paint Manufacturing

    We are making a final determination not to list waste liquids from 
paint manufacturing, because we now believe that the management 
scenario we used as the basis for the proposed listing, an off-site 
unlined surface impoundment, is not plausible. Information we received 
in comments indicates that management in any surface impoundment is a 
rare occurrence (we found only one case), and we have no indication 
that such units are unlined. Furthermore, we also found an error in our 
modeling equations that overestimated risks for most constituents of 
concern (discussed in detail in section IV.B.1). This factor, as well 
as the infrequent occurrence of other key constituents in the waste, 
further supports our decision not to list this waste. Finally, we 
believe that existing and upcoming regulations under RCRA and the Clean 
Air Act (CAA) will limit the levels of most

[[Page 16265]]

organic chemicals of concern in paint wastes.

B. Waste Solids From Paint Manufacturing

    We also are making a final determination not to list waste solids 
from paint manufacturing. Correcting an error in modeling (discussed 
above and in detail in section IV.B.1) causes some constituents to drop 
from further consideration. In addition, after considering information 
we received in comments, as well as information we collected from the 
survey and elsewhere, we do not now believe the concentrations of the 
remaining constituents of concern in paint wastes would approach the 
listing levels. While one of the constituents (antimony) has some uses 
in paint formulations, we do not believe we have a reasonable basis to 
list this waste for this constituent. In particular, we did not find 
any surveyed facility that generated wastes with antimony 
concentrations at or above the listing level. Furthermore, we believe 
any paint waste solids with high antimony levels would be generated 
infrequently and not pose significant risks.

III. Summary of Proposed Rule

A. What Regulations Did EPA Propose?

    In the February 13, 2001 proposed rule (66 FR 10060), we proposed 
two hazardous waste listings, K179 for paint manufacturing waste solids 
and K180 for waste liquids. We proposed a concentration-based listing, 
such that only wastes that met or exceeded certain listing levels for 
constituents of concern would have to be managed as hazardous under 
RCRA. We proposed that if you generate any of the identified 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 
proposed 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 concentration 
level set for that constituent.
    As part of the K179 and K180 listing process, EPA also proposed to 
amend Appendix VIII of 40 CFR part 261 to add n-butyl alcohol, ethyl 
benzene, methyl isobutyl ketone, styrene, and xylenes to the list of 
hazardous constituents. We also proposed to add the constituents that 
served as the basis for the proposed listings to Appendix VII.
    Under the Land Disposal Restrictions program, we proposed to: 
establish treatment standards for each of the two candidate listings; 
add styrene to the Universal Treatment Standards (UTS) Table in 268.48; 
add styrene and acrylamide to the F039 treatment standards applicable 
to hazardous waste landfill leachate; and designate styrene as an 
underlying hazardous constituent.
    We also proposed to designate K179 and K180 as hazardous substances 
subject to the release reporting requirements under the Comprehensive 
Environmental Response, Compensation, and Liability Act (CERCLA) and to 
adjust their one pound statutory reportable quantities (RQs).
    We proposed 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 determined that none of 
the constituents were present, your wastes would not be considered K179 
or K180 and you would have no further obligation for making a listing 
determination. However, the wastes would have remained subject to a 
determination on whether or not they exhibit any of the hazardous waste 
characteristics (see 40 CFR 261.21 through 261.24). If there was a 
possibility that the constituents of concern might be present, we 
proposed a two tiered approach for determining whether the wastes were 
hazardous at the point of generation. If your total projected annual 
generation of paint manufacturing waste solids was more than 40 metric 
tons, and/or more than 100 metric tons of waste liquids, you would need 
to test your wastes annually to determine whether constituent 
concentrations were below the listing levels. If your projected annual 
waste volumes were below these levels, you could use knowledge of the 
waste or testing to determine whether the wastes were hazardous. 
Alternatively you could assume your wastes were hazardous.
    If your wastes met the listing description, they would have been 
subject to all applicable RCRA subtitle C hazardous waste requirements, 
including the LDR requirements. You can find more detailed discussions 
of the proposal in the preamble to the proposed rule and in the 
Background Documents we have placed in the rulemaking docket.

B. What Paint Manufacturing Wastes Are Within the Scope of the Consent 
Decree for This Listing Determination?

    EPA based its decisions regarding the scope of the industries and 
wastes covered by the proposed listing on RCRA section 3001(e)(2) and 
the ED v. Whitman (D.D.C. Civ. No. 89-598) consent decree. The proposed 
rule applied to paint and coatings manufacturers.\2\ It did not apply 
to miscellaneous allied products\3\ or artist paint.
---------------------------------------------------------------------------

    \2\ Including, but not limited to, entities who manufacture: 
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).
    \3\ Not included were paint and varnish removers, thinners for 
lacquers and other solvent-based paint products, pigment dispersions 
or putty.
---------------------------------------------------------------------------

    The consent decree required the Agency to make hazardous waste 
listing determinations on five types of paint production wastes. These 
wastes are:

    (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;
    (5) off-specification production wastes as waste solids.

    We stated that the proposed listing would not apply to off-
specification paint that a downstream entity decides to discard or send 
back to the manufacturer. However, once the manufacturer determined 
that unused product was destined for disposal, that off-specification 
product would be subject to the listing.

C. What Risk Assessment Approach Was Used for the Proposed Rule?

    We conducted human health risk analyses and a screening level 
ecological risk assessment to support our proposed concentration-based 
listing determinations. The human health risk assessments that we 
conducted to support the listing determination included four primary 
tasks: (1) Selecting constituents of potential concern in waste, (2) 
evaluating plausible waste management scenarios, (3) calculating 
exposure concentrations by modeling the release and transport of the 
constituents from the waste management unit to the point of exposure, 
and (4) calculating waste concentrations that are unlikely to pose 
unacceptable risk.
    In choosing potential constituents of concern, we identified 
commonly used,

[[Page 16266]]

potentially hazardous constituents that could pose unacceptable risk if 
present in mismanaged paint manufacturing wastes. In addition, we 
selected constituents for which SW-846 test methods were available and 
for which we had access to toxicity, fate, and transport data with 
which to conduct a risk assessment (see 66 FR 10084).
    Establishing plausible exposure scenarios depended on the way a 
particular waste was being or could be managed. We reviewed current 
waste handling practices reported in the RCRA 3007 survey and based on 
that chose to model four waste management scenarios: (1) Waste solids 
disposed in industrial nonhazardous waste landfills; (2) waste liquids 
stored and treated in off-site tanks at centralized wastewater 
treatment facilities (CWTs) prior to discharge to a POTW or under an 
NPDES permit; (3) waste liquids disposed in surface impoundments at 
CWTs; and (4) waste liquids stored and treated in tanks on-site at 
paint manufacturing facilities prior to discharge to a POTW or under an 
NPDES permit.
    We used information on the national distributions of waste 
management unit characteristics (e.g., size and waste capacity) 
collected in surveys conducted for other rulemakings to establish the 
characteristics of the off-site waste management units. On the other 
hand, we used information from the RCRA 3007 survey on the nature of 
on-site management units and on the quantities of waste solids and 
liquids sent by each facility to the four management practices of 
concern.
    We determined that there are several pathways for releases from the 
management units. Each of the four waste management units can release 
vapor emissions to the air. Landfills can also release particulate 
emissions to the air from solids disposed of in landfills. Releases can 
also occur through leaching of waste into the subsurface from landfills 
and surface impoundments. We assumed that tanks were sufficiently 
impermeable that they were highly unlikely to release volumes of waste 
to the subsurface sufficient to pose an unacceptable groundwater risk.
    Human receptors may be exposed to releases through a variety of 
routes, both direct and indirect. Direct routes include consumption of 
affected groundwater and inhalation of ambient air or air in the home 
contaminated by releases from use of affected groundwater. Indirect 
paths include consumption of contaminated food products such as 
vegetables, beef and dairy products, and fish. We conducted contaminant 
fate and transport modeling and indirect exposure modeling to determine 
what the concentrations will be in the media with which a human 
receptor comes into contact. There are a number of computer-based 
models and equations that we used to predict these concentrations.
    As part of the characterization of the risk levels from human 
exposures to the constituents of concern, toxicity information on each 
constituent of concern was integrated with the results of the exposure 
assessment. Chronic human health benchmarks were used in this 
assessment to evaluate potential noncancer and cancer risks.
    The calculated concentration levels we proposed represent the 
probabilistic results at the 90th percentile risk level based on 
individuals living closest to the waste management unit. In other 
words, for 90% of the receptor scenarios we evaluated, the 
concentration levels are lower than our chosen target cancer risk level 
of 1E-05 (one chance in 100,000) excess lifetime cancer risk for 
individuals exposed to carcinogens in the waste streams or, for 
noncarcinogens, the target hazard quotient (HQ) of 1.0.
    In general, we relied on the risk assessment results to guide us in 
deciding which constituents would be most useful for defining which 
paint manufacturing wastes should potentially be listed hazardous 
wastes. We dropped constituents from further examination if the risk-
based concentration levels for the waste exceeded or approached 100% of 
the waste mass because such conditions were unlikely to exist in the 
wastes we examined. We also chose not to include constituents that are 
already sufficiently regulated by the Toxicity Characteristic.
    The preamble to the proposed rule provides a detailed discussion of 
EPA's risk assessment for the paint manufacturing listing determination 
(see 66 FR 10083). A full description of all risk analyses conducted in 
support of our listing determinations finalized in today's decision can 
be found in the risk assessment background documents available in the 
docket. (See Risk Assessment Technical Background Document for the 
Paint and Coatings Hazardous Waste Listing Determination and Addendum 
to the Risk Assessment Technical Background Document for the Paint and 
Coatings Hazardous Waste Listing Determination.)

D. Which Wastes Did EPA Propose To List as Hazardous?

1. Waste Solids From Paint Manufacturing That Meet Certain Constituent 
Concentration Levels (K179)
    We proposed to list as hazardous those waste solids from paint 
manufacturing that meet certain constituent concentration levels for 
the following constituents: acrylamide, acrylonitrile, antimony, methyl 
isobutyl ketone, and methyl methacrylate. This proposed listing 
included waste solids generated by paint manufacturing facilities from 
tank and equipment cleaning operations that use solvents, water, and/or 
caustic; emission control dusts; wastewater treatment sludges; or off-
specification product.
    We also proposed to use the listing concentrations as ``exit'' 
levels for residues from paint manufacturing waste solids (K179). The 
use of the listing concentrations as exit levels would terminate the 
applicability of the derived-from rule and, therefore, the treatment 
residues would no longer be considered a listed hazardous waste.
2. Waste Liquids From Paint Manufacturing That Meet Certain Constituent 
Concentration Levels, Unless Managed Under Certain Conditions (K180)
    We proposed to list waste liquids from paint manufacturing that 
meet certain constituent concentration levels for the following 
constituents: acrylamide, acrylonitrile, antimony, ethylbenzene, 
formaldehyde, methyl isobutyl ketone, methyl methacrylate, methylene 
chloride, n-butyl alcohol, styrene, toluene, and xylene (mixed 
isomers). This proposed listing included waste liquids generated by 
paint manufacturing facilities from tank and equipment cleaning 
operations that use solvents, water, and/or caustic.
    We proposed this listing as a contingent-based listing. That is, 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 proposed listing and you would not need to make a 
hazardous waste determination for those wastes. We proposed this 
approach because we believe wastes managed in this manner do not pose 
sufficient risk to warrant hazardous waste regulation.
    Due to the uncertainties in our assessment of the management of 
paint manufacturing liquids in surface impoundments, we also proposed 
an alternative option not to list waste liquids from paint 
manufacturing. Further details of the proposed listings

[[Page 16267]]

and the various options are contained in the proposed rule (66 FR 
10108).

IV. What Is the Rationale for Today's Final Determination?

A. What Is the Basis for EPA's Final Determination Not To List Paint 
Production Waste Liquids?

    We have decided not to list as hazardous waste liquids generated by 
paint manufacturing facilities. We proposed a hazardous waste listing, 
K180, for paint manufacturing waste liquids that contain any of the 
twelve constituents of concern at or above the designated listing 
levels. In the proposed rule, we based our listing levels on modeling 
we performed for a surface impoundment scenario. We found potential 
risks of concern from the management of liquid wastes in an off-site 
centralized wastewater treatment system with an unlined surface 
impoundment; thus, we proposed the K180 listing. However, we noted in 
the proposal (66 FR 10108) that we were also considering not listing 
this waste due to the uncertainties with the management practice that 
we modeled in our risk assessment. We received numerous comments 
disputing the plausibility of this scenario and questioning other 
assumptions we used in modeling. Furthermore, as noted in the 
discussion of risk assessment issues in section IV.B, we found an error 
in the model that overestimated risks for eight of the 12 constituents. 
Below we summarize the critical comments we received and present our 
rationale for not listing waste liquids from paint manufacturing.
1. Management Scenario
    The Agency received eight comments from industry and industry 
associations stating that disposal in unlined surface impoundments is 
not a plausible waste management scenario. For example, one commenter 
noted that the listing proposal for liquid paint production wastes is 
driven by potential risks arising from unlined surface impoundments. 
However, EPA identified only one case where a surface impoundment was 
used to manage these wastes. The commenter stated that this limited 
waste management practice does not support a nationwide listing. In 
addition, the commenter argued that EPA should not rely on a management 
scenario as the basis for a hazardous waste listing unless it 
establishes a ``rational relationship'' between the wastes and the 
management scenario.
    When researching possible risks from the management of liquid paint 
wastes in surface impoundments for the proposal, we contacted nine of 
the 24 off-site centralized wastewater treatment (CWT) facilities that 
were reported in the RCRA 3007 survey to receive liquid wastes from 
paint manufacturers. We found only one facility and it used lined 
surface impoundments. We extrapolated this finding to suggest that 
there may be other facilities with surface impoundments, and that 
perhaps as many as 4 or 5 CWT facilities that receive paint wastes may 
use surface impoundments of some kind.\4\ One commenter contacted the 
remaining active CWT facilities (three were no longer in business) that 
were reported to receive paint manufacturing waste and found that none 
of the remaining facilities used surface impoundments. The commenter 
argued that, based on EPA's own statistics, there would only be at most 
one other unidentified surface impoundment in addition to the 
identified lined surface impoundment managing waste liquids from paint 
manufacturing. The commenter concluded that a surface impoundment, 
particularly an unlined surface impoundment, is not a plausible 
management scenario, and that using this speculative scenario 
overestimates potential risks from the disposal of paint manufacturing 
waste liquids.
---------------------------------------------------------------------------

    \4\ The commenter suggested that the number of possible 
impoundments estimated by EPA's contractor was 2-4, not the 4-5 EPA 
described in the proposal. However, we note that the estimate of 2-4 
was for the sampled facilities, and that the estimates of 4 and 5 
were derived for the larger number of relevant paint manufacturers 
in the database of interest (see the memo from Paul Denault, Dynamac 
Corp., to Dave Carver of EPA, October 4, 2000).
---------------------------------------------------------------------------

    After reviewing the information in the comments and reconsidering 
the available information, we agree with the commenters that the use of 
surface impoundments for treatment of paint manufacturing waste liquids 
appears to be even less frequent than we estimated at the proposal. Our 
data for the surveyed facilities show that one off-site CWT facility 
used surface impoundments to treat paint manufacturing wastes, and 
probably no more than two such facilities are likely to exist 
nationwide that accept liquid wastes from paint manufacturers.\5\ The 
one facility that we found to use impoundments has only lined 
impoundments, and we have no indication that off-site unlined 
impoundments are used for this waste.\6\ Therefore, we concur that the 
management scenario we modeled, an unlined surface impoundment, does 
not appear plausible, because the factual record does not support a 
finding that this management scenario is either currently in use or is 
likely to be used in the future (for further discussion of EPA's 
concept of plausible management see the proposed rule for solvent 
wastes at 61 FR 42323, August 14, 1996, and also the final 
determination for solvents at 63 FR 64384, November 19, 1998).
---------------------------------------------------------------------------

    \5\ See Table 4 in the memo from Paul Denault, Dynamac Corp., to 
Dave Carver of EPA, October 4, 2000. Knowing the ``true'' value for 
the number of impoundments for the facilities in the survey to be 
one, the number of impoundments for the total population of 
facilities of interest was estimated to be two.
    \6\ The 3007 Survey data also did not show any facilities using 
on-site surface impoundments for paint manufacturing wastes.
---------------------------------------------------------------------------

    As noted in the proposed rule, we also believe that the level of 
protection afforded by a liner system could be significant for a 
surface impoundment, which will contain liquid wastes only during its 
operating life (66 FR 10108). A lined impoundment with a finite 
operational life (30 to 50 years) is less likely to release liquids; 
releases to the subsurface would be reduced due the liner and leachate 
collection system in place. If, however, leaks occurred in the liners 
of such an impoundment during its operating life, the unit can be 
drained and repaired before continued use. Therefore, we do not believe 
the risk analysis presented in the proposal for unlined impoundments 
can be applied to lined impoundments. For this reason, we are not 
listing the liquid paint wastes. We believe that our decision is 
further supported by the considerations presented in the following 
sections.
2. Estimates of Surface Impoundment Risks Were Likely Overstated
    In the proposed rule, we also discussed the likelihood that EPA's 
groundwater modeling scenarios contain impoundments with 
characteristics that are unlikely for large off-site treatment 
facilities, i.e., small units with low flow rates and long retention 
times (66 FR 10108). This is because the database we used for 
impoundment parameters contained data for on-site units, which may not 
be representative of off-site commercial CWT facilities. This means 
that many of the small impoundments used in the probabilistic modeling 
contained a high fraction of paint wastes. We suggested that this may 
not be representative of actual off-site commercial treatment units, 
which are likely to be larger, and that paint wastes would make up a 
smaller fraction of wastewaters in such units. One commenter contacted 
the CWT facility that reported a surface impoundment and found that

[[Page 16268]]

approximately 3% of all the liquid wastes accepted for surface 
impoundment treatment in 1998 came from the paint manufacturing 
industry. The commenter argued that if EPA used a more accurate 
estimate of the fraction of paint manufacturing wastes managed in 
surface impoundments (e.g., 3%), then this would significantly reduce 
or eliminate risks in EPA's assessment.
    After considering all the available information, we agree that the 
assumptions for the unit characteristics that we used for modeling 
likely resulted in an overestimate of possible risks from a surface 
impoundment. As noted in the proposal, the database of impoundments we 
used in modeling yielded a 90th percentile value of one for the 
fraction of paint manufacturing waste in impoundments, i.e., 100% of 
the liquid waste was assumed to be from paint manufacturing. While we 
did not attempt to quantify the effect of changing the waste fraction 
through modeling, we believe that using the much smaller waste fraction 
reported for the one known impoundment (3%) would reduce risks by over 
an order of magnitude. Thus, this is an additional factor that would 
make any significant risks from an impoundment scenario unlikely.
3. Impact of Modeling Error
    We also uncovered an error in our modeling due to the assumptions 
we used to account for risks arising from residential use of 
groundwater (e.g., showering). As we discuss in detail in section 
IV.B.1 below, correcting this error would significantly raise the 
listing levels for 8 of the 12 organic constituents (by about a factor 
of 50) that we proposed for liquid paint manufacturing wastes. When we 
consider the likely dilution that occurs for paint washed out during 
the cleaning of mixing tanks (estimated to be about a factor of 12.5 in 
the proposed rule, see 66 FR 10107), the levels of these chemicals in 
paints would approach or exceed 100% to generate wastewater 
concentrations at the increased listing levels.\7\ Similarly, two of 
the four remaining chemicals already had levels that were high, i.e., 
the proposed level for formaldehyde was 81,000 ppm and the level for n-
butyl alcohol was 41,000 ppm. Thus, factoring in a dilution of at least 
12.5 during wash out, the concentrations for these constituents in 
paint product also would approach unrealistic levels. When we factor in 
the likely overestimate of risk noted in the above section due to the 
waste fraction assumptions we used in the proposal, the listing levels 
would be another order of magnitude higher.
---------------------------------------------------------------------------

    \7\ The listing level for acrylonitrile would increase by a 
somewhat smaller factor due to the correction (i.e., by about a 
factor of 7, analogous to the increase found for waste solids) 
because its carcinogenic risk level becomes the critical endpoint 
after the correction. Thus, a listing level of about 65 ppm would 
result. Considering a dilution factor of 12.5 from washing out of a 
mixing tank, this would reqire a acrylonitrile level of over 800 ppm 
in the paint itself. For reasons noted in the discussion on waste 
solids, such levels in paint appear unlikely.
---------------------------------------------------------------------------

    The two remaining constituents that would not be affected by the 
modeling error are acrylamide and antimony. As discussed in the later 
section on paint waste solids, we now believe that these two 
constituents are not likely to be present in paint wastes at the 
proposed listing levels, or to be present so infrequently that they 
would not cause a substantial hazard to human health and the 
environment. In reaching this conclusion, we reviewed the 3007 survey 
further to assess the potential for liquid wastes to contain these 
constituents and be disposed of in impoundments of any sort. In the 
3007 survey, facilities reported the presence of acrylamide polymers in 
only two nonhazardous wash waters, and these were sent to POTWs, not 
off-site CWT facilities. Facilities reported antimony in only four 
nonhazardous wash waters and the reported levels were ``trace'' or well 
below the proposed listing level; three of the facilities sent their 
wastewaters to POTWs, while the other facility reported sending the 
treated wash water to a CWT facility. We contacted this generating 
facility and found it used a very small quantity of antimony-containing 
pigment in the manufacture of only a few paint batches per year. (This 
facility reported a single ingredient containing antimony out of 
hundreds of ingredients used in paint production.)
    Considering the impact of using the much smaller waste fraction 
reported for the one known impoundment, and after correcting for the 
model error (as well as considering the infrequent occurrence of 
significant levels for key constituents), the constituent 
concentrations in liquid paint wastes are not likely to approach the 
corrected listing levels for an impoundment scenario, even if an 
impoundment scenario was a plausible mismanagement scenario.
4. Other Regulatory Programs
    We received comments stating that EPA did not consider the full 
effect of existing or upcoming rules under the Clean Air Act (CAA) that 
would limit the potential risks from paint production wastes. 
Commenters cited several regulations, including the National Volatile 
Organic Compound Emissions Standards for Architectural Coatings and 
Industrial Maintenance Coatings (AIM) rule. They stated that 
regulations severely limiting the use of volatile organic compounds 
(VOCs) in paint products would greatly reduce VOCs in paint production 
waste as well. One commenter further indicated that, because our survey 
collected 1998 data, it does not take into account the changes that 
have or will be made in paint formulation to meet the AIM Rule 
regulatory levels.\8\ This would include changes required by many 
states in ozone non-attainment areas, which have developed even more 
stringent VOC regulations than the National AIM Rule.
---------------------------------------------------------------------------

    \8\ The final rule entitled National Volatile Organic Compound 
Emission Standards for Architectural Coatings (40 CFR part 59, 
subpart D) was published September 11, 1998 (FR 63 48848).
---------------------------------------------------------------------------

    Commenters pointed out that there are currently 14 major federal 
National Emission Standards for Hazardous Air Pollutants (NESHAP) 
surface coatings categories with Maximum Achievable Control Technology 
(MACT) standards that have been (or shortly will be) issued for a wide 
variety of industries. The commenters said that these ``Surface Coating 
MACTs'' will force coating application facilities to use coatings with 
low levels of Hazardous Air Pollutants (HAPs) to avoid installing 
expensive control technologies. The commenters argued that many 
customers will demand the production of low-HAP coatings, because most 
MACTs will require at least a 90-95% reduction in surface coating HAP 
emissions. Noting that nearly all the proposed waste constituents of 
concern in the proposed rule are HAPs, the commenters suggested that 
eliminating most of the HAPs in paint products will eliminate most HAPs 
in paint production waste. Finally, commenters stated that the planned 
MACT covering paint manufacturers (Miscellaneous Organic Chemical and 
Coatings Manufacturing, due to be published) will similarly reduce HAPs 
in paint formulations, and consequently production wastes.
    In general, we agree that the existing and upcoming regulations on 
air releases will limit the levels of many organic chemicals of concern 
in paint wastes. As we noted in the proposal (66 FR 10103), regulations 
that limit air releases from off-site CWT facilities are also likely to 
keep the levels of organic constituents low, including in impoundments 
that might exist. See subpart DD in 40 CFR part 63 sets NESHAPs for 
off-site waste and recovery operations, which may include

[[Page 16269]]

off-site centralized wastewater treatment facilities. The impacts of 
this and the other regulations cited on paint wastes are difficult to 
quantify. However, such standards provide incentives to reduce HAPs 
through source reduction or pretreatment to avoid costly engineering 
controls. Therefore, the impact of these other existing and potential 
regulatory controls contribute to our belief that listing of this waste 
is not warranted.
    Finally, a significant fraction of paint manufacturing wastes is 
already RCRA hazardous waste, primarily due to the regulations for 
characteristic hazardous waste under 40 CFR 261.21 through 261.24. From 
our survey of the industry, we found that about 36% of the liquid 
wastes were coded and managed as characteristic or listed hazardous 
waste. The characteristic liquid wastes typically exhibited the 
characteristic of ignitability or toxicity, and the listed liquid 
wastes usually were classified as solvent wastes (F001 through F005). 
We believe the existing RCRA regulations provide controls for those 
liquid paint wastes that are most likely to contain many of the 
constituents of concern, i.e., those with high solvent or organic 
content.
5. Conclusion for Paint Production Waste Liquids
    We are making a final determination not to list waste liquids from 
paint manufacturing. As noted in Section II of today's notice, we 
applied the factors under Sec. 261.11(a)(3) in making this listing 
determination. A key consideration is what constitutes a plausible 
management scenario for this waste (factor (vii) under 
Sec. 261.11(a)(3)). After reviewing the comments and considering all 
the available information, we believe that the management scenario we 
modeled, an unlined surface impoundment, is not plausible. We find that 
management of liquid paint wastes in surface impoundments appears to be 
rare, and we have no indication that such units are unlined. Therefore, 
we are not listing paint production waste liquids.
    This decision is supported by additional considerations. We 
considered most of the other factors under Sec. 261.11(a)(3) as part of 
our risk assessment methodology (factors (i) through (viii), including 
constituent toxicity, constituent concentration, constituent fate and 
transport, waste volumes).\9\ In this regard, we now believe that the 
unit characteristics we used for modeling impoundments likely resulted 
in an overestimation of possible risks. After correcting for a modeling 
error and considering the infrequent occurrence of key constituents, 
any remaining risks do not support a decision to list this waste, even 
if an unlined impoundment was plausible.
    Finally, we considered the impact of other regulatory programs on 
the potential management scenarios and the associated risks (factor 
(x)). We find that the existing and upcoming regulations under the 
Clean Air Act (CAA) will limit the levels of many organic chemicals of 
concern in paint wastes. We also find that a significant portion of 
paint production waste liquid is already managed as hazardous waste 
under RCRA. Therefore, after considering all these factors we conclude 
that a listing of paint production waste liquids is not warranted.
---------------------------------------------------------------------------

    \9\ Note that we also considered whether any damage cases 
arising from the mismanagement of paint manufacturing wastes (factor 
(ix)). We determined that the available data did not provide useful 
information for a listing determination (see 66 FR 10082-10083).
---------------------------------------------------------------------------

B. What Is the Basis for EPA's Final Determination Not To List Paint 
Production Waste Solids?

    We have decided not to list as hazardous waste solids generated by 
paint manufacturing facilities. We proposed a hazardous waste listing, 
K179, for paint manufacturing waste solids generated by paint 
manufacturing facilities that, at the point of generation, contain any 
of the five constituents of concern at or above the levels listed in 
Table IV.B-1 below. We tentatively found potential risks of concern 
from the management of waste solids in an off-site Subtitle D 
industrial landfill. The paint manufacturing waste solids in the 
proposed listing were: (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.

  Table IV.B-1.--Proposed Listing 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
------------------------------------------------------------------------

    After the comment period closed, we discovered an error in the 
calculation of human exposures from showering in the groundwater model 
that resulted in over estimating exposure levels (discussed in detail 
in section IV.B.1). In addition, we received numerous comments 
objecting to the proposed listing based on issues related to: (1) Our 
interpretation and aggregation of the 3007 survey data on waste volumes 
and management practices and whether they resulted in an overestimation 
of waste volumes that were used as inputs to the risk assessment; (2) 
the statistical design and analysis of the 3007 survey and whether it 
resulted in unrealistically large waste volume estimates; and (3) the 
potential for constituents of concern to be present in the waste.
    We discuss the correction to the showering model and the key issues 
commenters raised which influenced our final determination in the 
following sections. These issues are discussed in the order that we 
addressed them in our decision making. First, we corrected an error in 
the shower model that significantly overestimated inhalation exposures 
to noncarcinogens. As a result, two of the five potential constituents 
of concern were dropped from further consideration because their 
calculated listing concentration levels indicated they would not pose a 
risk. Second, we considered the public comments on our statistical 
analysis and use of the 3007 survey data to derive waste volumes that 
were key inputs to the risk assessment. As a result, we made some 
adjustments to our statistical analysis and derived adjusted waste 
volumes that we used to re-run the risk assessment. Finally, we 
considered the likelihood that constituents of concern would actually 
be present in the waste at concentrations that would pose an 
unreasonable risk to human health or the environment. We respond to 
public comments in the Paint Manufacturing Hazardous Waste Listing 
determination: Response to Comments Document (available in the docket 
for today's final determination).
1. Changes to the Risk Assessment
    We modified the exposure component of the shower model for non-
carcinogens to correct an error that we discovered in the risk 
analysis. The changes to the risk analysis for waste solids (described 
in the next paragraph) resulted in risk estimates which indicated that 
two of the five constituents (methyl isobutyl ketone and methyl 
methacrylate) were no longer of concern.
    For the risk assessment in the proposed listing determination, we 
assumed that contaminants may be transported in groundwater to domestic 
groundwater wells where the groundwater is extracted and used for 
showering in addition to drinking water.

[[Page 16270]]

We assumed that an adult resident inhales vapors that are emitted from 
the water used for showering. Exposure while showering was the driving 
pathway of exposure for several constituents in the proposed listing. 
This exposure pathway is modeled with a set of equations (hereafter 
referred to as the ``Shower Model'') that estimate the concentration of 
the constituent in the air after it has volatilized from the water 
during showering. Based on a review of the model, we determined that 
the air concentration estimated in the shower was not adjusted for an 
average inhalation exposure during a 24-hour day. Rather, it was 
incorrectly compared directly to the noncancer inhalation benchmarks, 
also known as reference concentrations (RfCs), in order to calculate a 
hazard quotient. The RfC is a chronic health benchmark and reflects a 
concentration in air to which an individual can be continuously exposed 
without experiencing any adverse health effects. A hazard quotient is 
the ratio of an individual's chronic daily dose of a noncarcinogen to a 
reference concentration (an estimate of daily exposure that is likely 
to be without appreciable risk or deleterious effects over a lifetime).
    The result of this direct comparison was that the human health 
hazard from non-carcinogens was based on an individual's exposure to 
air concentrations in the shower for 24 hours a day, every day. The air 
concentrations in the shower for the non-carcinogens should have been 
adjusted to account for the time the receptor is not showering. The 
non-cancer exposure component of the shower model has been modified to 
correct this error. For carcinogens, the exposure equations used in the 
proposal do account for the length of time spent in the shower so that 
the calculations for carcinogens were correct as proposed. Therefore, 
the listing levels for acrylamide were not affected by this change in 
the shower model. For antimony, the results do not change because 
antimony is not volatile and does not have an inhalation risk component 
from showering.
    Table IV.B-2 contains both the proposed and the corrected risk-
based concentration levels for the non-carcinogenic constituents 
(except antimony) we considered for the K179 waste solids listing 
proposal. The results are the total concentration in mg/kg for both the 
combined solid and emission control dust waste streams when managed in 
landfills. The ``corrected'' concentrations are what the concentrations 
would have been if there had not been an error in the shower model. The 
corrected concentrations were calculated using the original waste 
volume weights; thus, the only change in the risk assessment that is 
reflected in the table below is the correction of the shower model. The 
reason the acrylonitrile level did not increase as much as the others 
is due to the fact that the concentration level proposed was based on 
noncarcinogenic effects of acrylonitrile, whereas the corrected level 
is based on carcinogenic effects. That is, when the shower model 
correction was made, the concentration level based on noncarcinogenic 
effects increased to the point where carcinogenic effects are now 
considered to pose a greater risk and, therefore, are the basis for the 
corrected numbers.

 Table IV.B-2.--Risk-Based Concentration Levels for Constituents of Concern in Paint Manufacturing Wastes Which
                            Are Affected by Risk From Inhalation While Showering \1\
----------------------------------------------------------------------------------------------------------------
                                                       Combined waste solids        Emission control dust waste
                                                 ---------------------------------------------------------------
                   Constituent                       Proposal        Corrected       Proposal        Corrected
                                                   concentration   concentration   concentration   concentration
                                                   level (mg/kg)   level (mg/kg)   level (mg/kg)   level (mg/kg)
----------------------------------------------------------------------------------------------------------------
acrylonitrile...................................              60             440              43             310
methyl isobutyl ketone..........................         120,000               E          73,000               E
methyl methacrylate.............................          41,000               E          28,000              E
----------------------------------------------------------------------------------------------------------------
\1\ These levels are the concentrations in paint manufacturing waste that would potentially present unacceptable
  risk if met or exceeded. The ``corrected values'' shown in this table are calculated with the original
  facility weights used in the proposed listing.
E = risk-based waste concentration exceeds 1 million parts per million; therefore, these constituents were
  eliminated from the listing based on this finding.

2. RCRA Section 3007 Survey of Paint Manufacturers
    Our primary source of data for this regulatory determination is a 
survey of paint manufacturers conducted under authority of RCRA section 
3007. 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. As explained in the 
proposal, we used data from the 3007 survey of paint manufacturers for 
several purposes: (1) To provide 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; (3) to provide data for 
risk modeling parameters such as waste types and amounts sent to 
specific management practices; and (4) to assess land disposal 
restrictions treatment capacity and potential economic impact on the 
entire universe of paint manufacturers.
    The survey was a stratified random sample of 299 facilities 
identified as paint manufacturers in the Dun & Bradstreet data base. We 
stratified the sample to improve our coverage for various industry 
subsets that were most likely to generate large waste volumes and to 
identify the vast majority of waste management practices. The 
stratification divided the sampling universe into categories based on 
facility size, type of paint manufactured and Toxics Release Inventory 
(TRI) reporting status. Surveyed facilities were then randomly chosen 
from each category.
    Each surveyed facility was assigned a weight representing the total 
number of facilities in the category and how likely it was for any 
facility to be sampled from that category. For example, if a category 
had ten facilities and two facilities were sampled, the weight assigned 
to each facility in the category would be five. We used these weights 
to extrapolate from the surveyed facilities to the sampling population 
so that we could estimate the various waste streams and waste amounts 
that were generated by the population of paint manufacturing 
facilities, as well as the frequency of waste management practices. 
Again, as an example, if a facility with a weight of five reported 
generating 100 tons of emission control

[[Page 16271]]

dust that were disposed of in a nonhazardous waste landfill, we counted 
that as five facilities, each generating 100 tons of emission control 
dust disposed of in a nonhazardous waste landfill. For risk modeling 
purposes, 100 tons of emission control dust was entered into the waste 
volume distribution five times. We did not analyze the total quantity 
of nonhazardous waste solids from all paint manufacturers going into a 
single landfill because this scenario never occurs. When individual 
surveyed facilities reported sending multiple waste streams to a single 
landfill or when more than one facility reported sending solid waste 
streams to the same landfill (based on name and address provided by 
survey respondents), we added those waste volumes to ensure that we 
accurately reflect the combined quantities of paint waste solids that 
are sent to a single management unit. We also used facility weights to 
extrapolate for total volumes of paint manufacturing waste generated by 
the universe of paint manufacturers.
3. Interpretation and Aggregation of Waste Volumes and Management 
Practices
    For waste solids, we modeled one management scenario, disposal in 
an industrial nonhazardous waste landfill. The vast majority of waste 
solids are disposed of in municipal or industrial nonhazardous Subtitle 
D landfills, and, of these, about half go to industrial landfills. We 
did one risk assessment that combined the individual weighted waste 
volumes for all four solid waste streams that were reported being sent 
to Subtitle D landfills: tank and equipment cleaning sludges, 
wastewater treatment sludges, emission control dust, and off 
specification product. We did a separate assessment for emission 
control dust, using only the individual weighted waste volumes for 
dusts. The proposed listing description for K179 included all four 
solid waste streams in one waste code.
    One trade association objected to our modeling an industrial 
landfill rather than a municipal landfill. As stated above, we chose to 
model an industrial landfill because about half of the wastes going to 
Subtitle D landfills go to industrial landfills. There are only two 
differences in modeling assumptions for industrial nonhazardous 
landfills as compared to municipal landfills. First industrial 
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 assumed not to have daily cover. Both of these add to the 
conservatism of the protective constituent levels predicted by the risk 
assessment. Disposal in a Subtitle D industrial landfill is a plausible 
management scenario because approximately half of the facilities that 
directly land dispose their wastes send them to Subtitle D industrial 
landfills. The commenter did not provide any information to support 
modeling municipal landfills, as an alternative. Therefore, we continue 
to believe that modeling industrial landfills is an acceptable 
approach.
    The same trade association also raised several issues concerning 
our interpretation and aggregation of waste volumes and our 
interpretation of waste management information provided by survey 
respondents, which they argue contributed to overestimating waste 
volumes and risks. (The commenter also raised a number of concerns 
regarding the statistical design of the survey and resulting data 
analysis which are discussed separately in the following section.) The 
first point the commenter raised was that two facilities inadvertently 
reported inaccurate waste volumes in the survey. Only one of these 
involved a solid waste stream; the facility submitted revised 
information which reduced the amount of nonhazardous wastewater 
treatment sludge sent to a landfill from 500 to 250 tons per year. We 
have made this correction and used the new waste volume in our revised 
risk analysis.
    The same commenter claimed that we incorrectly estimated the waste 
volumes for one facility that reported two of the largest solid waste 
streams for emission control dust and off specification product. In 
order to convert waste amounts into volumes for input into the risk 
assessment models, we asked 3007 survey respondents to provide 
information on the amount of each waste stream they generate by weight 
in metric tons as well as the density of each waste stream. We used the 
density information to convert the weight of each waste stream into 
gallons. The commenter claimed that the two waste streams in question 
are from the production of powder coatings and have a low density of 
three to four pounds per gallon. The commenter argued that we used the 
wrong waste densities and, therefore, overestimated volumes of emission 
control dust and off specification paint from this facility. We have 
reviewed the data supplied by the facility in question and find that 
they supplied a density of three pounds per gallon for each of these 
two waste streams, which were the densities used in calculating their 
waste volumes. Therefore, we did not overestimate the volume of these 
waste streams.
    The same commenter also argued that combining waste volumes for the 
four solid waste streams in the risk assessment artificially and 
arbitrarily inflated the risks associated with the wastes. Rather, they 
stated that EPA should have modeled the volumes for each waste stream 
separately. The commenter contended that manufacturing sites would 
handle each waste stream separately and likely dispose of them 
separately. Further, the commenter claims that we did not meet our 
obligation with regard to the scope of the listing determination by 
combining the solid waste streams, rather than assessing the risks of 
each separately. We disagree with this contention. We combined in one 
risk assessment only those waste volumes for different solid waste 
streams that were reported in the 3007 survey being sent to municipal 
or industrial nonhazardous Subtitle D landfills. Each waste stream 
reported separately as going to a unique facility was considered as a 
separate waste volume in the distribution used in the risk assessment. 
We only added together waste volumes that were actually sent to the 
same physical location and type of waste management unit.
    In addition, a number of facilities reported that they collect and 
store different types of waste solids (or waste liquids) in the same 
containers, as they are generated from a batch production process, and 
then dispose of all the waste in a single waste management unit. 
Whether managed and transported separately by a paint manufacturer or 
combined before transport to a disposal facility, the vast majority of 
nonhazardous waste solids are managed in nonhazardous landfills, 
including 99 percent of emission control dust; 97 percent of wastewater 
treatment sludge; 86 percent of wash water sludge and 56 percent of off 
specification paint. We believe combining waste distributions from all 
these solid waste streams is appropriate, because it is a more accurate 
representation of the waste management practices reported in the survey 
and of the potential risks. It would only be appropriate to model each 
solid waste stream separately if each waste stream was being sent to a 
distinctive type of waste management practice, or if the waste 
characteristics for individual paint manufacturing solid waste streams 
are unique.
    The commenter also argued that we arbitrarily used the risk 
assessment results from modeling emission control dust as the proposed 
listing

[[Page 16272]]

concentration levels because the concentrations were lower. We modeled 
emission control dust waste volumes separately to examine the potential 
risk from air releases from landfills, i.e., we assumed low moisture 
content in the emission control dust wastes and assessed risks from 
wind-blown releases. Our modeling showed that these low moisture wastes 
did not pose any significant risks via air releases; thus both the dust 
and combined solids results are driven by the groundwater pathway. In 
the proposal, we suggested using the listing levels for the dusts 
because the levels were slightly lower.
    The differences in the proposed listing levels for dusts and 
combined solids were relatively small (combined solids levels were 
higher by about a factor of 1.5 for the constituents of concern). The 
slightly lower levels derived from the dust scenario are a result of 
the volume distribution for dust waste volumes. This is due to the fact 
that the individual emission control dust waste volumes generated from 
paint manufacturing tended to be larger. In the combined solids waste 
volumes, many reported sludge or off-specification paint waste volumes 
that were quite small. Therefore, even though the total volume of 
wastes for combined solids was higher, the dust volumes yielded 
somewhat lower listing levels.
    As discussed above, modeling combined waste solids is an accurate 
representation of waste management practices reported in the 3007 
survey and the most accurate representation of ground water risks 
associated with this disposal practice. Therefore, we conclude that 
listing levels for waste solids would more appropriately be derived 
from the combined solids modeling. As noted above, we found that many 
generators tended to combine waste solids for disposal and that the 
vast majority of waste solids are disposed of in nonhazardous 
landfills. Thus, it is plausible to consider the combined solids as a 
class of waste for potential listing and combined solids results are 
more representative of the waste category we proposed to list. However, 
as noted previously, we are not finalizing a listing for this category 
because we believe that the risks from waste solids do not warrant 
listing.
    The same industry trade association also argued that we should not 
have modeled emission control dust in the combined solids assessment 
because the only constituent that would be a basis for listing emission 
control dust is antimony. They contend that we should not have modeled 
organic constituents in emission control dust because there is not a 
high incidence of emission control dust residual containing organic 
materials. The commenter noted that only one surveyed facility reported 
any of the proposed organic constituents of concern. That facility 
inaccurately reported methyl isobutyl ketone (MIBK) in their dust. The 
facility later submitted revised information to indicate that their 
dusts do not contain MIBK. As explained above, MIBK was eliminated from 
consideration as a listing constituent after correcting an error in the 
shower model.
    However, we continue to believe our rationale is appropriate for 
modeling all of the potential constituents of concern in all waste 
streams for several reasons. First, we note that 32 surveyed facilities 
identified potential constituents of concern in their nonhazardous 
emission control dusts, including constituents such as cobalt, copper, 
barium, zinc, cadmium and chromium in addition to antimony. This also 
includes five different facilities reporting a total of eleven 
different organic constituents in their emission control dusts. In 
addition, we identified potential constituents of concern that are 
widely used raw materials in paint production, based on the available 
literature. The process for selecting these constituents is detailed in 
the proposal (pp. 10083--10087). Generally, these constituents are 
likely to occur in a number of different waste streams. We recognize 
that it is possible that a given constituent could occur in some solid 
waste streams and not in others, or at substantially different 
concentration levels. However, we did not have information available to 
indicate whether there were some constituents that would never occur in 
particular waste streams. We believe that modeling all constituents of 
concern for all similarly managed waste streams is a conservative 
approach to identify those that potentially pose unacceptable risk. In 
addition, under a concentration-based listing approach, if the 
constituents do not occur in one solid waste stream, like emission 
control dust, that waste stream could be managed separately as 
nonhazardous waste, provided the generator meets the applicable 
implementation requirements, e.g. certification that the waste does not 
contain the listing constituents.
    This comment raises the broader question of whether the 
constituents of concern are likely to occur in the waste. We agree that 
this is a key question in making the listing determination. In addition 
to risk assessment results, there are a number of additional factors 
that we considered in making the listing determination. These are 
discussed below in section IV.B. 5 as the basis for our final 
determination not to list paint production waste solids as hazardous 
waste.
    In summary, the 3007 survey provided us with a realistic picture of 
the types of wastes that are generated, waste volumes, and management 
practices being used. Our initial interpretation of the survey data, 
based on the information supplied to us by survey respondents, was 
accurate. While the commenter did identify several survey responses 
that facilities changed after the proposal was issued, the commenter 
did not present any information to support the contention that we used 
the data inappropriately. For purposes of refining our risk assessment, 
we changed the amount of wastewater treatment sludge for one facility 
from 500 tons to 250 tons, based on new data the facility provided. In 
addition, we agree that listing levels for constituents of concern 
should be based on the analysis results for combined solids waste 
volume distributions rather than for emission control dust alone. 
Therefore, the discussion below regarding potential regulatory 
concentration levels for the constituents of concern is based on levels 
for the combined solids.
4. Statistical Design and Analysis of the RCRA Section 3007 Survey Data 
for Estimating Waste Quantities
    One industry trade association raised the following key issues 
concerning the statistical design and analysis of the RCRA section 3007 
survey: (1) Whether use of the Dun and Bradstreet database to identify 
paint manufacturers to categorize facilities for the stratified random 
sample was appropriate; (2) whether mischaracterization of facilities 
in the stratified random sample led to overestimates of waste 
quantities; and (3) whether direct extrapolation from the sampling 
population to the universe of paint manufacturers led to overestimates 
of waste quantities.
    Following review and consideration of these comments, and following 
the accepted statistical practice of post-survey refinement of the 
stratification of surveyed facilities, we adjusted the facility 
stratification approach and adjusted the statistical weighting 
procedure to make the sample distribution more representative of the 
entire paint manufacturing population. These adjustments improve our 
extrapolation from survey data to the paint universe and, hence, 
improve our estimates of waste quantity.
    Summarized below are the major comments, our responses, and further 
statistical refinements we performed to

[[Page 16273]]

address the commenter's issues. In the following subsections, we 
discuss: (1) the database used for developing the survey; (2) the 
important aspects of the original sampling framework design criticized 
by some commenters; (3) the key statistical issues raised by the 
commenters and our efforts to refine the facility stratification and 
weighting scheme in response to comments; (4) the post-survey 
adjustments of statistical weights to improve data extrapolation; and, 
(5) our use of adjusted weights for the final risk assessment.
a. Use of the Dun and Bradstreet Database
    As explained in the proposed rule (at 66 FR 10070), we used the Dun 
and Bradstreet database for developing our survey scheme because it 
provided the most thorough listing of paint manufacturers in the United 
States. Specifically, we used the following information contained in 
the Dun and Bradstreet database for developing the survey scheme: 
facility names and addresses, contact names and telephone numbers, 
annual sales volume data, and SIC codes for the types of paint or 
paint-related products manufactured. One commenter argued that EPA 
arbitrarily relied on outdated and unverified commercial corporate 
information instead of actual facility specific information. However, 
the commenter did not describe in their comments any alternative source 
of ``actual facility specific information'' readily available to us 
before conducting the survey. Nor did they identify an alternative 
source when directly asked.
    Our only alternative to relying on this existing database would 
have been to collect the pre-survey information of interest (e.g., 
facility size, paint types, etc.) from the entire universe of paint 
manufacturers for sample frame design and stratification. In light of 
the large number of potential paint manufacturers (1,764 listed under 
SIC Code 2851 in the July 1999 Dun and Bradstreet database), this was 
impractical. Under the Paperwork Reduction Act, Federal agencies are 
required to submit an Information Collection Request (ICR) to and 
receive approval from the Office of Management and Budget (OMB) prior 
to collecting substantially similar information from ten or more 
respondents in any 12-month period. Collecting pre-survey information 
would have required separate ICR approval and additional time to gather 
the information; but such time was not available to us under the 
consent decree. In the absence of ``actual facility specific 
information'' or pre-survey information of interest for all the 
facilities in the paint manufacturing facilities universe, we believe 
the Dun and Bradstreet database provided the best source of information 
for our survey, and we are continuing to use this database for the 
final determination today.
b. Original Statistical Design and Analysis of the RCRA Section 3007 
Survey
    For our RCRA Section 3007 survey of paint manufacturers (see 66 FR 
10069--10072 on how the Agency designed the statistical, stratified 
random-sampling survey), we derived a sampling population of 884 
facilities from the Dun and Bradstreet database purchased in July 
1999.\10\ This database contained a total of 1,764 facilities 
identified under SIC Code 2851. Discussed below are some aspects of our 
sample frame design and stratification that were criticized by some 
commenters.
---------------------------------------------------------------------------

    \10\ The July 1999 Dun and Bradstreet database we initially 
purchased for preliminary analysis contained no sales volume data. 
In December 1999, we purchased another version containing sales 
volume data as a supplement for sampling stratification.
---------------------------------------------------------------------------

    We first screened the July 1999 database and removed the 880 
facilities that fell into one of the following categories: apparent 
non-paint manufacturers, duplicates, no longer in the December 1999 
database, outside of the scope of this listing determination, or found 
impossible to fully classify for facility stratification. We then 
classified the remaining 884 facilities into 12 strata based on three 
categorization criteria: paint types (architectural/special purpose, 
and OEM), sales volume (less than five million, five to twenty million, 
and greater than twenty million), and TRI status (whether the facility 
reported under TRI in 1997). The strata were intended to group those 
facilities we believed would have somewhat similar characteristics, for 
example, similar waste amounts and types of waste generated and similar 
waste management practices.
    The sales volume data in the Dun and Bradstreet database contained 
a number of ``zero'' entries for a significant number of facilities. It 
was possible that some facilities did not sell any paints during the 
reporting period, or did not report their sales volume, or reported 
zero sales for other reasons. However, for the reasons discussed above, 
it was impracticable for us to contact every individual facility shown 
with a zero or missing sales volume. Because most facilities in the 
paint industry are relatively small, we believe it was reasonable to 
have classified those facilities with zero sales as ``small.''
    Of the 880 facilities removed, 705 had insufficient information on 
the type of paint products manufactured to be fully classified into the 
various strata. Thus, we excluded the 705 entries from the sampling 
frame to increase the chances of obtaining useful data (e.g., waste 
management practices by in-scope paint manufacturers) for this listing 
determination. Nevertheless, these 705 facilities were still assumed to 
be represented by the sampling population of 884 facilities and thus 
were not excluded from the evaluation of paint manufacturing wastes. To 
relate the data collected from the surveyed facilities to the entire 
paint universe including the 705, we extrapolated statistically by 
using the percentages of facilities in the Dun and Bradstreet database 
that are represented by the surveyed facilities (66 FR 10072).
    We applied a statistical weighting and bias correction procedure to 
produce unbiased estimates from our survey data. This was necessary 
because we had sampling rates that were not proportional to the 
facility population sizes within each strata. We then used the 
extrapolated waste quantity estimates for characterizing the entire 
paint manufacturers' universe, and for our economic impact analysis and 
waste treatment and management capacity analyses. For risk modeling 
purposes, we estimated a national waste quantity distribution for the 
884 facilities included in the sampling frame. For the purposes of the 
risk assessment, we assumed the 884 facilities were proportionally the 
same as the 705 facilities.\11\ Since the risk assessment would not be 
impacted by the number of facilities but only by the shape and nature 
of the distribution, this proportional handling of the 705 facilities 
had no impact on the results of the risk assessment.
---------------------------------------------------------------------------

    \11\ We assumed that the 705 facilities could be stratified in 
the same manner as the 884 facilities, such that both groups of 
facilities would have the same distribution of statistical weights 
and associated waste quantities, characteristics and management 
practices. In other words, the same distributions of waste stream 
data and waste volume percentiles could be developed from both sets 
for risk assessment.
---------------------------------------------------------------------------

    One commenter argued that most paint manufacturing sites use the 
same equipment, same pollution control devices, have similar formulas 
and have similar manufacturing processes. Therefore, the commenter 
argued that EPA should have used a realistic, simpler extrapolation 
tool such as pound or gallon of waste per gallon of product produced. 
However, the commenter did not provide any specifics or necessary 
information on

[[Page 16274]]

how to apply its suggested approach. Therefore, we could not evaluate 
this approach. In addition, from our survey we learned that 
approximately 27% of paint manufacturers did not generate or dispose of 
any of the waste residuals of interest because they recycled or reused 
all paint residuals as feedstock in the manufacturing processes. Using 
the commenter's suggested ``simpler'' approach would flatly discount 
this 100% reuse/recycling scenario resulting in an overestimation of 
waste quantities and an inaccurate account of waste quantity 
distributions.
c. Commenter's Issues Concerning Incorrect Statistical Weights for 
Survey Responses Used To Calculate Waste Quantities
    One commenter objected to our use of the statistical weights 
resulting from the sampling stratification to characterize the 
industry's waste quantities. This commenter also stated that EPA's 
weighting factors resulting from the sampling stratification were 
arbitrary and resulted in an overstatement of the total waste generated 
by the industry. In particular, this commenter argued that EPA used 
information from the survey to characterize the 705 facilities that 
could not be stratified for the survey. The commenter contended that 
this improper use of unverified data very likely mischaracterized the 
universe of paint manufacturers and led to an overestimation of waste 
quantities.
    This commenter further argued that the Agency mischaracterized some 
large facilities as small and some TRI facilities as non-TRI 
facilities, and that those facilities were assigned incorrect weighting 
factors. The commenter cited specific errors in EPA's facility 
categorization and the weighting factors assigned to four facilities 
generating large waste quantities, indicating that the waste quantity 
distributions used for our risk assessment of waste solids were 
improperly driven by the incorrect weighting factors for the cited 
facilities. Two of the cited facilities (survey respondents) also 
submitted comments in support of this argument. One pointed out that 
EPA miscategorized its facility as small with sales less than $5 
million based on the Dun and Bradstreet database when their 1998 sales 
volume was actually $109.1 million; the other commenter similarly said 
that its 1998 sales were actually $30 million, not the $7 million 
reported in the Dun and Bradstreet database. The first commenter stated 
that the weights for such miscategorized facilities should be corrected 
by moving these facilities to the correct strata. We do not agree with 
the commenter in this respect, as discussed below. But, we do accept 
the commenter's information as to the two miscategorized facilities as 
correct.
    In response to the comment that the 705 facilities should have been 
included in the sampling frame, we did not include them in the sampling 
population for two key reasons. First, we could not distinguish paint 
and coatings manufacturers from manufacturers of products outside the 
scope of the listing determination. Second, we could not distinguish 
architectural/special purpose paints from original equipment 
manufacturing (OEM) paint types, and believed that this could be 
significant (based on survey data, we later decided not to distinguish 
between these).
    In the Dun and Bradstreet database used to establish our 
stratification scheme, the 705 facilities were listed under a general 
Dun and Bradstreet SIC code, 2851 0000,\12\ for undefined paint and 
allied paint products, some of which are not subject to this listing 
determination. In contrast, among the defined groups, we could 
distinguish between architectural/special purpose paint types (under 
code 2851 0100 through 0109) and OEM paint types (under code 2851 0200 
through 0213), and remove those not of concern (e.g., 2851 0104--paint 
driers; 2851 0300 through 0302--putty, wood fillers and sealers; 2851 
04 through 0403--removers and cleaners). Since there was a greater 
degree of uncertainty in the group of 705 undefined facilities (about 
whether they might be subject to this listing determination) than the 
defined groups, and since we could not stratify the 705 facilities into 
the desired architectural/special purpose and OEM categories, we 
decided not to sample them. Nevertheless, as already indicated, we did 
include the 705 facilities when extrapolating waste quantities for the 
entire paint universe. We did this by assuming that the characteristics 
of the 705 facilities were proportionate to the characteristics of the 
sampling population. We used these quantities to estimate the economic 
impact of the proposed rule on paint manufacturing and our waste 
treatment and management capacity analysis.
---------------------------------------------------------------------------

    \12\ Each entry in the Dun and Bradstreet database is identified 
by an 8-digit code, the first four being the same as SIC's and the 
next four being proprietary to Dun and Bradstreet that represent 
segregation of the paints, varnishes, lacquers, enamels, allied 
products, etc. in more detail. For example, code 2851 0000 refers to 
paints, varnishes, lacquers, enamels, and allied products; code 2851 
0100 refers to paint and paint additives; code 2851 0104 refers to 
paint driers; code 2851 0200 refers to lacquers, varnishes, enamels, 
and other coatings; code 2851 0208 refers to polyurethane coatings; 
code 2851 0300 refers to putty, wood fillers and sealers; code 2851 
0400 refers to removers and cleaners. For more details, see the 
Listing Background Document for Paint Manufacturing Listing 
Determination available in the public docket.
---------------------------------------------------------------------------

    Relative to the TRI status of certain facilities, we wish to 
clarify that the facilities classified in our TRI categories for the 
survey reflect those TRI generators that reported chemical releases in 
1997 to land-based waste management units (landfills, surface 
impoundments, waste piles, etc.) of concern to this listing 
determination. Consequently, some surveyed facilities that reported 
only non-land-based releases (e.g., air emissions, energy recovery) in 
1997 were not included in the TRI categories for survey sampling. 
Moreover, some facilities in the sampling population that might have 
reported TRI chemical releases to land-based management units in the 
years before and/or after 1997 were not included in the TRI categories 
either. Concerning the three facilities that one commenter argued 
should have been classified into TRI instead of non-TRI categories, 
they did not report any chemical releases to land-based management 
units in 1997. For this reason, we did not reclassify them into TRI 
categories.
    Next, the claim that the sampling or statistical weights resulting 
from the stratification are incorrect because some facilities were not 
classified into the appropriate strata reflects a misunderstanding of 
what weighting represents in probability sampling. The statistical 
weights assigned to facilities in the various sampling strata reflect 
or indicate the probability of a facility being sampled from the 
population in a stratum, depending on how the facilities were 
categorized for sample selection, not on their true status. For 
example, if 100 facilities were placed in one stratum and 10 facilities 
were randomly sampled, each sampled facility would have a weight of 10. 
Misclassification or miscategorization of some facilities does not make 
the weights incorrect. In particular, the two misclassified large 
facilities cited by the commenters may be representative of other large 
facilities potentially misclassified in the same manner. However, we 
recognize miscategorization could result in increased uncertainty 
because facility characteristics within the stratum, in this case waste 
generation rates, have a much broader range of values than anticipated. 
As such, the variability of estimates from survey data could be large. 
Our plan for post-survey adjustments to facility stratification and 
sampling weights, as described below, essentially treats the two large 
facilities that were misclassified in the ``small''

[[Page 16275]]

facility strata as representative of other large facilities that could 
have been similarly miscategorized in the same database. This approach 
reduces the variability of survey estimates.
    Although our stratified random-sampling survey was designed in a 
manner to ensure the best possible coverage, we acknowledged in the 
proposed rule (66 FR 10072) that, as in any other survey, there was 
uncertainty in our survey due to potential data source and sampling 
errors. Post-survey adjustment of sampling weights (i.e., re-weighting) 
to correct miscategorization and improve the certainty in the results 
involves a process called post-stratification and it is a common and 
appropriate statistical practice to help reduce the uncertainty 
associated with estimates from the sampling survey. There are well 
known statistical techniques (e.g., Cochran, W.G. 1977 \13\) that can 
be used for post-stratification and are widely employed in U.S. 
national surveys. Therefore, we developed post-survey adjustments to 
the survey weights to address the issues raised by the commenter 
concerning the miscategorization of facilities and the inappropriate 
extrapolation to the additional 705 facilities that were not included 
in the sampling population. We did not simply reclassify the strata of 
the two miscategorized facilities (due to incorrect sales volume 
information in the Dun and Bradstreet database) identified by the 
commenters. Their strata status cannot be simply changed by moving them 
into another stratum because that would violate the underlying 
probability structure of the survey. Some other surveyed facilities may 
be similarly mischaracterized in the same database, especially in 
regards to the facilities that had zero sales or missing data listed in 
the Dun and Bradstreet database. Unless accurate sales data can also be 
obtained for all the other facilities in the target population, it is 
inappropriate to just partially reclassify the two facilities with 
verified data.
---------------------------------------------------------------------------

    \13\ Cochran, W.G. 1977. Sampling Techniques, 3rd edition, John 
Wiley & Sons, New York, 428 pp.
---------------------------------------------------------------------------

d. Post-Survey Adjustments to Weights
    As explained above and in more detail in ``Addendum to the Risk 
Assessment Technical Background Document for the Paint and Coatings 
Hazardous Waste Listing Determination'' available in the public docket, 
we performed post-survey stratification (or post-stratification) and 
re-weighting to improve our extrapolation from the survey data to the 
705 facilities, and to make the sample distribution more representative 
of the sampling population of 884 facilities and the universe of paint 
manufacturers. We did this by using the following steps:
    (i) Post-stratify the ``small'' facility categories based on the 
``number of employees'' data in the Dun and Bradstreet database.
    (ii) Adjust statistical weights to compensate for the seven 
facilities that did not respond to the survey.
    (iii) Collapse two sets of statistical weights resulting from the 
two rounds of sampling.
    (iv) Examine the list of 705 facilities previously excluded from 
the sampling stratification, and include potentially in-scope paint 
manufacturers for the development of statistical weights for the paint 
universe.
    We discuss these steps in more detail below.

Post-Stratify the ``Small'' Facility Categories Based on the ``Number 
of Employees'' Data in the Dun and Bradstreet Database

    We reexamined the Dun and Bradstreet database used to assess 
whether the Agency mischaracterized some surveyed facilities. We found 
that the two facilities cited by the commenters (as miscategorized 
``small'') had zero sales; one facility had 300 employees and the other 
facility had 125 employees in the Dun and Bradstreet database. 
Moreover, we found numerous zero sales figures in the database. Based 
on our analyses, many of these zero sales figures were aggregated and 
reported under a corporate or headquarters office such that sales 
volume figures for their multiple individual facilities showed zero. 
For instance, thirteen facilities with the same company name but 
different addresses and different facility identification numbers 
carried the same headquarters identification number; one of these 
facilities had a large sales volume while twelve had zero sales volume. 
We interpret this scenario as the headquarters reporting the aggregated 
sales volume under the headquarters address. For the other zero sales 
figures, we surmise they could be due to a variety of reasons: There 
were no sales in the reporting period, sales data were not released to 
Dun and Bradstreet; or there were reporting or entry errors in the 
database. All the facilities with zero sales in the sampling population 
were in the ``small'' categories (i.e., Small, non-TRI, SIC 2851-01; 
Small, non-TRI, SIC 2851-02; Small, TRI, SIC 2851-01; Small, TRI, SIC 
2851-02), with the majority in the two ``Small, non-TRI'' strata. Based 
on this, we decided to use the ``number of employees'' data for post-
stratification of the facilities originally classified in the ``Small, 
non-TRI'' categories since employee data in the database were 
essentially complete and would offer a reasonable measure of facility 
size (for more detail see ``Addendum to the Risk Assessment Technical 
Background Document for the Paint and Coatings Hazardous Waste Listing 
Determination'' which is available in the docket for today's final 
determination).
    On the other hand, we maintained the ``Large'' and ``Medium'' 
categories as originally stratified as there is no compelling reason to 
discount the sales volume data for those large and medium facilities.

Adjust Statistical Weights To Compensate for the Seven Facilities That 
Did Not Respond to the Survey

    Out of the 299 facilities surveyed, seven facilities did not 
respond to the questionnaires. Using survey data from the respondents 
inevitably caused some bias, though insignificant in this case, in data 
extrapolation to the sampling population of 884 facilities (and in turn 
to the paint universe). That is, without accounting for the seven 
nonresponding facilities, the total waste generation might have been 
slightly underestimated. None of the commenters raised this issue. We, 
nevertheless, took this step to improve the statistical validity of our 
methodology. We adjusted the statistical weights to compensate for the 
nonresponse among the six surveyed facilities that we were able to 
contact. These were determined to be eligible for the survey because 
they were in business in 1998. (Eligibility only refers to whether the 
facility was in business and could respond to the survey, not whether 
the facility was a paint manufacturer.) This allows the respondents to 
represent the nonrespondents.

Collapse Two Sets of Statistical Weights Resulting From the Two Rounds 
of Sampling

    As described in the listing background document available in the 
public docket for the proposed rule, the Agency conducted two rounds of 
sampling in February and March 2000. That is, we initially sent out 
questionnaires to 250 facilities, after which we discovered that only 
facilities located in States from Alabama through Ohio (alphabetically) 
were sampled. In order to correct this error, we sent out additional 
questionnaires to 49 facilities located in states after Ohio

[[Page 16276]]

(alphabetically), which were randomly selected using the same 
statistical methodology. This resulted in two sets of facilities with 
differing sampling weights. While using the two sets of weights for 
population extrapolation was statistically valid, we decided to 
collapse the ``through Ohio'' stratum with the ``after Ohio'' stratum 
to reduce sampling variances and unequal weighting effects. We believe 
that the alphabetical position of the states within strata bears no 
relationship to the survey outcomes, and thus collapsing the ``through 
Ohio'' stratum with the ``after Ohio'' stratum would not introduce 
bias. As demonstrated in the ``Addendum to the Risk Assessment 
Technical Background Document for the Paint and Coatings Hazardous 
Waste Listing Determination'' available in the public docket, 
collapsing the two sets of weights reduced the variability in the 
sampling weights and improved the precision of the survey estimates.

Examine the List of 705 Facilities Previously Excluded From the 
Sampling Stratification, and Include Potentially In-Scope Paint 
Manufacturers for the Development of Statistical Weights for the Paint 
Universe

    To address the comment that the Agency improperly assumed that the 
facilities in the sampling population of 884 facilities were 
representative of those in the group of 705 undefined facilities 
previously excluded from the sampling stratification, we reexamined the 
Dun and Bradstreet database to determine which of the 705 previously 
excluded facilities also could be in-scope paint manufacturers. We 
eliminated 45 duplicates and added the remaining 660 possible in-scope 
paint manufacturers to the sampling population of 884 to become the 
full list of 1,544 facilities (hereafter referred to as the full target 
population) potentially subject to the listing. We included these 660 
possible in-scope facilities in our post-survey analyses, for 
comparison of the results based on the full target population with 
those based on the sampling population (i.e., assessing the impact of 
analysis with or without including the 660 facilities). However, we 
note that we still could not tell which and how many of these 660 
facilities might be associated with the paint types of interest to this 
listing determination, and thus the uncertainty in the group of 705 
undefined facilities persists and carries over to the full target 
population of 1,544 facilities.
    Moreover, as discussed above, we could not distinguish the types of 
paint production for the group of 660 undefined facilities to classify 
them into architectural/special purpose and OEM categories. By the same 
token, after combining the 660 and 884 facilities into the full target 
population of 1,544 facilities, we could no longer stratify all the 
facilities into architectural/special purpose and OEM categories. Since 
paint type was not a relevant factor in our analyses (i.e., from the 
survey we found no significant difference between the two types of 
paint production in terms of waste types and amounts generated, waste 
characteristics and constituents, and waste management practices), this 
did not affect the validity of the categorization.
    Taking steps (i) to (iii), as outlined in IV.B.4.d, we developed 
post-strata and adjusted weights for the sampling population of 884 
facilities. Likewise, taking steps (i) to (iv), as outlined in 
IV.B.4.d, we developed another set of post-strata and adjusted weights 
for the paint universe using the target population of 1,544 facilities.
    As a result of the aforementioned post-stratification and re-
weighting, the statistical weighting factors assigned to the surveyed 
facilities changed somewhat, as expected. Details about post-
stratification and re-weighting, and the statistical techniques used, 
may be found in ``Addendum to the Risk Assessment Technical Background 
Document for the Paint and Coatings Hazardous Waste Listing 
Determination'' available in the public docket.
e. Adjusted Statistical Analyses of RCRA Section 3007 Survey Data
    We conducted three adjusted statistical analyses to derive the 
waste quantity distributions as inputs to the risk modeling, including:

--One bounding analysis, using the revised weights suggested by one 
commenter for the two facilities miscategorized as small, without 
making any other weight adjustments;
--One analysis using adjusted weights for the sampling population of 
884 facilities per post-survey adjustment and re-weighting (but not the 
two revised weights suggested by the commenter); and
--One analysis using adjusted weights for the entire paint universe per 
post-survey adjustment and re-weighting (but not the two revised 
weights suggested by the commenter).

    To assess the impact of changing weights for the two facilities 
mischaracterized as small, we initially conducted a bounding analysis 
using the revised weights (one changed from 4.0476 to 1, and the other 
from 7.6154 to 1) suggested by one commenter. We note that these two 
facilities generated relatively higher quantities of nonhazardous waste 
solids among the various quantities modeled for the landfill disposal 
scenario. Changing their statistical weights would affect the waste 
quantity distributions and could conceivably result in somewhat 
different risk assessment results. As we noted above, we consider 
simply changing these two weights to be statistically incorrect. 
Nevertheless, we conducted this bounding analysis for two key target 
constituents, acrylamide and antimony. The results indicate that the 
changes made to the waste quantity distributions do not appear to have 
a significant impact on the proposed listing levels for waste solids, 
i.e., making these changes would increase the listing levels by about a 
factor of 1.7 for the two constituents (see Table IV.B-3).
    Using the corrected waste solid quantity (as discussed above in 
section IV.B.2), as well as the adjusted statistical weights for both 
the sampling population of 884 and the full target population of 1,544 
facilities, resulted in a modified distribution of nonhazardous waste 
solids going to nonhazardous landfills. We note that adjusting the 
weights did not change the distribution significantly. Specifically, 
the percentile \14\ quantities from the resulting waste quantity 
distributions, which generally represent the characteristics of the 
paint universe's nonhazardous waste solids that are landfilled, 
essentially remain as originally estimated with slight variations. We 
realize that there is a greater degree of uncertainty in the adjusted 
weights and statistical analysis for the full target population of 
1,544 facilities than the sampling population of 884 facilities, 
because it is likely that more of the 660 (out of 705) facilities are 
producing products outside the scope of the rulemaking. Therefore, we 
maintain our conclusion that the waste quantity distributions (whether 
adjusted or not) for the sampling population of 884 facilities should 
be more representative of the paint universe than those for the full 
target population of 1,544 facilities. As such, we performed an 
adjusted statistical analysis of nonhazardous waste solids going to 
nonhazardous landfills for the sampling population of 884 facilities. 
Nonetheless, we also performed a similar adjusted statistical analysis 
for the full target population of 1,544 facilities for comparison. The 
final

[[Page 16277]]

results revealed that neither of these two adjusted statistical 
analyses would significantly impact the risk assessment results.
---------------------------------------------------------------------------

    \14\ A percentile of a distribution represents a value below 
which a specified percentage of the data lie. For example, the 50th 
percentile is the value that 50% of the data lie below.
---------------------------------------------------------------------------

    Results of the final risk assessment using revised/adjusted 
statistical weights in conjunction with a correction to the shower 
model inhalation exposure for non-carcinogens (addressed in section 
IV.B.4) are summarized in Table IV.B-3. For details, see ``Addendum to 
the Risk Assessment Technical Background Document for the Paint and 
Coatings Hazardous Waste Listing Determination'' available in the 
public docket.

                  Table IV.B-3--Risk Concentration Levels for Combined Waste Solids (mg/Kg) \1\
----------------------------------------------------------------------------------------------------------------
                                    Original level
                                    from proposal                         Level resulting      Level resulting
                                     (*indicates      Level resulting      from adjusted        from adjusted
     Constituent of concern         correction for     from bounding    weights--population  weights--Population
                                     shower model       analysis \2\     of 884 facilities   of 1,544 facilities
                                        error)
----------------------------------------------------------------------------------------------------------------
Acrylamide......................                470                810                 370                  250
Acrylonitrile...................            * [440]   \3\ Not analyzed                 340                  220
Antimony........................              3,200              5,300               2,600               1,700
----------------------------------------------------------------------------------------------------------------
\1\ Revised results from adjusted weights also reflect the corrections for error in the shower model.
\2\ Moving two misclassified facilities per comments.
\3\ It was already known that an error in the shower model would increase this level.

    In summary, considering the uncertainties involved, the originally 
designed stratified sampling scheme was statistically valid and thus 
did not mischaracterize the paint universe. However, we agree with the 
commenters that the two facilities miscategorized as ``small'' due to 
incorrect sales volume information in the database should have been 
placed in other categories. Since accurate sales data could not be 
obtained for some other surveyed facilities that may be similarly 
mischaracterized in the same database, we did not partially reclassify 
the strata of those two miscategorized facilities because that would 
violate the underlying probability structure of the survey. This 
mischaracterization resulted in a greater degree of uncertainty in 
extrapolation from the survey data and estimation of waste quantities 
due to higher variability in the ``small'' facility categories than we 
thought. Nevertheless, we performed post-survey adjustments to the 
statistical weights in an attempt to improve data extrapolation, 
particularly post-stratification of ``small'' facility categories and 
incorporation of the 660 possible in-scope facilities resulting from 
the examination of the 705 previously excluded facilities. While the 
overall adjustments improved data extrapolation and waste quantity 
estimates, incorporation of the 660 facilities (into the 884 original 
sampling population to become a target population of 1,544 facilities) 
contributed to additional uncertainty in the adjusted weights because 
it is likely that more of the 660 facilities are out of the scope of 
the listing than in the original sampling population of 884 facilities. 
We, therefore, maintain our conclusion that the waste quantity 
distributions for the sampling population of 884 facilities are more 
representative of the paint universe than those for the full target 
population of 1,544 facilities. Using the adjusted weights for the 
sampling population of 884 facilities and the corrected waste solid 
quantity in response to comments, the final risk assessment for 
combined waste solids resulted in decreased risk concentration levels 
for three constituents of concern by about a factor of 1.3. Even at 
these lower levels, we do not believe listing paint waste solids is 
warranted; see detailed discussions in sections IV.B.5 and IV.B.6 
below.
5. Concentration Levels for the Key Constituents of Concern and the 
Likelihood That They Occur in Wastes
    As noted above, correcting for an error in the modeling causes two 
of the five constituents of concern (methyl isobutyl ketone and methyl 
methacrylate) to drop from further consideration, because the projected 
risk-based waste concentrations indicate these chemicals would not 
present risks of concern in paint waste solids. Three potential 
constituents of concern remained: acrylamide, acrylonitrile, and 
antimony. We carefully considered the comments submitted and all the 
information available to us on the potential for these constituents to 
be present in paint waste solids at levels of concern. We conclude that 
the available information does not indicate that any of these 
constituents provide a sufficient basis for listing paint waste solids. 
Below we describe the key information we used to reach a final listing 
determination. We discuss the organic monomers acrylamide and 
acrylonitrile together because the issues for the two organic chemicals 
are closely related and somewhat different from the issues for 
antimony.

Acrylamide and Acrylonitrile

    We proposed listing levels for acrylamide and acrylonitrile based 
on the limited data we collected in our survey of generators and other 
information indicating that polymers derived from acrylamide and 
acrylonitrile are used in paint manufacturing. Acrylamide and 
acrylonitrile are monomers, i.e., low molecular weight chemicals that 
serve as building blocks to form larger molecular weight polymers that 
are used as binders in paints. We were concerned about the unreacted 
monomers in the binders, not the polymers, due to the known toxicity of 
the monomer forms.
    Information provided by facilities in the 3007 Survey indicated 
that some manufacturers reported the presence of acrylamide or 
acrylonitrile derived polymers in wastes. However, the survey showed 
that these chemicals were reported relatively infrequently. Out of the 
151 facilities that reported generating paint manufacturing wastes, 
three reported acrylamide polymers in paint waste solids (off 
specification paint or sludges); all such wastes were sent to 
incinerators. Six facilities reported acrylonitrile polymers in paint 
waste solids (off specification paint and sludges); for these six 
facilities, two reported sending their wastes to landfills, while the 
remainder sent their wastes to incinerators. The 3007 survey did not 
provide any useful data for monomer levels in these wastes for two 
reasons. First, submission of concentration information was voluntary, 
and second, the survey required facilities to note the presence of 
these constituents as the monomer and associated polymer (e.g., 
acrylamide and acrylamide derived polymers) under one combined 
category. Thus, we

[[Page 16278]]

believe that the limited information on constituent concentrations only 
provides information on the prevalence of the associated polymer forms, 
and does not provide any useful information on monomer levels.
    We discussed the potential levels of acrylonitrile in paint binders 
and paint products in the proposed rule (see 66 FR10106-10107). This 
discussion was related to the possible levels of acrylonitrile in 
liquid paint wastes. However, this approach leads to an estimate of 
monomer levels in paint products, which is useful for an examination of 
monomer levels in waste solids. For the proposal, we cited a reference 
that estimated a likely concentration of acrylonitrile in paint of 
approximately 30-50 ppm. This was based on a maximum concentration of 
100 ppm acrylonitrile in the polymer binder, and a fraction of binder 
in paint formulations of 30-50%.\15\ To estimate a possible upper 
bound, we also used Material Safety Data Sheets (MSDS) for acrylic 
paint binders, which indicated that acrylonitrile was present in trace 
amounts. The sheets did not report acrylonitrile levels, but showed 
levels of 500 ppm and 1000 ppm for the monomers from all the acrylic 
polymer sources in the binders. Thus, assuming a paint formulation 
would contain up to 50% binder, we calculated an upper bound of about 
500 ppm acrylonitrile in paint.
---------------------------------------------------------------------------

    \15\ See the docket for the memo from Paul Denault, Dynamac 
Corporation, to David Carver and Cate Jenkins, EPA, dated September 
6, 2000.
---------------------------------------------------------------------------

    The same reference we cited in the proposal for acrylonitrile also 
estimated a likely concentration range for acrylamide in paint 
binders.\16\ The reference noted that acrylamide is less widely used 
than acrylonitrile monomer in paint formulations. With very limited 
data, the reference estimated 5 ppm acrylamide monomer in paint, based 
on a maximum binder concentration of approximately 20 ppm, and assuming 
the acrylamide containing polymer makes up to 25 wt.% of the 
formulation.
---------------------------------------------------------------------------

    \16\ ibid.
---------------------------------------------------------------------------

    We received nine comments from industry and industry associations 
on the proposed constituents of concern and their concentration levels. 
All of the commenters raised the point that the constituents of concern 
would not be found in paint production wastes at the levels of concern. 
Commenters disputed our estimates for monomer levels, and stated that 
we overestimated the concentrations of acrylonitrile and acrylamide 
monomers likely to be in paint wastes. They noted that our survey 
combined monomer and associated polymers into one constituent category, 
so that when facilities noted the presence of the polymer (e.g., 
acrylamide derived polymers) in wastes, we incorrectly inferred that 
there are substantial monomer (e.g., acrylamide) residuals. They did 
not agree with our use of data from MSDS documents, pointing out that 
the 0.1% (1000 ppm) residual level specified on the MSDS is based on 
the Occupational Safety and Health Administration (OSHA) Hazard 
Communication standard that requires listing individual carcinogenic 
constituents if they are present at greater than 0.1% (see 29 CFR 
1910.1200(g)(2)(I)(C)). The commenters said that the MSDS merely 
indicates that the residual levels for any of the monomers present are 
less than the 1000 ppm to comply with the standard. The commenters 
stated that the manufacturer listed ``trace'' levels of acrylonitrile 
on the MSDS to comply with other reporting requirements (e.g., 
California Proposition 65).
    Commenters submitted information to support their contention that 
we overestimated possible monomer concentrations in paint wastes. One 
commenter submitted documentation on acrylonitrile levels from the same 
binder manufacturer that was the source of the MSDS documents we cited 
in the proposal. This documentation showed that acrylonitrile levels in 
binders are controlled to 10 ppm or less, which is well below the level 
of 1000 ppm we assumed. In addition, a polymer trade association 
submitted the results of a confidential survey that showed its members 
reported maximums of 10 to 25 ppm for acrylonitrile in paint binders.
    Commenters stated that acrylamide polymers are rarely used in paint 
binders. A polymer trade association survey of its members found one 
limited instance of an acrylamide polymer sold as a binder for use in 
paint formulations; this manufacturer reported a maximum acrylamide 
level of 25 ppm and that the product typically contains lower residual 
levels. Commenters indicated that, while acrylamide may also be used in 
cross linking other polymer binders, it has limited capacity for this 
unless first reacted with formaldehyde. This forms N-methylolacrylamide 
(NMA), which is less toxic.
    In response to these comments, we gathered additional information 
on the potential levels of acrylonitrile and acrylamide monomers in 
paint binders. We found one other MSDS that listed the presence of 
acrylonitrile in a paint binder. The information was similar to what we 
found in the MSDS information for the proposal, i.e., the MSDS listed 
0.05% (500 ppm) for all acrylic monomers present, and indicated the 
presence of a ``trace'' of acrylonitrile. Even assuming all of the 
monomer in the binder was acrylonitrile, the fraction of binder used in 
the paint product at issue (25%) would yield an upper bound of 125 ppm 
acrylonitrile. We also found one other reference to acrylonitrile 
levels of 50 to 90 ppm in acrylonitrile-butadiene copolymer emulsions; 
however, we could not determine if the polymer was used in paint 
formulations.\17\
---------------------------------------------------------------------------

    \17\ Barristel E., Bernardi A., Maestri P., Enzymatic 
decontamination of aqueous polymer emulsions containing 
acrylonitrile. Biotechnology Letters, 19, 131-134 (1997).
---------------------------------------------------------------------------

    We were able to find one MSDS that listed the presence of 
acrylamide in a paint binder (styrene-butadiene latex). This listed a 
level of 50 ppm acrylamide, and indicated that the level of the 
formaldehyde-derived form of acrylamide (NMA) was 100 ppm. Thus, it 
appears that NMA was used as a cross-linking agent and that residual 
acrylamide may arise from this use.\18\ The MSDS indicated that the 
fraction of binder used in the paint product was 26%, which means that 
the level of acrylamide in the paint would be 13 ppm.
---------------------------------------------------------------------------

    \18\ The MSDS also noted the total residual monomer content was  
0.5% (5000 ppm). This indicates that the acrylamide (less than 50 
ppm) makes up very little of the ``residual monomers'' in this 
product.
---------------------------------------------------------------------------

    After reviewing information from the proposal, evaluating the 
information provided in comments from industry, and considering the 
information on paint binders, we conclude that the concentrations of 
these monomers in waste are not likely to approach the listing levels. 
For acrylonitrile, our original estimate of up to 30-50 ppm of 
acrylonitrile in paint formulations is similar to information from 
industry and the limited data from MSDS documents. Similarly, the 
limited data we have indicate that the levels of acrylamide are not 
likely to approach the listing level. We agree with commenters that the 
use of acrylamide in binders appears to be relatively rare.
    Because the OSHA reporting for MSDS's only requires listing 
acrylamide or acrylonitrile if they are present at or above 1000 ppm, 
we cannot absolutely rule out that they might be present at levels 
approaching 1000 ppm in some binders. If we were to assume that 
acrylamide or acrylonitrile levels to be 1000 ppm in paint binders, and 
if the binder comprised 25% to 50% of a paint formulation, then the 
upper bound for

[[Page 16279]]

paint would be from 250 to 500 ppm. These concentrations would be in 
the range of the revised listing levels (e.g., the acrylamide and 
acrylonitrile levels are 370 and 340 ppm respectively for the revised 
results for the universe of 884 facilities in Table IV.B-3). However, 
we have no indication that such levels are realistic for paint 
formulations, nor do we have any information suggesting that paint 
manufacturing wastes would ever reach these levels. Furthermore, in the 
case of acrylamide, we found only three facilities that reported the 
presence of the polymer in their waste solids; all of which was sent to 
incineration. Similarly, only six facilities reported acrylonitrile 
polymer in waste solids. Therefore, the low prevalence of acrylamide 
and acrylonitrile polymers in paint waste solids also indicates that 
these chemicals are unlikely to present a significant risk in these 
wastes.
    We agree with commenters that our use of the 1000 ppm concentration 
of monomers in paint binders from the MSDS represents an implausible 
case; this assumed that all of the residual monomer would be the 
monomer of concern, and that the constituent would be present at the 
upper bound level (assumptions for which we have no factual support and 
are implausible based on the information in the record). These 
assumptions were appropriate for the purpose of estimating an upper 
bound for acrylonitrile levels in paint liquid wastes to illustrate 
that this constituent was highly unlikely to present risks in liquid 
wastes that are managed in tanks. However, based on the information 
provided by commenters and our supplemental investigations performed in 
response to those comments, we do not believe that the levels of these 
two constituents are likely to approach 1000 ppm. The information in 
our possession indicates that the highest expected concentrations are 
likely to be less than 50 to 100 ppm in paint binders, which would lead 
to levels in paint and associated wastes (25 to 50 ppm) that are well 
below the levels of concern. We would be speculating without 
information or technical support to assume higher levels in the waste. 
Therefore, we have decided that neither acrylamide nor acrylonitrile 
warrant inclusion as constituents of concern for listing waste solids 
from paint manufacturing.

Antimony

    We proposed listing levels for antimony based on the data we 
collected in our survey of generators and other information indicating 
that antimony compounds are used in paint manufacturing. The raw 
materials data base we developed for the proposal (66 FR 10084) shows 
that several forms of antimony are potentially used in paints, most 
notable being the use of antimony oxide as a flame retardant and/or 
pigment. Furthermore, the responses to our 3007 Survey indicated that a 
total of 11 facilities reported the presence of antimony in some waste 
(hazardous, nonhazardous, solid, liquid). Four facilities reported 
generating nonhazardous waste solids that contained antimony.
    We received four comments, three from trade associations and one 
from an industry facility, that stated that antimony should not be 
considered a constituent of concern. Commenters stated that the only 
color pigments which incorporate antimony are complex inorganic color 
pigments. One commenter provided references showing that the most 
common antimony-derived pigments (chrome antimony titanate and nickel 
antimony titanate) contain an extremely stable and insoluble form of 
antimony in a calcined matrix with titanium dioxide, which does not 
present risks. Other commenters indicated that antimony oxide is used 
in paints as a pigment, but argued that antimony pigments are used in 
small amounts and make up a small fraction (1%) of pigments used.
    In response to these comments, we reexamined the data we had for 
antimony in paint wastes from our 3007 Survey. Eight of the 11 
facilities that reported antimony in their wastes provided estimates of 
antimony levels. Generally, these levels were below levels of concern 
and were usually presented as ``less than'' values. We closely examined 
the information for the four facilities that reported the presence of 
antimony in nonhazardous waste solids. Two provided estimates of 
antimony levels in the survey: one generator reported very low levels 
(0.031%), and one reported potentially significant levels (1% in 
sludges). However, when we called to confirm the 1% value, this 
facility revised its estimate for sludges to 0.1% (1000 ppm). The 
facility contact indicated that they do not use antimony compounds in 
their products, and suggested that any antimony would be due to trace 
levels present in the titanium dioxide used in paint formulations. The 
facility provided information from its supplier for titanium dioxide 
that indicated levels of antimony were low (10 ppm). Thus, we consider 
the facility's revised estimate as a conservative estimate of potential 
antimony levels.
    We contacted the other two facilities that reported the presence of 
antimony in waste solids, but did not report antimony concentrations, 
to obtain information on the potential source and level of antimony. 
One facility reported only one ingredient out of hundreds used that 
contained antimony in a pigment. The company indicated that in the year 
2000 it used a total of 50 lbs. of the pigment, which contained about 
0.8 lbs. of antimony. Therefore, wastes from this facility are unlikely 
to contain antimony at levels of concern.\19\ The other facility is the 
only one from the survey that indicated it uses antimony as a flame 
retardant component. This company produced a small volume of coating 
products with antimony levels of 1 to 2%. The facility said that these 
products account for less than 0.6% of coating products manufactured 
annually, and indicated any levels in waste solids would be ``minute.''
---------------------------------------------------------------------------

    \19\ Using this facility's reported volume of paint 
manufacturing waste solids in 1998 (43,266 gallons or 394,245 kg), 
even assuming all the antimony was passed through to the wastes 
would yield 0.0001% antimony on an annual basis.
---------------------------------------------------------------------------

    Based on data from our materials data base, as well as MSDS 
documents we obtained, we recognize that some fire-retardant coatings 
may contain relatively high levels of antimony compounds (from 1.8 to 
8%). Therefore, we contacted an additional 5 facilities from the Dun 
and Bradstreet data base, which were not included in the survey, that 
appeared to be manufacturing flame-retardant paints or coatings. In all 
cases, the facilities indicated that the industry was moving away from 
antimony-based fire-retardant coatings and toward organic-based 
products. One of the 5 facilities indicated it still used antimony 
oxide in some products at levels of 0.5 to 1%. However, this facility 
said it does not generate waste solids, but only wash water, which is 
sent offsite for treatment.
    As noted by the commenters, there is some limited use of antimony 
compounds in paint pigments. In addition to use of antimony titanate 
compounds noted above, we also found MSDS data showing some use of 
antimony oxide in lead chromate paints at levels of 1 to 2%. However, 
we do not believe that the use of antimony in lead chromate paints 
would present significant risks, because we expect that facilities 
already handle wastes from such paints as hazardous waste under the 
RCRA TC regulations (40 CFR 261.24) due to the high levels of chromium 
and lead (26 to 57% lead chromate) in these products.\20\
---------------------------------------------------------------------------

    \20\ The TC threshold for leachable lead, for example, is 5 mg/L 
or 5 ppm. We found in the 3007 Survey that facilities coded paint 
manufacturing waste solids as TC hazardous (D008) when wastes 
contained levels of 0.02 to 3% lead, well below the levels found in 
lead chromate paints.

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

[[Page 16280]]

    In summary, after considering the available information on antimony 
use and the potential for waste to contain this constituent, we do not 
now believe that the information in hand supports a listing for this 
constituent. While antimony has some use in paint formulations, we did 
not find any waste from the surveyed facilities that contained antimony 
at levels that would approach the listing level. The most likely wastes 
to have high levels of antimony would be from the production of fire-
retardant paints, e.g., off specification products could contain 1 to 
2% antimony. However, manufacturers are moving away from antimony to 
organic-based fire-retardants, and we found very few facilities that 
reported using antimony in such formulations. Therefore, a listing 
based on antimony would only be addressing potential wastes from the 
production of a small proportion of highly specialized products (e.g., 
fire-retardant paints). The one facility we found that generates waste 
solids that may originate from flame retardant coatings containing 
antimony (1-2%) confirmed that these products account for less than 
0.6% of its production line. Products with high antimony levels appear 
to be a small fraction of paints and coatings produced, and even the 
facilities that use antimony appear unlikely to generate waste with 
significant levels on an annual basis. We believe such antimony wastes, 
even if they exist, would be generated infrequently and would not pose 
significant risks.
6. Conclusion for Paint Production Waste Solids
    We are making a final determination not to list waste solids from 
paint manufacturing. As noted in Section II of today's notice, we 
applied the factors under 261.11(a)(3) in making this listing 
determination. Most of these factors are incorporated into our risk 
assessment methodology (factors (i) through (viii) , including 
constituent toxicity, constituent concentration, constituent fate and 
transport, and waste volumes).\21\ In this regard, we revised our risk 
assessment to incorporate adjusted waste volume estimates and also to 
correct for an error in the modeling. We believe our original sampling 
scheme is statistically valid; the revised analyses show that different 
approaches to estimating waste volumes do not significantly alter the 
results (see Table IV.B-3). Correcting for an error in the modeling 
causes two constituents to drop from further consideration (methyl 
methacrylate and methyl isobutyl ketone).
---------------------------------------------------------------------------

    \21\ Note that we also considered whether any damage cases arose 
from the mismanagement of paint manufacturing wastes (factor (ix)). 
We determined that the available data did not provide useful 
information for a listing determination (see 66 FR 10082-10083).
---------------------------------------------------------------------------

    A critical factor in this listing determination is the 
concentrations of the constituents of concern in the waste (factor 
(viii)). After considering information from the proposal, the comments 
on the proposed rule, and other sources (e.g., MSDS documents), we do 
not believe the concentrations of acrylamide and acrylonitrile in paint 
wastes approach the revised listing levels. Similarly, after 
considering the available information on antimony use and the potential 
for waste to contain this constituent, we do not believe we have a 
sound basis to list this waste for this constituent. We did not find 
any surveyed facility that generated wastes with antimony 
concentrations that would approach the listing level. While antimony 
has some use in paint formulations, paint manufacturers are moving away 
from uses of most potential concern (e.g., in fire-retardant paints). 
We also conclude that products with high antimony levels are a small 
fraction of paints produced, and even the facilities that use antimony 
are unlikely to generate wastes that present risks of concern.
    Finally, we considered the impact of other regulatory programs on 
the potential management scenarios and the associated risks (factor 
(x)). As explained previously, we find that the existing RCRA 
regulations for wastes limit potential risks that may arise from the 
use of antimony in paints containing pigments such as lead chromate. 
Therefore, after considering these factors, we conclude that the 
available information for these constituents indicates that listing 
paint waste solids is not warranted.

V. Analytical and Regulatory Requirements

A. Executive Order 12866: Regulatory Planning and Review

    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:

--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;
--Create a serious inconsistency or otherwise interfere with an action 
taken or planned by another agency;
--Materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or rights and obligations or recipients thereof; 
or
--Raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in Executive Order 
12866.

    Today's final determination was submitted to OMB for review. 
Pursuant to the terms of the Executive Order, the Agency, in 
conjunction with OMB, has determined that today's final determination 
on paint production wastes was significant because of novel policy 
issues. Changes made in response to OMB suggestions or recommendations 
are documented in the public record.
    The aggregate annualized social costs for this final rule are 
generally equivalent to baseline costs. Furthermore, this rule is not 
expected to adversely affect, in a material way, the economy, a sector 
of the economy, productivity, competition, jobs, the environment, 
public health or safety, or State, local, or tribal governments or 
communities. The benefits to human health and the environment resulting 
from today's final determination are equivalent to baseline benefits. 
In short, today's final determination imposes no costs to industry and 
government and provides no benefits to human health and the 
environment.

B. What Economic and Equity Analyses Were Completed in Support of the 
Proposed Listing for Paint Production Wastes?

    We prepared an Economic Assessment\22\ in support of the February 
13, 2001 proposed rule. We found that the proposal would have resulted 
in incremental compliance costs to selected paint and coatings 
manufacturers who were subject to rule's requirements. In most cases, 
these manufacturers would have experienced incremental costs related to 
both RCRA administrative and Land Disposal

[[Page 16281]]

Restriction (LDR) requirements. We also found that there may have been 
minor cost impacts to Subtitle D landfill operators, if they would have 
needed to install tanks and/or piping systems in order to take 
advantage of the proposed temporary deferral under the Clean Water Act. 
Furthermore, because paint and coatings are so widely used throughout 
all sectors of the U.S. economy, any direct cost impacts to this 
industry would likely have rippled throughout the economy in the form 
of marginally higher prices or product alterations to users of the 
affected products. The extent of any price modification would have 
depended upon marketing decisions by individual producers, the 
availability of direct substitutes, and the regional price elasticity 
of demand for the products of concern.
---------------------------------------------------------------------------

    \22\ U.S. EPA, Office of Solid Waste, Economic Assessment for 
the Proposed Concentration-Based Listing of Wastewaters and Non-
wastewaters from the Production of Paints and Coatings--Final 
Report, January 19, 2001.
---------------------------------------------------------------------------

    Paint and coatings manufacturers are listed under the Standard 
Identification Classification (SIC) as industry 2851. The North 
American Industrial Classification System (NAICS) code for Paint and 
Coatings is 325510. Based on our RCRA 3007 industry survey, we 
estimated that, at the time of the proposal, there were 972 operational 
paint and coatings manufacturing facilities in the U.S. (See 66 FR 
10072). Census data indicated that total product shipments ranged from 
1.2 and 1.5 billion gallons per year between 1992 and 1998, with total 
1998 product value estimated at $17.2 billion.
    For the proposed concentration-based approach, we estimated 
aggregate nationwide compliance cost impacts at $7.3 million per year. 
Waste management costs were found to represent 81.3 percent of this 
total, followed by RCRA administration costs at 9.3 percent. Analytical 
and hazardous waste transport costs were found to each represent about 
4.7 percent of the total annual cost. The first scenario under this 
proposed approach assumed that the newly listed wastes currently going 
to hazardous waste fuel blending or directly to hazardous waste burning 
cement kilns would be diverted to commercial incineration at a higher 
cost. Although this is not likely to occur, it was considered here as a 
sensitivity scenario. Under this scenario, total nationwide costs 
increased to $18.1 million per year. The second scenario examined total 
costs for listing only paint production waste solids. The total costs 
under this scenario were estimated at $6.7 million per year. This 
scenario may more closely approach actual costs should generators 
divert all liquid wastes to exclusive management in tanks and discharge 
to a POTW, or under a NPDES permit. Total incremental compliance costs 
under the traditional or non-concentration-based option were estimated 
at $10.9 million per year. Under this option, 100 percent of the 
targeted waste would have become hazardous. At time of the proposal, we 
examined the no-list option as one alternative to the Agency's proposed 
approach. Costs under the no-list option were found to be zero, except 
perhaps for the negligible costs associated with reading of the final 
rule for informational purposes.
    We were not able to monetize the change in net welfare potentially 
resulting from the proposed rule. However, we were able to 
qualitatively describe those who were likely to have been negatively 
and positively impacted by the rule, as proposed. Positively impacted 
groups may have included the following: paint manufacturers who would 
not have been affected by the rule, hazardous waste management 
facilities and transporters, and population groups surrounding paint 
manufacturing facilities. Negatively impacted groups may have included 
paint manufacturers who would have been subject to rule requirements, 
paint consumers who may be impacted by increased prices, and municipal 
landfills had they needed to install new tanks or piping systems.
    We also examined all relevant Acts and Executive Orders in our 
assessment of impacts potentially associated with the February 13, 2001 
proposed action. These included the following: Executive Order 13045--
Children's Health, Executive Order 12898--Environmental Justice, 
Executive Order 13132--Federalism, Executive Order 13175--Consultation 
and Coordination with Indian Tribal Governments, Unfunded Mandates 
Reform Act. Overall, we found that the rule, as proposed, was not 
subject to these Orders and/or Acts due to the economic threshold or, 
no impacts were identified, or both.
    The January 19, 2001 Economic Assessment provides detailed 
information on the analytical methodology, data, and limitations 
associated with our cost analysis. This document also presents a 
detailed review of how we analyzed each relevant Executive Order and 
Act. This document is available in the docket established for the 
proposed action.
    In addition to the Economic Assessment, we conducted a Regulatory 
Flexibility Screening Analysis (RFSA) in support of the February 13, 
2001 proposed rule. This analysis, entitled: Regulatory Flexibility 
Screening Analysis for the Proposed Concentration-Based Listing of 
Wastewaters and Non-wastewaters from the Production of Paints and 
Coatings, January 19, 2001, was prepared in response to requirements 
established under to Regulatory Flexibility Act (RFA), as amended by 
the Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA), 5 U.S.C. 601 et.seq. Findings from this analysis indicated 
that the rule, as proposed, would not have resulted in significant 
economic impacts on a substantial number of small business paint 
manufacturers potentially subject to the rule's requirements. The RFSA 
document is available in the docket established for the proposed 
action.

C. What Substantive Comments Were Received on the Cost/Economic Aspects 
of the Proposed Listing for Paint Production Wastes?

    We received 44 comments in total, including two comments received 
after the close of the comment period. Of the total 44 comments, 20 
included some reference to the Economic Assessment, Regulatory 
Flexibility Screening Analysis (RFSA), and/or cost and economic issues 
in general. Fifteen of these comments were from industry and five were 
from trade associations. The comments can be consolidated into nine 
substantive issues. These are: (1) Expansion of 40 CFR part 261--
appendix VIII, (2) addition of chemicals as UHCs, (3) addition of 
chemicals to F039, (4) analytical issues, (5) cost impacts on 
remediation wastes, (6) potential for indirect cost impacts occurring 
to raw material suppliers, (7) implementation concerns, (8) scope 
concerns, and, (9) baseline requirements may impact the need for a 
final rule.
    As described in section IV, our final determination not to list any 
of the targeted paint production wastes was based on considerations 
other than cost/economic issues presented by commenters. Therefore, 
none of the public comments on the above substantive economic issues, 
or any specific economic comment, impacted our final no-list 
determination. As such, we have not prepared specific responses to 
these comments. However, we recognize and acknowledge the key economic 
issues and concerns raised by commenters. These issues are summarized 
in our response-to-comments document. This document, entitled: Public 
Comment Summary and Response Document addressing Economic Issues 
Associated With the Proposed Listing for Paint Production Wastes, in 
support of the Paint Production Wastes Final Determination, is 
available in the docket established for today's final determination.

[[Page 16282]]

D. What Are the Potential Costs and Benefits of Today's Final 
Determination?

    The value of any regulatory action is traditionally measured by the 
net change in social welfare that it generates. All other factors being 
equal, a rule that generates positive net welfare would be advantageous 
to society, while a rule that results in negative net welfare to 
society should be avoided.
    Today's final determination is expected to generally impose no 
costs on industry. Thus, aside from the negligible burden of reading 
and understanding the relevant section of the Federal Register, the 
incremental burden to industry is expected to be zero. Benefits to 
human health and the environment potentially associated with today's 
final determination will generally be equivalent to baseline 
conditions.

E. 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.?

    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 Procedures Act or any 
other statute, unless the agency certifies that the rule will not have 
a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small organizations, 
and small governmental jurisdictions. For purposes of assessing the 
impacts of today's final determination on small entities, a small 
entity is defined either by the number of employees or by the annual 
dollar amount of sales/revenues. The level at which an entity is 
considered small is determined for each NAICS code by the Small 
Business Administration (SBA).
    The Agency has examined the potential effects today's final 
determination may have on small entities, as required by the RFA/
SBREFA. We have determined that this action will not have a significant 
economic impact on a substantial number of small entities. This is 
evidenced by the fact that today's no-list action will result in zero 
to negligible incremental cost impacts. The only potential impact 
associated with this action may be the burden associated with reading 
and understanding the final determination. After considering the 
economic impacts of today's final determination on small entities, I 
certify that this action will not have a significant economic impact on 
a substantial number of small entities.

F. Was the Unfunded Mandates Reform Act Considered in This Final 
Determination?

    Executive Order 12875, ``Enhancing the Intergovernmental 
Partnership'' (October 26, 1993), called on federal agencies to provide 
a statement supporting the need to issue any regulation containing an 
unfunded federal mandate and describing prior consultation with 
representatives of affected state, local, and tribal governments. 
Signed into law on March 22, 1995, the Unfunded Mandates Reform Act 
(UMRA) supersedes Executive Order 12875, reiterating the previously 
established directives while also imposing additional requirements for 
federal agencies issuing any regulation containing an unfunded mandate.
    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 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
single year. Before promulgating an EPA rule for which a written 
statement is needed, section 205 of the UMRA generally requires EPA to 
identify and consider a reasonable number of regulatory alternatives 
and adopt the least costly, most cost-effective or least burdensome 
alternative that achieves the objectives of the rule. The provisions of 
section 205 do not apply when they are inconsistent with applicable 
law. Moreover, section 205 allows EPA to adopt an alternative other 
than the least costly, most cost-effective or least burdensome 
alternative if the Administrator publishes with the final rule an 
explanation why that alternative was not adopted.
    Before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, the Agency must develop a small government agency plan, as 
required under section 203 of UMRA. This plan must provide for 
notifying potentially affected small governments, enabling officials of 
affected small governments to have meaningful and timely input in the 
development of EPA regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with the regulatory requirements.
    Today's final determination is not subject to the requirements of 
sections 202 and 205 of UMRA. Today's final determination will not 
result in $100 million or more in incremental expenditures. The 
aggregate annualized incremental social costs for today's final 
determination are projected to be near zero. Furthermore, today's final 
determination is not subject to the requirements of section 203 of 
UMRA. Section 203 requires agencies to develop a small government 
Agency plan before establishing any regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments. We have determined that this final determination will not 
significantly or uniquely affect small governments.

G. Were Equity Issues and Children's Health Considered in This Final 
Determination?

    By applicable executive order, we are required to consider the 
impacts of today's rule with regard to environmental justice and 
children's health.
1. Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks''
    ``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 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency. Today's final determination is 
not subject to the Executive Order because it is not economically 
significant, as defined in Executive Order 12866.
2. Executive Order 12898: Environmental Justice
    Executive Order 12898, ``Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Population'' (February 
11, 1994), is designed to address the environmental and human health

[[Page 16283]]

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 to waste programs and to develop an overall 
strategy to identify and address these issues (OSWER Directive No. 
9200.3-17). We have no data indicating that today's final determination 
would result in disproportionately negative impacts on minority or low 
income communities.

H. What Consideration Was Given to Tribal Governments?

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    Today's final determination does not have tribal implications. It 
will not have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in the Order. Today's final 
determination will not significantly or uniquely affect the communities 
of Indian tribal governments, nor impose substantial direct compliance 
costs on them.

I. Were Federalism Implications Considered in Today's Final 
Determination?

    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.''
    Today's final determination 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 the Order. Thus, Executive Order 13132 does 
not apply to this final determination.

J. Were Energy Impacts Considered?

    Executive Order 13211, ``Actions Concerning Regulations That Affect 
Energy Supply, Distribution, or Use'' (May 18, 2001), addresses the 
need for regulatory actions to more fully consider the potential energy 
impacts of the proposed rule and resulting actions. Under the Order, 
agencies are required to prepare a Statement of Energy Effects when a 
regulatory action may have significant adverse effects on energy 
supply, distribution, or use, including impacts on price and foreign 
supplies. Additionally, the requirements obligate agencies to consider 
reasonable alternatives to regulatory actions with adverse affects and 
the impacts the alternatives might have upon energy supply, 
distribution, or use.
    Today's final determination is not likely to have any significant 
adverse impact on factors affecting energy supply. We believe that 
Executive Order 13211 is not relevant to this action.

VI. Paperwork Reduction Act

    This final determination does not impose an information collection 
burden under the provisions of the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). Because there are no paperwork requirements as 
part of this final determination, we are not required to prepare an 
Information Collection Request (ICR) in support of today's action.

VII. National Technology Transfer and Advancement Act of 1995

    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 final determination does not involve technical standards; 
thus, the requirements of section 12 (d) of the National Technology 
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

VIII. The Congressional Review Act (5 U.S.C. 801 et seq., as Added 
by the Small Business Regulatory Enforcement Fairness Act of 1996)

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA submitted a report containing this determination, 
and other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication in the Federal Register. A ``major rule'' cannot take 
effect until 60 days after it is published in the Federal Register. 
This action is not a ``major rule'' as defined by 5 U.S.C. 804(2).

    Dated: March 28, 2002.
Christine Todd Whitman,
Administrator.
[FR Doc. 02-8153 Filed 4-3-02; 8:45 am]
BILLING CODE 6560-50-P