[Federal Register Volume 68, Number 227 (Tuesday, November 25, 2003)]
[Proposed Rules]
[Pages 66164-66230]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-28783]



[[Page 66163]]

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Part II





Environmental Protection Agency





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



Hazardous Waste Management System; Identification and Listing of 
Hazardous Waste; Dyes and/or Pigments Production Wastes; Land Disposal 
Restrictions for Newly Identified Wastes; CERCLA Hazardous Substance 
Designation and Reportable Quantities; Designation of Five Chemicals as 
Appendix VIII Constituents; Addition of Five Chemicals to the Treatment 
Standards of F039 and the Universal Treatment Standards; Proposed Rule

  Federal Register / Vol. 68, No. 227 / Tuesday, November 25, 2003 / 
Proposed Rules  

[[Page 66164]]


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ENVIRONMENTAL PROTECTION AGENCY

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

[RCRA-2003-0001; SWH-FRL-7587-6]
RIN 2050-AD80


Hazardous Waste Management System; Identification and Listing of 
Hazardous Waste; Dyes and/or Pigments Production Wastes; Land Disposal 
Restrictions for Newly Identified Wastes; CERCLA Hazardous Substance 
Designation and Reportable Quantities; Designation of Five Chemicals as 
Appendix VIII Constituents; Addition of Five Chemicals to the Treatment 
Standards of F039 and the Universal Treatment Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to list 
nonwastewaters from the production of certain dyes, pigments, and FD&C 
colorants as hazardous wastes under the Resource Conservation and 
Recovery Act (RCRA), which directs EPA to determine whether these 
wastes present a hazard to human health or the environment. EPA is 
proposing a mass loading-based approach for these wastes. Under this 
approach, these wastes are hazardous if they contain any of the 
constituents of concern at annual mass loading levels that meet or 
exceed regulatory levels. If generators determine that their wastes are 
below regulatory levels for all constituents of concern, then their 
wastes are nonhazardous. If their wastes meet or exceed the regulatory 
levels for any of eight specific constituents of concern, the wastes 
must be managed as listed hazardous wastes. However, even if the wastes 
meet or exceed the regulatory levels, the wastes would not be hazardous 
if two conditions are met: The wastes do not meet or exceed annual mass 
loadings for toluene-2,4-diamine, and the wastes are disposed in a 
Subtitle D landfill cell subject to the municipal solid waste landfill 
design criteria or in a Subtitle C landfill cell subject to applicable 
design criteria. When mass loadings meet or exceed the specified annual 
levels, the generator may still manage as nonhazardous all wastes 
generated up to the loading limit.
    This proposal would also add the toxic constituents o-anisidine, p-
cresidine, 1,2-phenylenediamine, 1,3-phenylenediamine, and 2,4-
dimethylaniline associated with these identified wastes to the list of 
constituents that serves as the basis for classifying wastes as 
hazardous. In addition, this proposal would establish treatment 
standards for the wastes.
    If these dyes and/or pigments production wastes are listed as 
hazardous waste, then they will be subject to stringent management and 
treatment standards under Subtitle C of RCRA.
    Additionally, this action proposes to designate these wastes as 
hazardous substances subject to the Comprehensive Environmental 
Response, Compensation, and Liability Act (CERCLA). The proposal would 
not adjust the one pound statutory reportable quantity (RQ) for K181 
waste, nor would EPA develop a ``reference RQ'' for the new 
constituents identified for K181.
    Other actions proposed in this notice would add o-anisidine, p-
cresidine, 1,3-phenylenediamine, toluene-2,4-diamine, and 2,4-
dimethylaniline to the treatment standards applicable to multisource 
leachate and also to add these chemicals to the Universal Treatment 
Standards. As a result, a single waste code would continue to be 
applicable to multisource landfill leachates and residues of 
characteristic wastes would require treatment when any of these 
chemicals are present above the proposed land disposal treatment 
standards.

DATES: EPA will accept public comments on this proposed rule until 
February 23, 2004. Comments postmarked after this date will be marked 
``late'' and may not be considered. Any person may request a public 
hearing on this proposal by filing a request with Mr. Robert Dellinger, 
whose address appears below, by December 9, 2003. Consult the sources 
of information in FOR FURTHER INFORMATION CONTACT for the time and 
location of the hearing, if such hearing is requested.

ADDRESSES: Comments may be submitted by mail to: OSWER Docket, 
Environmental Protection Agency, Mailcode: 5305T, 1200 Pennsylvania 
Ave., NW., Washington, DC, 20460, Attention Docket ID No. RCRA-2003-
0001. Comments may also be submitted electronically, by facsimile, or 
through hand delivery/courier. Follow the detailed instructions as 
provided in the SUPPLEMENTARY INFORMATION section.
    If you would like to file a request for a public hearing on this 
proposal, please submit your request to Mr. Robert Dellinger at: Office 
of Solid Waste, Hazardous Waste Identification Division (5304W), U.S. 
Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., 
Washington, DC 20460, (703) 308-7271 or via email at 
[email protected].
    See the beginning of the SUPPLEMENTARY INFORMATION section for 
information on how to submit your comments as well as view public 
comments and supporting materials.

FOR FURTHER INFORMATION CONTACT: For general information, contact the 
RCRA Call Center 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 or review our Web site at http://www.epa.gov/epaoswer/hazwaste/id/dyes/index.htm. For information on 
specific aspects of the rule, contact Ms. Gwen DiPietro 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) 308-8285). For technical 
information on the CERCLA aspects of this rule, contact Ms. Lynn 
Beasley, Office of Emergency Prevention, Preparedness, and Response, 
Emergency Response Center (5204G), U.S. Environmental Protection 
Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, (E-mail 
address and telephone number: [email protected], (703) 603-9086). 
For information on the procedures for submitting CBI data, contact Ms. 
Regina Magbie (5305W), U.S. Environmental Protection Agency, 1200 
Pennsylvania Avenue, NW., Washington, DC 20460, (E-mail address and 
telephone number: [email protected], (703) 308-7909).

SUPPLEMENTARY INFORMATION:

Who Potentially Will Be Affected by This Proposed Rule?

    If promulgated as proposed, this regulation could directly impact 
businesses that generate and manage certain organic dyes and/or 
pigments production wastes. In addition, manufacturers that do not make 
dyes or pigments, but that generate wastes containing selected 
constituents of concern, may be indirectly impacted. This is because we 
are adding new treatment standards for eight chemicals, and we are 
adding five new constituents to the list of hazardous constituents on 
appendix VIII of part 261. Thus, these actions may result in indirect 
impacts on these manufacturers. In addition, landfill owners/operators 
who previously accepted these wastes may be indirectly impacted. This 
action may also affect entities that need to respond

[[Page 66165]]

to releases of these wastes as CERCLA hazardous substances. Impacts on 
potentially affected entities, direct and indirect, are summarized in 
section IX of this Preamble. The economics background document, 
``Economic Assessment for the Proposed Loadings-Based Listing of Non-
Wastewaters from the Production of Selected Organic Dyes, Pigments, and 
Food, Drug, and Cosmetic Colorants,'' presents a comprehensive analysis 
of all potentially impacted entities. This document is available in the 
docket established in support of today's proposed rule. A summary of 
potentially affected businesses is provided in the table below.
    Our aim in the table below is to provide a guide for readers 
regarding entities likely to be directly regulated, or indirectly 
affected by this action. This action, however, may affect other 
entities not listed in the table. To determine whether your facility is 
regulated or affected by this action, you should examine 40 CFR parts 
260 and 261 carefully, along with the proposed regulatory language 
amending RCRA. This language is found at the end of this Federal 
Register notice. If you have questions regarding the applicability of 
this action to a particular entity, consult the person listed in the 
preceding section entitled FOR FURTHER INFORMATION CONTACT.

                     Summary of Facilities Potentially Affected by EPA's 2003 Dyes and/or Pigments Production Waste Listing Proposal
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               SIC code                        NAICS code           Industry sector name              Estimated number of relevant facilities *
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                                                                    Directly Impacted
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2865..................................  325132-1................  Synthetic Organic Dyes..  37
                                       ----------------------------------------------------
                                        325132-4................  Synthetic Organic         ............................................................
                                                                   Pigments, Lakes, and
                                                                   Toners.
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                                                                   Indirectly Impacted
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2800..................................  325.....................  Chemical Manufacturing..  Less than 50 facilities total **
(except 2865).........................  (except 325132).........
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4953..................................  562212..................  Solid Waste Landfills     ............................................................
                                                                   and disposal sites,
                                                                   nonhazardous.
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5169..................................  42269...................  Other Chemicals and       ............................................................
                                                                   Allied Products
                                                                   (wholesale).
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SIC--Standard Industrial Classification.
NAICS--North American Industrial Classification System.
* Note: The figures in this column represent individual facilities, not companies.
** Estimate based on 13 expanded scope facilities plus no more than 37 separate solid waste landfills (562212) potentially receiving wastes of concern.

How Can I Get Copies of This Document and Other Related Information?

    1. Docket. EPA has established an official public docket for this 
action under Docket ID No. RCRA-2003-0001. The official public docket 
consists of the documents specifically referenced in this action, any 
public comments received, and other information related to this action. 
The docket for this proposed rulemaking currently contains no 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. If EPA receives such information 
in comments or finds that it must use such information, it will place 
it in the official docket, but will not make it available to the 
public. The official public docket is the collection of materials that 
is available for public viewing at the OSWER Docket in the EPA Docket 
Center (EPA/DC), EPA West, Room B102, 1301 Constitution Ave., NW., 
Washington, DC. The EPA Docket Center Public Reading Room is open from 
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number for the Public Reading Room is (202) 
566-1744, and the telephone number for the OSWER Docket is (202) 566-
0270.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at http://www.epa.gov/fedrgstr/, and you can make comments on 
this proposed rule at the Federal e-rulemaking portal, http://www.regulations.gov.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public 
comments, access the index listing of the contents of the official 
public docket, and to access those documents in the public docket that 
are available electronically. Once in the system, select ``search,'' 
then key in the appropriate docket identification number.
    Certain types of information will not be placed in the EPA Docket. 
Information claimed as CBI and other information whose disclosure is 
restricted by statute, which is not included in the official public 
docket, will not be available for public viewing in EPA's electronic 
public docket. EPA's policy is that copyrighted material will not be 
placed in EPA's electronic public docket but will be available only in 
printed, paper form in the official public docket. To the extent 
feasible, publicly available docket materials will be made available in 
EPA's electronic public docket. When a document is selected from the 
index list in EPA Dockets, the system will identify whether the 
document is available for viewing in EPA's electronic public docket. 
Although not all docket materials may be available electronically, you 
may still access any of the publicly available docket materials through 
the RCRA Docket facility. EPA intends to work toward providing 
electronic access to all of the publicly available docket materials 
through EPA's electronic public docket.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper,

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will be made available for public viewing in EPA's electronic public 
docket as EPA receives them and without change, unless the comment 
contains copyrighted material, CBI, or other information whose 
disclosure is restricted by statute. When EPA identifies a comment 
containing copyrighted material, EPA will provide a reference to that 
material in the version of the comment that is placed in EPA's 
electronic public docket. The entire printed comment, including the 
copyrighted material, will be available in the public docket.
    Public comments submitted on computer disks that are mailed or 
delivered to the docket will be transferred to EPA's electronic public 
docket. Public comments that are mailed or delivered to the Docket will 
be scanned and placed in EPA's electronic public docket. Where 
practical, physical objects will be photographed, and the photograph 
will be placed in EPA's electronic public docket along with a brief 
description written by the docket staff.
    For additional information about EPA's electronic public docket 
visit EPA Dockets online or see 67 FR 38102, May 31, 2002.

How and to Whom Do I Submit Comments?

    You may submit comments electronically, by mail, by facsimile, or 
through hand delivery/courier. To ensure proper receipt by EPA, 
identify the appropriate docket identification number in the subject 
line on the first page of your comment. Please ensure that your 
comments are submitted within the specified comment period. Comments 
received after the close of the comment period will be marked ``late.'' 
EPA is not required to consider these late comments. If you wish to 
submit CBI or information that is otherwise protected by statute, 
please follow the instructions provided later in this section. Do not 
use EPA Dockets or e-mail to submit CBI or information protected by 
statute.
    1. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. Also include this contact information on the outside 
of any disk or CD ROM you submit, and in any cover letter accompanying 
the disk or CD ROM. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. EPA's policy is that EPA 
will not edit your comment, and any identifying or contact information 
provided in the body of a comment will be included as part of the 
comment that is placed in the official public docket, and made 
available in EPA's electronic public docket. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment.
    i. EPA Dockets. Your use of EPA's electronic public docket to 
submit comments to EPA electronically is EPA's preferred method for 
receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket, and follow the online instructions for submitting comments. To 
access EPA's electronic public docket from the EPA Internet Home Page, 
select ``Information Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once 
in the system, select ``search,'' and then key in Docket ID No. RCRA-
2003-0001. The system is an ``anonymous access'' system, which means 
EPA will not know your identity, e-mail address, or other contact 
information unless you provide it in the body of your comment.
    ii. E-mail. Comments may be sent by electronic mail (e-mail) to 
[email protected], Attention Docket ID No. RCRA-2003-0001. In 
contrast to EPA's electronic public docket, EPA's e-mail system is not 
an ``anonymous access'' system. If you send an e-mail comment directly 
to the Docket without going through EPA's electronic public docket, 
EPA's e-mail system automatically captures your e-mail address. E-mail 
addresses that are automatically captured by EPA's e-mail system are 
included as part of the comment that is placed in the official public 
docket, and made available in EPA's electronic public docket.
    iii. Disk or CD ROM. You may submit comments on a disk or CD ROM 
that you mail to the mailing address identified below. These electronic 
submissions will be accepted in WordPerfect or ASCII file format. Avoid 
the use of special characters and any form of encryption.
    2. By Mail. Send your comments to: OSWER Docket, Environmental 
Protection Agency, Mailcode: 5305T, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460, Attention Docket ID No. RCRA-2003-0001.
    3. By Hand Delivery or Courier. Deliver your comments to: EPA 
Docket Center, Public Reading Room, Room B102, EPA West Building, 1301 
Constitution Avenue, NW., Washington, DC 20004, Attention Docket ID No. 
RCRA-2003-0001. Such deliveries are only accepted during the Docket's 
normal hours of operation (8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays).
    4. By Facsimile. Fax your comments to: (202) 566-0272, Attention 
Docket ID. No. RCRA-2003-0001.

How Should I Submit CBI to the Agency?

    Do not submit information that you consider to be CBI 
electronically through EPA's electronic public docket or by e-mail. 
Send or deliver information identified as CBI only to the following 
address: RCRA CBI Document Control Officer, Office of Solid Waste 
(5305W), U.S. EPA, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, 
Attention Docket ID No. RCRA-2003-0001. You may claim information that 
you submit to EPA as CBI by marking any part or all of that information 
as CBI (if you submit CBI on disk or CD ROM, mark the outside of the 
disk or CD ROM as CBI and then identify electronically within the disk 
or CD ROM the specific information that is CBI). Information so marked 
will not be disclosed except in accordance with procedures set forth in 
40 CFR part 2.
    In addition to one complete version of the comment that includes 
any information claimed as CBI, a copy of the comment that does not 
contain the information claimed as CBI must be submitted for inclusion 
in the public docket and EPA's electronic public docket. If you submit 
the copy that does not contain CBI on disk or CD ROM, mark the outside 
of the disk or CD ROM clearly that it does not contain CBI. Information 
not marked as CBI will be included in the public docket and EPA's 
electronic public docket without prior notice. If you have any 
questions about CBI or the procedures for claiming CBI, please consult 
the person identified in the FOR FURTHER INFORMATION CONTACT section.

What Should I Consider as I Prepare My Comments for EPA?

    You may find the following suggestions helpful for preparing your 
comments:
    1. Explain your views as clearly as possible.
    2. Describe any assumptions that you used.
    3. Provide any technical information and/or data you used that 
support your views.
    4. If you estimate potential burden or costs, explain how you 
arrived at your estimate.
    5. Provide specific examples to illustrate your concerns.

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    6. Offer alternatives.
    7. Make sure to submit your comments by the comment period deadline 
identified.
    8. To ensure proper receipt by EPA, identify the appropriate docket 
identification number in the subject line on the first page of your 
response. It would also be helpful if you provided the name, date, and 
Federal Register citation related to your comments.

Readable Regulations

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

                                Acronyms
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              Acronym                            Definition
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AOC...............................  Areas of Concern
AWQC..............................  Ambient Water Quality Criteria
BDAT..............................  Best Demonstrated Available
                                     Technology
BHP...............................  Biodegradation, hydrolysis and
                                     photolysis
BRS...............................  Biennial Reporting System
CAA...............................  Clean Air Act
CalEPA............................  California Environmental Protection
                                     Agency
CARBN.............................  Carbon Absorption
CAS...............................  Chemical Abstract Services
CBI...............................  Confidential Business Information
CCL...............................  Compacted Clay Liner
CERCLA............................  Comprehensive Environmental Response
                                     Compensation and Liability Act
CERCLIS...........................  Comprehensive Environmental Response
                                     Compensation and Liability
                                     Information System
CFR...............................  Code of Federal Regulations
CHOXD.............................  Chemical or Electrolytic Oxidation
CL................................  Clay Lined
CMBST.............................  Combustion
CMS...............................  Corrective Measures Study
CoC...............................  Constituent of Concern
CPMA..............................  Color Pigments Manufacturers
                                     Association
CSF...............................  Cancer Slope Factor
CWA...............................  Clean Water Act
CWT...............................  Centralized Wastewater Treatment
                                     Facility (may also be referred to
                                     as a wastewater treatment facility,
                                     or WWTF)
ED................................  Environmental Defense (previously
                                     the Environmental Defense Fund or
                                     EDF)
EO................................  Executive Order
EP................................  Extraction Procedure
EPA...............................  Environmental Protection Agency
EPACMTP...........................  EPA's Composite Model for Leachate
                                     Migration with Transformation
                                     Products
EPCRA.............................  Emergency Planning and Community
                                     Right-To-Know Act
ETAD..............................  Ecological and Toxicological
                                     Association of Dyes and Organic
                                     Pigments Manufacturers
EU................................  European Union
FB................................  Followed By
FDA...............................  Food and Drug Administration
FD&C..............................  Food, Drug and Cosmetic
FR................................  Federal Register
GC/MS.............................  Gas Chromatography/Mass Spectroscopy
GCL...............................  Geosynthetic Clay Liner
GM................................  Geomembrane
GRAS..............................  Generally Recognized as Safe
HAP...............................  Hazardous Air Pollutant
HDPE..............................  High Density Polyethylene
HEAST.............................  Health Effects Assessment Summary
                                     Table
HELP..............................  Hydrologic Evaluation of Landfill
                                     Performance
HPLC/MS or UV.....................  High Performance Liquid
                                     Chromatography/Mass Spectroscopy or
                                     Ultraviolet Light
HPV...............................  High Production Volume
HQ................................  Hazard Quotient
HSWA..............................  Hazardous and Solid Waste Amendments
IACM..............................  International Association of Color
                                     Manufacturers
ICR...............................  Information Collection Request
IRIS..............................  Integrated Risk Information System
IWAIR.............................  Industrial Waste Air
KG................................  Kilogram
LDR...............................  Land Disposal Restriction
MACT..............................  Maximum Achievable Control
                                     Technology
mg/kg.............................  Milligram per kilogram
mg/L..............................  Milligram per liter
MINTEQ............................  MINTEQ (model for geochemical
                                     equilibria in ground water)
MSDS..............................  Material Safety Data Sheet

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MSWLF.............................  Municipal Solid Waste Landfill
MT................................  Metric Ton
NAICS.............................  North American Industrial
                                     Classification System
NAPL..............................  Non-Aqueous Phase Liquid
NCV...............................  National Capacity Variance
NESHAP............................  National Emission Standards for
                                     Hazardous Air Pollutants
NL................................  No Liner
NPDES.............................  National Pollutant Discharge
                                     Elimination System
NPL...............................  National Priority List
NRC...............................  National Response Center
NSPS..............................  New Source Protection Standard
NTTAA.............................  National Technology Transfer and
                                     Advancement Act
OCPSF.............................  Organic Chemicals, Plastics, and
                                     Synthetic Fibers
OMB...............................  Office of Management and Budget
OSW...............................  Office of Solid Waste
OSWER.............................  Office of Solid Waste and Emergency
                                     Response
POTW..............................  Publicly Owned Treatment Works
ppb...............................  Parts Per Billion
ppm...............................  Parts Per Million
PRA...............................  Paperwork Reduction Act
QA................................  Quality Assurance
QC................................  Quality Control
RCRA..............................  Resource Conservation and Recovery
                                     Act
RFA...............................  Regulatory Flexibility Act
RfC...............................  Reference Concentration
RfD...............................  Reference Dose
RFI...............................  RCRA Facility Investigation
RFSA..............................  Regulatory Flexibility Screening
                                     Analysis
RODS..............................  Record of Decision System
RQ................................  Reportable Quantity
SBA...............................  Small Business Administration
SBREFA............................  Small Business Regulatory
                                     Enforcement Fairness Act
SIC...............................  Standard Industry Code
SL................................  Synthetic Liner
SOCMI.............................  Synthetic Organic Chemical
                                     Manufacturing Industry
SOP...............................  Standard Operating Procedure
SRI...............................  Stanford Research Institute
SW-846............................  Test Methods for Evaluating Solid
                                     Wastes
SWMU..............................  Solid Waste Management Unit
TCLP..............................  Toxicity Characteristic Leaching
                                     Procedure
TRI...............................  Toxic Release Inventory
TSCA..............................  Toxic Substances Control Act
TSDF..............................  Treatment, Storage and Disposal
                                     Facility
TSS...............................  Total Suspended Solids
UMRA..............................  Unfunded Mandates Reform Act
USC...............................  United States Code
UTS...............................  Universal Treatment Standard
VOC...............................  Volatile Organic Compound
WETOX.............................  Wet Air Oxidation
WMU...............................  Waste Management Unit
WWT...............................  Wastewater Treatment
------------------------------------------------------------------------

Contents of This Proposed Rule

I. Overview
    A. What Impact May This Proposed Rule Have?
    B. What Are the Statutory Authorities for This Proposed Rule?
II. Background
    A. How Does EPA Define a Hazardous Waste?
    B. How Does EPA Regulate RCRA Hazardous Wastes?
    C. How Does EPA Regulate Solid Wastes That Are Not RCRA 
Hazardous Wastes?
    D. Overview of the Hazardous Waste Listing Determination Process 
for Dyes and/or Pigments Production Wastes
    1. Previous Proposals
    2. Consent Decree Schedule for This Proposal
    3. Effect on Proposals of Legal Actions Pertaining to 
Confidential Business Information
    E. Existing Regulations That Apply to This Industry
    F. What Industries and Wastes Are Covered in This Proposed Rule?
    1. Scope of Industry Classifications
    2. Scope of Waste Classifications
    G. Description of the Dyes and/or Pigments Production Industries
    H. What Publicly Available Information Did EPA Collect and Use?
III. Approach Used in This Proposed Listing
    A. Summary of Today's Action
    B. Why Is a Mass Loadings-Based Approach Being Used for This 
Listing?
    C. What Wastes Are Generated by This Industry?
    D. How Are These Wastes Currently Managed?
    E. What Waste Management Scenarios Did We Select for Risk 
Assessment Modeling?
    1. Plausible Waste Management Selection Criteria and Modeling 
Considerations
    2. Selection of Waste Management Scenarios for Risk Assessment 
Modeling of Dyes and/or Pigments Nonwastewaters
    3. Selection of Waste Management Scenarios for Risk Assessment 
Modeling

[[Page 66169]]

of Dyes and/or Pigments Production Wastewaters
    F. What Factors Did EPA Incorporate Into Its Quantitative Risk 
Assessment?
    G. Overview of the Risk Assessment
    1. How Did EPA Chose Potential Constituents of Concern?
    2. What Was EPA's Approach to Conducting Human Health Risk 
Assessment?
    3. What Was EPA's Approach to Conducting the Ecological Risk 
Assessment?
    4. What Is the Uncertainty in the Risk Results?
    5. How Did EPA Use Damage Case Information?
IV. Proposed Listing Determinations
    A. What Are the Proposed Regulations for Dyes and/or Pigments 
Production Nonwastewaters?
    1. Landfill Scenarios Underlying Listing Loading Limits
    2. Conditional Exemption for Certain Landfilled Wastes
    3. Selecting K181 Constituents and Mass Loading Limits
    4. Assessment of Biodegradation
    5. Lead as a Potential K181 Constituent
    6. Waste Analysis Concerns
    7. Proposed Additions to Appendices VII and VIII of Part 261
    8. Co-Generation With Out-of-Scope Wastes
    B. How Does K181 Impact Wastes That Are Not Landfilled, 
Combusted, or Previously Listed?
    1. What Is the Status of Wastes That Are Not Landfilled?
    2. What Is the Status of Wastes Destined for Combustion That 
Trigger the K181 Listing Levels?
    3. Applicability to Wastes That Are Already Hazardous
    C. Why Are We Proposing Not To List Wastewaters?
    1. Air Emissions From Tanks and Surface Impoundments
    2. Groundwater Releases From Surface Impoundments
    D. Scope of the Listings and the Effect on Treatment Residuals
    E. What Is the Status of Previously Disposed Wastes and Landfill 
Leachate From Previously Disposed Wastes?
V. Proposed Requirements for K181 Determinations
    A. How Do I Demonstrate That My Wastes Are Nonhazardous?
    1. Categorical Determination
    2. No K181 Constituents of Concern
    3. Low Quantity Versus High Quantity Wastes With K181 
Constituents
    4. Section (d)(2) Demonstrations for Waste Quantities Less Than 
1,000 MT/yr
    5. Section (d)(3) Demonstrations for Waste Quantities Greater 
Than 1,000 MT/yr
    6. EPA and State Oversight
    B. How Do I Document Compliance With the Landfill Condition?
    C. How Would I Manage My Wastes During the Period Between 
Generation and Hazardous Waste Determination?
    D. Implementation Examples
    E. What Are the Consequences of Failing To Meet Recordkeeping 
Requirements or Listing Conditions?
VI. Proposed Treatment Standards Under RCRA's Land Disposal 
Restrictions
    A. What Are EPA's Land Disposal Restrictions (LDRs)?
    B. How Does EPA Develop LDR Treatment Standards?
    C. What Treatment Standards Are We Proposing?
    D. What Changes to Existing Treatment Requirements Are Proposed?
    E. Other LDR-Related Provisions
    F. Is There Treatment and Management Capacity Available for 
These Proposed Newly Identified Wastes?
    1. What Is a Capacity Determination?
    2. What Are the Capacity Analysis Results?
VII. State Authority and Compliance
    A. How Are States Authorized Under RCRA?
    B. How Would This Rule Affect State Authorization?
    C. Who Would Need to Notify EPA That They Have a Hazardous 
Waste?
    D. What Would Generators and Transporters Have to Do?
    E. Which Facilities Would Be Subject to Permitting?
    1. Facilities Newly Subject to RCRA Permit Requirements
    2. Existing Interim Status Facilities
    3. Permitted Facilities
    4. Units
    5. Closure
VIII. CERCLA Designation and Reportable Quantities
    A. What Is the Relationship Between RCRA and CERCLA?
    B. How Does EPA Determine Reportable Quantities?
    C. EPA Will Assign An RQ of One-Pound for The Waste
    D. How Does a Mass Loading Limit Hazardous Waste Listing 
Approach Relate to My Reporting Obligations Under CERCLA? When Would 
I Need To Report a Release of These Wastes Under CERCLA?
    E. How Would I Report a Release?
    F. What Is the Statutory Authority for This Program?
    G. How Can I Influence EPA's Thinking on Regulating K181 Under 
CERCLA?
IX. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    1. Background
    2. Need for the Proposed Rule
    3. Consideration of Non-Regulatory Alternatives
    4. Evaluation of Regulatory Options
    5. Assessment of Costs, Economic Impacts, and Benefits
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 12898: Environmental Justice
    I. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    J. National Technology Transfer and Advancement Act

I. Overview

A. What Impact May This Proposed Rule Have?

    We are proposing to list nonwastewaters from the production of 
certain dyes and/or pigments as hazardous wastes under Subtitle C of 
RCRA. If you are a dye, pigment or FD&C colorant manufacturer and you 
generate nonwastewaters described in this proposed rule, then you would 
need to determine if your wastes meet the new hazardous waste code, 
K181, if finalized. Your waste would become a listed hazardous waste if 
it contains annual mass loadings (kilograms/year, abbreviated as kg/yr) 
of any of the K181 constituents of concern at a level equal to or 
greater than the hazardous loading identified for that constituent (see 
Table IV-1), unless you meet both of the following conditions: (1) Your 
wastes do not contain annual mass loadings of the constituent for which 
we are proposing a second, higher tier listing limit (see Table IV-2), 
and (2) you manage your wastes in a Subtitle D landfill cell subject to 
the design criteria in Sec.  258.40 or in a Subtitle C landfill cell 
subject to Sec.  264.301 or Sec.  265.301. When mass loadings meet or 
exceed the specified annual levels, you may still manage as 
nonhazardous all wastes generated up to the loading limit. If you 
determine that your nonwastewaters are hazardous under this listing, 
then the wastes must be stored, treated and disposed in a manner 
consistent with the RCRA Subtitle C hazardous waste regulations at 40 
CFR parts 260-272. If you were not previously a hazardous waste 
generator, and you determine that you generate this newly-listed 
hazardous waste, then you must notify the EPA or your authorized state, 
according to section 3010 of RCRA, that you generate hazardous waste.
    If you believe that your wastes do not exceed the K181 listing 
levels, or that you meet the conditions for exclusion from the listing, 
you can document your findings on an annual basis, and manage your 
wastes as nonhazardous. If your annual generation of nonwastewaters 
potentially subject to the K181 listing exceeds 1,000 metric tons and 
you wish to demonstrate that your wastes do not exceed the K181 listing 
levels, you must conduct sampling and analysis of the affected wastes, 
calculate the constituent-specific mass-loadings, and keep certain 
records of these wastes on-site. On the other hand, if your annual 
generation of nonwastewaters potentially subject to the K181 listing is

[[Page 66170]]

less than 1,000 metric tons and you wish to demonstrated that your 
wastes do not exceed the K181 listing levels, you can use your 
knowledge of your wastes to calculate your wastes' mass loadings. 
Following the initial determination that your wastes are nonhazardous 
under this listing, you would have a continuing obligation to make such 
a determination at least on an annual basis. After three consecutive 
annual demonstrations that your wastes are not subject to K181, you 
would be able to make subsequent determinations based on your knowledge 
of the wastes, rather than by conducing waste analysis.
    We are proposing not to list wastewaters from the production of 
dyes and/or pigments.
    Section II provides background on the Listing Program, past 
proposed listing determinations for these wastes, relevant litigation, 
the scope of this effort, an overview of this industry and the general 
types of data that we used. Section III describes our approach to 
conducting this listing determination. Section IV presents our basis 
for concluding that nonwastewaters should be listed as K181 and that 
wastewaters do not warrant listing. Section V describes the proposed 
process for demonstrating that your wastes are not K181.

B. What Are the Statutory Authorities for This Proposed Rule?

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

II. Background

A. How Does EPA Define a Hazardous Waste?

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

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

    Under the third criterion, at 40 CFR 261.11(a)(3), we may decide to 
list a waste as hazardous if it contains hazardous constituents 
identified in 40 CFR part 261, appendix VIII, and if, after considering 
the factors noted in this section of the regulations, we ``conclude 
that the waste is capable of posing a substantial present or potential 
hazard to human health or the environment when improperly treated, 
stored, transported, or disposed of, or otherwise managed.'' We place a 
chemical on the list of hazardous constituents on Appendix VIII only if 
scientific studies have shown a chemical has toxic effects on humans or 
other life forms. When listing a waste, we also add the hazardous 
constituents that serve as the basis for listing the waste to 40 CFR 
part 261, appendix VII.
    The regulations at 40 CFR 261.31 through 261.33 contain the various 
hazardous wastes the Agency has listed to date. Section 261.31 lists 
wastes generated from non-specific sources, known as ``F-wastes,'' and 
contains wastes that are usually generated by various industries or 
types of facilities, such as ``wastewater treatment sludges from 
electroplating operations'' (see code F006). Section 261.32 lists 
hazardous wastes generated from specific industry sources, known as 
``K-wastes,'' such as ``Spent potliners from primary aluminum 
production'' (see code K088). Section 261.33 contains lists of 
commercial chemical products and other materials, known as ``P-wastes'' 
or ``U-wastes,'' that become hazardous wastes when they are discarded 
or intended to be discarded.
    Today's proposed regulations would list certain dyes and/or 
pigments production wastes as a K-waste code under Sec.  261.32. We are 
also proposing to add constituents that serve as the basis for the 
proposed listings to appendix VII of part 261, as well as to add 
certain constituents to appendix VIII of part 261 that are not already 
included.
``Derived-From'' and ``Mixture'' Rules
    Residuals from the treatment, storage, or disposal of most listed 
hazardous wastes are also classified as hazardous wastes based on the 
``derived-from'' rule (40 CFR 261.3(c)(2)(i)). For example, ash or 
other residuals generated from the treatment of a listed waste 
generally carries the original hazardous waste code and is subject to 
the hazardous waste regulations. Also, the ``mixture'' rule (40 CFR 
261.3(a)(2)(iii) and (iv)) provides that, with certain limited 
exceptions, any mixture of a listed hazardous waste and a solid waste 
is itself a RCRA hazardous waste.

B. How Does EPA Regulate RCRA Hazardous Wastes?

    If a waste exhibits a hazardous characteristic or is listed as a 
hazardous waste then it is subject to federal requirements under RCRA. 
These regulations affect persons who generate, transport, treat, store 
or dispose of such waste. Facilities that must meet hazardous waste 
management requirements, including the need to obtain permits to 
operate, commonly are referred to as ``Subtitle C'' facilities. 
Subtitle C is Congress' original statutory designation for that part of 
RCRA that directs EPA to issue regulations for hazardous wastes as may 
be necessary to protect human health or the environment. EPA standards 
and procedural regulations implementing Subtitle C are found generally 
at 40 CFR parts 260 through 273.
    All RCRA hazardous wastes are also hazardous substances under the

[[Page 66171]]

Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA), as defined in section 101(14)(C) of the CERCLA statute. This 
applies to wastes listed in Sec. Sec.  261.31 through 261.33, as well 
as any wastes that exhibit a RCRA characteristic. Table 302.4 at 40 CFR 
302.4 lists CERCLA hazardous substances along with their reportable 
quantities (RQs). Anyone spilling or releasing a substance at or above 
the RQ must report the release to the National Response Center, as 
required in CERCLA section 103. In addition, section 304 of the 
Emergency Planning and Community Right-to-Know Act (EPCRA) requires 
facilities to report the release of a CERCLA hazardous substance at or 
above its RQ to State and local authorities. Today's rule proposes to 
establish RQs for the newly listed wastes.

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

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

D. Overview of the Hazardous Waste Listing Determination Process for 
Dyes and/or Pigments Production Wastes

1. Previous Proposals
    Under the Resource Conservation and Recovery Act (RCRA) of 1976, as 
an amendment to the Solid Waste Disposal Act of 1965, Congress directed 
EPA to establish a framework for RCRA's Subtitle C hazardous waste 
program. Congress also required EPA to propose and write timely rules 
identifying wastes as hazardous under Subtitle C.
    In the early 1980's, the EPA's Office of Solid Waste began an 
investigation of the wastes generated by the dyes and/or pigments 
production industries. Then in 1984, Congress passed the Hazardous and 
Solid Waste Amendments (HSWA) to RCRA to significantly expand the scope 
of RCRA, requiring EPA, in part, to make listing determinations for a 
number of wastes including those from the manufacture of dyes and 
pigments (RCRA section 3001(e)(2)). The Agency has made two listing 
determination proposals with regard to organic dyes and pigments 
manufacture, one in 1994 and another in 1999, according to the 
deadlines set forth in a consent decree entered between EPA and 
Environmental Defense (ED; formerly Environmental Defense Fund, or 
EDF). The consent decree is described further in II.C.2.
    On December 22, 1994, the Agency proposed its first listing 
determinations for wastes from the production of organic dyes and 
pigments (59 FR 66071). Specifically, the Agency proposed to list five 
wastes, not to list six other wastes, and to defer action on an 
additional three wastes. On July 23, 1999, the Agency proposed 
concentration-based listings for two of the three deferred wastes from 
the 1994 proposed rule (64 FR 40192). EPA redacted underlying data from 
both proposals due to a court injunction that placed restrictions on 
the Agency's release of underlying data with unresolved confidentiality 
claims. (The court injunction is discussed further in II.C.3.) EPA has 
not taken final action on either of these proposals.
    Today's proposed rule completely supercedes the '94 and '99 
proposals. We have transferred over to the new docket those non-CBI 
materials that we are using as a basis for the new proposal.
2. Consent Decree Schedule for This Proposal
    As noted above, HSWA established deadlines for completion of a 
number of listing determinations, including for dyes and pigments 
production wastes (see RCRA section 3001(e)(2)). Due to competing 
demands for Agency resources and shifting priorities, these deadlines 
were not met. As a result, in 1989, ED filed a lawsuit to enforce the 
statutory deadlines for listing decisions in RCRA section 3001(e)(2). 
(Environmental Defense v. Whitman, D.D.C. Civ. No. 89-0598.) To resolve 
most of the issues in the case, in 1991 ED and EPA entered into a 
consent decree which has been amended several times to revise the 
deadlines for EPA action. Paragraph 1.h.(i) (as amended in December 
2002) of the consent decree addresses the organic dyes and pigments 
production industries:

    EPA shall promulgate final listing determinations for azo/
benzidine, anthraquinone, and triarylmethane dye and pigment 
production wastes on or before February 16, 2005 * * * These listing 
determinations shall be proposed for public comment on or before 
November 10, 2003.

    Furthermore, paragraph 6.e. (as amended) stipulates that:

    On or before November 10, 2003, EPA's Administrator shall sign a 
notice of proposed rulemaking proposing land disposal restrictions 
for dye and pigment wastes proposed for listing under paragraph 
1.h.(i). EPA shall promulgate a final rule establishing land 
disposal restrictions for dye and pigment wastes listed under 
paragraph 1.h.(i) on the same date that it promulgates a final 
listing determination for such wastes.

    Today's proposal satisfies EPA's duty under paragraphs 1.h and 6.e 
of the ED consent decree to propose listing determinations and land 
disposal restrictions for the specified organic dyes and/or pigments 
production wastes.
3. Effect on Proposals of Legal Actions Pertaining to Confidential 
Business Information
    In late 1994, just prior to EPA's issuance of the first listing 
proposal for dyes and/or pigments production wastes, EPA was sued by a 
number of pigment manufacturers who successfully sought an injunction 
prohibiting EPA from releasing the companies' information that they had 
submitted to EPA and claimed as Confidential Business Information 
(CBI). (Magruder Color Co. v. EPA, Civ. No. 94-5768 (D.N.J.) The U.S. 
District Court in New Jersey enjoined EPA from disclosing any of the 
claimed CBI at issue in the litigation. As a result, EPA redacted 
underlying data from both its 1994 and 1999 proposed dye and pigment 
listing determinations. Members of the public (including ED) informed 
EPA that they could not adequately comment on the proposals without 
access to the redacted data.
    EPA had intended to litigate the Magruder case and publish a notice 
of data availability releasing any information that the Court 
determined not to be CBI. However, litigation proved extremely time-
consuming. Consequently, in 2002 EPA decided to try a new strategy--
issuing a completely new proposal that did not rely on data subject to 
the injunction in Magruder. EPA also reached a settlement with Magruder 
plaintiffs that stayed the litigation during this new rulemaking and 
permitted EPA to disclose certain specified masked and aggregated waste 
sampling data. The Stipulation and Consent Order entered by the 
District Court on June 30, 2003 is available in the docket for today's 
proposal.
    Today's proposal has been developed independently of the first and 
second proposals. It does use some data developed for the 1994 
proposal. First, it uses RCRA Sec.  3007 questionnaire

[[Page 66172]]

responses submitted by dyes and/or pigments manufacturers that were not 
plaintiffs in Magruder and that we have determined are not CBI. We also 
use the masked and aggregated data from EPA's record sampling and 
analysis of dye and pigment wastes disclosed pursuant to the settlement 
described above. Finally, we use some data submitted in public comments 
that are not claimed as CBI. We are not using, however, any of the 
analyses or background documents prepared for the two previous 
proposals. We have conducted new analyses, prepared new background 
documents, and reached new conclusions. Today's proposal completely 
supersedes the 1994 and 1999 proposals. EPA does not intend to respond 
to comments submitted on those proposals. Thus, if you believe that any 
comments submitted on those proposals remains germane to today's 
proposal, you should submit them (or relevant portions) again during 
this comment period.

E. Existing Regulations That Apply to This Industry

    RCRA authorizes EPA to evaluate industry waste management practices 
and, if necessary, regulate how wastes are handled to ensure that 
present or potential hazards are not posed to human health and the 
environment. In addition to RCRA, the Clean Water Act (CWA) and Clean 
Air Act (CAA) provide EPA with the statutory authority to evaluate 
industry practices and, if necessary, regulate industry releases of 
pollutants to environmental media such as water and air.
    Currently, there are no hazardous waste listings under RCRA 
specifically directed at organic dyes and/or pigments production 
wastes. Organic dyes and/or pigments production waste streams may, 
however, carry hazardous waste listing and/or characteristic codes if 
they are generated from the use of certain common organic solvents 
(spent solvent wastes F001 through F005) or if they exhibit a hazardous 
waste characteristic (ignitability-D001, corrosivity-D002, reactivity-
D003, toxicity-D004-D043). In addition, a variety of intermediates used 
in dyes and pigments production are listed hazardous waste when 
disposed as discarded commercial chemical products under Sec.  261.33. 
EPA is not soliciting comment on these existing hazardous waste 
listings and does not intend to respond to such comments if received. 
As explained in section IV.B.3, EPA is proposing to exclude from 
today's proposed listing dyes and/or pigments production wastes that 
are subject to these existing listings or hazardous waste 
characteristics.
    Regulatory requirements under the CWA (40 CFR part 414) specify 
effluent guidelines for wastewaters discharged from the organic 
chemical industry, including certain dyes and/or pigments production 
wastes that are discharged to navigable waters. These guidelines are 
implemented through national pollutant discharge elimination system 
(NPDES) permits. These regulations apply to dyes and/or pigments 
production wastes that originate from the manufacture of cyclic crudes 
and intermediates, dyes, and organic pigments classified under SIC 2865 
(among various organic chemicals, plastics, and synthetic fibers 
(OCPSF) products). In addition, manufacturers who discharge wastewaters 
generated from dyes and/or pigments production to a publicly owned 
treatment works (POTW) may be required to comply with general 
pretreatment requirements (40 CFR part 403) as established by the POTW. 
Finally, some dyes and/or pigments manufacturers send their wastewaters 
to privately-owned centralized wastewater treatment facilities (CWTs) 
that are operated under NPDES permits. The Agency promulgated effluent 
guidelines for these facilities at 40 CFR part 437.
    Under the CAA, there are existing regulatory requirements for the 
organic chemical industry that may apply to dyes and/or pigments 
production facilities, such as:
    [sbull] 40 CFR part 60--several subparts on standards of 
performance for VOC emissions for new stationary sources.
    [sbull] 40 CFR part 61--national emission standards for hazardous 
air pollutants on equipment leaks from fugitive emission sources, 
benzene operations, etc.
    [sbull] 40 CFR part 63--several subparts on national emission 
standards for hazardous air pollutants (NESHAP) for the synthetic 
organic chemical manufacturing industry (SOCMI).
    [sbull] 40 CFR part 68--chemical accident prevention provisions.
    [sbull] 40 CFR part 82--protection of stratospheric ozone.
    For example, 40 CFR part 60 subpart Kb provides standards of 
performance for volatile organic liquid storage vessels; subpart III 
provides standards of performance for VOC emissions from the SOCMI air 
oxidation unit processes; and subpart RRR provides standards of 
performance for VOC emissions from the SOCMI reactor processes. The 
NESHAP in part 63 subpart F applies to chemical manufacturing 
processing units; the NESHAP in part 63 subpart G applies to process 
vents, storage vessels, transfer operations, and wastewater; the NESHAP 
in part 63 subpart H covers equipment leaks; the NESHAP in part 63 
subpart I applies to certain processes subject to the negotiated 
regulation for equipment leaks; and the NESHAP in part 63 subpart Q 
applies to industrial cooling towers.
    There is also a proposed new source performance standard (NSPS) for 
volatile organic compound emissions for wastewaters from the synthetic 
organic chemical manufacturing industry (SOCMI) (see 59 FR 46780, 
September 12, 1994; and 63 FR, 68087; and December 9, 1998, amendments 
to the proposed rule based on public comments and changes to other 
SOCMI rules). This SOCMI Wastewater NSPS proposal will most likely be 
promulgated and published in the Federal Register in late 2003 or early 
2004. Furthermore, the Agency proposed on April 4, 2002, Subpart FFFF 
NESHAP, to reduce hazardous air pollutants from the miscellaneous 
organic chemical manufacturing and the miscellaneous coating 
manufacturing categories (67 FR 16154). This proposal would apply to 
the production of a variety of SIC 28/NAICS 325 organic chemicals 
including organic dyes and pigments.
    In addition, the Agency has promulgated performance standards and 
emission guidelines for new and existing commercial and industrial 
solid waste incineration units burning nonhazardous wastes (see 65 FR 
75337; December 1, 2002). The Agency also has recently proposed a 
NESHAP for industrial/commercial/institutional boilers and process 
heaters identified as major sources of hazardous air pollutants (HAP) 
emissions (see 63 FR 1659; January 13, 2003).
    There are also air emission regulations for steam generating 
boilers under 40 CFR Part 60 Subparts D, Da, Dc and Db that provide New 
Source Performance Standards (NSPS) limiting emissions from boilers 
built after certain dates. Moreover, the Agency has published an 
amendment for standards of performance for industrial-commercial-
institutional steam generating units located at chemical manufacturing 
plants and petroleum refineries burning high-nitrogen byproduct/wastes 
(66 FR 49830; October 1, 2001).

F. What Industries and Wastes Are Covered in This Proposed Rule?

1. Scope of Industry Classifications
    EPA based many of its decisions concerning the scope of the 
industries and wastes covered in this proposal on the ED v. Browner 
consent decree. Paragraph 1.h.(i) of the consent decree stipulates 
that:


[[Page 66173]]


    EPA shall promulgate final listing determinations for azo/
benzidine, anthraquinone, and triarylmethane dye and pigment 
production wastes * * * The azo/benzidine listing determination 
shall include the following azo/benzidine dye and pigments classes: 
azo, monoazo, diazo, triazo, polyazo, azoic, benzidine, and 
pyrazolone. The anthraquinone listing determination shall include 
the following anthraquinone dye and pigment classes: anthraquinone 
and perylene. The triarylmethane listing determination shall include 
the following triarylmethane dye and pigment classes: triarylmethane 
and triphenylmethane.

    Today's proposal applies only to certain organic dye and/or pigment 
production industries. The end-user markets for dyes and pigments, 
which include textiles, paper, leather, inks, paints, coatings, 
plastics, fibers, lacquers, varnishes, cosmetics, food items, and other 
low volume markets, are not within the scope of our listing 
determination. Similarly, we are not addressing wastes from the post-
production formulation and packaging of dyes and/or pigments. 
Consistent with both HSWA Amendments of 1984 and the consent decree, 
EPA is only making proposed determinations on wastes from the 
production of the organic dyes and/or pigments at issue.
    Facilities impacted by today's proposal manufacture a range of 
products. Some are exclusive dye manufacturers, while others produce 
exclusively pigments. Others produce both pigments and dyes, and many 
of these facilities produce other products that are not dyes or 
pigments. While the various trade associations have asserted over time 
that wastes from dye manufacture differs from wastes from pigment 
manufacture, we are not differentiating between the two types of 
products for the purposes of this proposal. Dyes and pigments commonly 
use similar raw materials, and pigments are often made by 
insolubilizing dyes. The mass loadings-based approach proposed today 
will only impact those facilities that generate wastes with significant 
levels of the K181 constituents, irrespective of whether they are 
associated with dyes, pigments or both processes. As a result, this 
notice uses the terminology ``dyes and/or pigments'' to refer to all of 
the facilities or processes potentially impacted by this proposal.
    Products produced by the organic dyes and/or pigments industries 
that are included within the scope of this proposed rule are referred 
to as ``dyes,'' ``pigments'' or ``FD&C colorants.'' The consent decree 
covers three major chemical classes of organic dyes and pigments: azo/
benzidine, anthraquinone, and triarylmethane. This includes entities 
who manufacture azo, monoazo, diazo, triazo, polyazo, azoic, benzidine, 
and pyrazolone categories of the azo/benzidine class; anthraquinones 
and perylenes; and triarylmethane and triphenylmethane categories of 
the triarylmethane class.
    Commenters on the previous proposed listing determinations for 
these wastes raised several questions about the range of products that 
would be associated with any listed wastes from the production of dyes 
and/or pigments. For the purposes of clarity, we are addressing those 
particular concerns in today's proposal. One commenter \1\ stated that 
wastes from the manufacture of polymeric colorants should not be 
included in the proposed listings. The commenter noted that polymeric 
colorants are not classified as dyes or pigments by various 
authoritative sources and are not considered dyes or pigments by 
industry or end-users. Specifically, the commenter noted that (1) no 
polymeric colorant is listed in the worldwide dyes registry 
administered by the United Kingdom-based Royal Society of Dyers and 
Colourists, i.e., the Colour Index; and (2) polymeric colorants do not 
appear to qualify as a conventional dye or pigment under the guidelines 
provided in Kirk-Othmer Encyclopedia of Chemical Technology (Fourth 
Edition). The commenter described polymeric colorants as polymers with 
much higher molecular weights (approximately 3,500) than either dyes or 
pigments (less than 500). The commenter also noted that in prior 
rulemakings (e.g., carbamate rulemaking \2\ and polymer exemption 
provisions under the Toxic Substances Control Act (TSCA)),\3\ EPA 
recognized the reduced toxicity associated with higher molecular weight 
molecules. The commenter further noted that producers of such products 
claim that the manufacturing process and end uses of polymeric 
colorants are different than dyes or pigments in that polymeric 
colorants must be non-staining. The dyes manufacturers' trade 
association, ETAD, noted in their comments that they do not classify 
polymeric colorants as dyes.\4\ We agree that polymeric colorants do 
not fall within the classes of products of interest to today's 
proposal. Wastes from production of polymeric colorants, therefore, are 
not within the scope of today's proposed listing determination.
---------------------------------------------------------------------------

    \1\ See Milliken comments on 1994 and 1999 proposals, available 
in the docket for today's proposal.
    \2\ 60 FR 7824, 7830 (February 9, 1995).
    \3\ 40 CFR 723.250.
    \4\ See ETAD's comments on 1994 proposal, available in the 
docket for today's proposal.
---------------------------------------------------------------------------

    Several commenters \5\ stated that perylene and perinone pigments 
are misclassified as anthraquinones. They argue that although the 
Colour Index classifies perylenes and perinones as being subclasses of 
anthraquinone, these pigment classes are not structurally related to 
anthraquinones and are not derived from anthraquinone-based raw 
materials, and therefore, should be classified separately. While there 
may be a question as to whether perylenes should be classified as 
anthraquinones, we are proposing to retain wastes from the production 
of perylene products within the scope of today's proposed listing 
determination. The consent decree specifically requires us to assess 
perylene products, and therefore we must make listing determinations 
that cover any corresponding wastes, regardless of whether or not 
perylenes are properly classified as anthraquinones.
---------------------------------------------------------------------------

    \5\ See comments on the 1994 proposal submitted by CDR, Bayer, 
and CPMA, and on the 1999 proposal submitted by CPMA, available in 
the docket for today's proposal.
---------------------------------------------------------------------------

    Regarding perinone pigments, while the Colour Index groups 
perinones under the broader classification of ``Anthraquinones and 
Related Colouring Matters,'' we are persuaded by the commenters' 
arguments that these products are sufficiently dissimilar from 
anthraquinones. Perinones do not have the quinone-type structure that 
is distinctive of anthraquinones, but rather perinones are derivatives 
of naphthalene-1,4,5,8-tetracarboxylic acid.\6\ Therefore, we are not 
proposing that perinones be covered by today's proposed listing 
determination.
---------------------------------------------------------------------------

    \6\ For example, see the perinone pigment: C.I. Pigment Orange 
43; in this case the pigment has only one carbon bound to an oxygen 
in a carbonyl group (instead of two in the typical anthraquinone) 
and this carbon is bonded to a nitrogen in an amide linkage (instead 
of a carbon in an anthraquinone).
---------------------------------------------------------------------------

    Commenters also stated that quinacridone pigments are not within 
the anthraquinone pigment category since they are quinonoid in type and 
carry Colour Index numbers outside of the anthraquinone category. We 
agree that these products are sufficiently dissimilar from 
anthraquinones. Quinacridones are classified as acridines, which have a 
nitrogen in the fused ring system.\7\ Therefore, we are not proposing 
to include their wastes

[[Page 66174]]

within the scope of today's proposed listing determination.
---------------------------------------------------------------------------

    \7\ For example, see the quinacridone pigment: C.I. Pigment Red 
202; this pigment has only one carbonyl group (instead of two in the 
typical anthraquinone) and instead of another carbonyl moiety the 
molecule has a nitrogen in the typical acridine ring structure.
---------------------------------------------------------------------------

    Additional information on polymeric colorants, perylenes, 
perinones, and quinacridones is presented in the ``Background Document 
for Identification and Listing of Wastes from the Production of Organic 
Dyes and Pigments'' (hereafter referred to as the Listing Background 
Document) and in the referenced comments which are available in the 
public docket for today's proposal.
2. Scope of Waste Classifications
    Paragraph 1.h.(ii) of the consent decree describes the dyes and/or 
pigments production wastes that must be addressed by our listing 
determination:

    Listing determinations under paragraph 1(h) of this Decree shall 
include the following wastes, where EPA finds such wastes are 
generated: spent catalysts, reactor still overhead, vacuum system 
condensate, process waters, spent adsorbent, equipment cleaning 
sludge, product mother liquor, product standardization filter cake, 
dust collector fines, recovery still bottoms, treated wastewater 
effluent, and wastewater treatment sludge.

    In this proposal, we have grouped all of the wastes for these 
industries that are identified in the consent decree into two major 
categories of process wastes: Wastewaters and nonwastewaters. Some 
manufacturers may commingle nonprocess wastes (i.e., cafeteria and 
office refuse, sanitary wastes) with wastewaters or nonwastewaters from 
dyes and/or pigment production. We consider these nonprocess wastes to 
be outside the scope of the consent decree and we have not evaluated 
them. However, if they are commingled with the process nonwastewaters 
that we propose to list, they will be regulated as K181 hazardous 
wastes under the RCRA mixture rule.

G. Description of the Dyes and/or Pigments Production Industries

    Organic dye and/or pigment manufacturers are typically concentrated 
near large metropolitan areas, with the majority of facilities located 
on the East Coast and in the Midwest. We estimate that there are 37 
dyes and/or pigments production facilities operating in the United 
States by about 29 different companies (a few larger companies operate 
several facilities).\8\ Of this universe, we estimate that about 15 of 
these companies meet the Small Business Administration definition of a 
small business (total company employment of fewer than 750 people at 
the corporate level).
---------------------------------------------------------------------------

    \8\ ``Economic Assessment for the Proposed Loadings-Based 
Listing of Non-Wastewaters from the Production of Selected Organic 
Dyes, Pigments, and Food, Drug, and Cosmetic Colorants,'' U.S. EPA. 
November, 2003.
---------------------------------------------------------------------------

    Kirk-Othmer defines dyes as intensely colored or fluorescent 
organic substances which impart color to a substrate by selective 
absorption of light.\9\ When applied, dyes penetrate the substrate in a 
soluble form, after which they may or may not become insoluble. The 
structure of dyes is temporarily altered during the application process 
and colors are imparted only by selective absorption.
---------------------------------------------------------------------------

    \9\ ``Dyes and Dye Intermediates.'' Kirk-Othmer Encyclopedia of 
Chemical Technology, Fourth Edition. Volume 8. New York: John Wiley 
& Sons, Inc, 1993.
---------------------------------------------------------------------------

    Dyes are used to color fabrics, leather, paper, ink, lacquers, 
varnishes, plastics, cosmetics, and some food items. Several thousand 
individual dyes of various colors and types are manufactured. This 
large number is attributable to the many different types of materials 
to which dyes are applied and the different conditions of service for 
which dyes are required.\10\
---------------------------------------------------------------------------

    \10\ ``Chemical Economic Handbook Marketing Research Report--
Dyes,'' SRI International, 2000.
---------------------------------------------------------------------------

    Synthetic dyes are derived in whole or in part from cyclic 
intermediates. Approximately two-thirds of the dyes consumed in the 
United States are used by the textiles industry to dye fabrics, and 
about one-sixth are used for coloring paper, while the remainder are 
used primarily in the production of organic pigments and in the dyeing 
of leather and plastics.\11\
---------------------------------------------------------------------------

    \11\ ``Synthetic Organic Chemicals United States Production and 
Sales, 1991,'' USITC Publication 2607, February 1993.
---------------------------------------------------------------------------

    Commercial dyes are sold in several physical forms including 
granular, powders, liquid solutions, and pastes. The dyes contain color 
at concentrations ranging from approximately 1 to more than 98 
percent.\12\
---------------------------------------------------------------------------

    \12\ ``Chemical Economic Handbook Marketing Research Report--
Dyes,'' SRI International, 2000.
---------------------------------------------------------------------------

    Organic dyes are classified in several ways, including their 
chemical structure or class, general dye chemistry, and application 
process. Chemical structure classifications include azos, 
triarylmethanes, diphenylmethanes, anthraquinones, stilbenes, methines, 
polymethines, xanthenes, phthalocyanines, sulfurs and so on. Kirk-
Othmer describes the common application process classes of dyestuffs to 
include acid dyes, mordant dyes, metal complex dyes, direct dyes, 
fiber-reactive dyes, basic dyes, vat dyes, sulfur dyes, disperse dyes, 
ingrain dyes/azoic dyes, and other dyes. Using general dye chemistry, 
textile dyes typically are grouped into the following categories: acid 
dyes, direct (substantive dyes), azoic dyes, disperse dyes, sulfur 
dyes, fiber reactive dyes, basic dyes, oxidation dyes, mordant (chrome) 
dyes, developed dyes, vat dyes, pigments, optical/fluorescent 
brighteners, and solvent dyes.\13\ The trade association representing 
the dye industry is the Ecological and Toxicological Association of 
Dyes and Organic Pigments Manufacturers (ETAD).
---------------------------------------------------------------------------

    \13\ S. V. Kulkarni, C. D. Blackwell, A. L. Blackard, C. W. 
Stackhouse, and M. W. Alexander, U.S. Environmental Protection 
Agency, Air and Energy Engineering Research Laboratory, ``Project 
Summary Textile Dyes and Dyeing Equipment: Classification, 
Properties, and Environmental Aspects,'' EPA/600/S2-85/010, April 
1985.
---------------------------------------------------------------------------

    The Color Pigment Manufacturers' Association (CPMA), which 
primarily represents the pigments industry, defines pigments as 
``colored, black, white, or fluorescent particulate organic or 
inorganic solids, which usually are insoluble in, and essentially 
physically and chemically unaffected by, the vehicle or substrate in 
which they are incorporated.'' \14\ According to the CPMA, the primary 
difference between pigments and dyes is that pigments are insoluble in 
the substrate during the application process, while dyes are soluble in 
the substrate. Pigments retain a crystalline or particulate structure 
and impart color by selective absorption or by scattering of light.
---------------------------------------------------------------------------

    \14\ See, for example, CPMA comments on the Testing of Certain 
High Production Volume Chemical; Data Collection and Development on 
High Production Volume (``HPV'') Chemicals Proposed Rule and Notice 
65 FR 81658, December 26, 2000, Docket Control No. OPPTS-42213A, 
http://www.thecre.com/watchlist/20010423_cpma.html#start.
---------------------------------------------------------------------------

    The approximate percentage of synthetic organic pigments by use 
during 1991-1995 was as follows: inks (60%), paints and coatings (25%), 
plastics (10%), and other (5%). Pigments are used primarily in printing 
inks. There are fewer pigments produced than dyes, however, pigment 
batches generally are larger in size. U.S. production of organic 
pigments increased by 5 percent during 1997-99, from 75,500 tons to 
79,500 tons. Production is estimated to increase at an average annual 
rate of 2.7 percent through 2005.\15\
---------------------------------------------------------------------------

    \15\ Data and estimates taken from Will, Raymond and Akihiro 
Kishi. SRI International, The Chemical Economics Handbook, 2001. CEH 
Marketing Research Report--Pigments (pages 3 and 5).
---------------------------------------------------------------------------

    Organic pigments are derived in whole or in part from benzenoid 
chemicals and colors and are described as being toners or lakes. Toners 
and lakes essentially are the same in final form, but differ in their 
preparation method.

[[Page 66175]]

    FD&C colorants are dyes and pigments that have been certified or 
provisionally certified by the Food and Drug Administration (FDA) for 
use in food items, drugs, and/or cosmetics. The International 
Association of Color Manufacturers (IACM) represents certain FD&C 
colorant manufacturing facilities. Typically, FD&C colorants are azo, 
anthraquinone, or triarylmethane dyes with azo representing the largest 
category. These products are similar or identical to larger-volume dye 
products not used in food, drugs, and cosmetics.
    The dyes and/or pigments industries typically operate successive 
batch processes producing varying dyes and/or pigments products. These 
batch operations generate a wide variety of solid wastes periodically. 
Wastes are often commingled from multiple processes prior to 
management, and include secondary wastes generated from the treatment 
of commingled waste (e.g., facilities commingle wastewaters prior to 
managing them in tanks or impoundments, and generate commingled 
wastewater treatment sludges). Some wastes may also be process-specific 
wastes that are generated from a specific process and may be managed 
independently of other wastes (e.g., spent filter aids).\16\, \17\
---------------------------------------------------------------------------

    \16\ ``Dyes and Dye Intermediates.'' Kirk-Othmer Encyclopedia of 
Chemical Technology, Fourth Edition. Volume 8. New York: John Wiley 
& Sons, Inc. 1993.
    \17\ ``Pollution Prevention Guidance Manual for the Dye 
Manufacturing Industry.'' U.S. Environmental Protection Agency and 
the Ecological and Toxicological Association of the Dyestuffs 
Manufacturing Industry. 1990.
---------------------------------------------------------------------------

    For more detailed information, see the Listing Background Document 
available in the public docket for today's proposed rule.

H. What Publicly Available Information Did EPA Collect and Use?

    In light of the constraints imposed by the Magruder injunction on 
survey and analytical data with unresolved CBI claims, we identified a 
variety of publicly available sources of information for today's 
listing determinations. We used these data (as described elsewhere in 
this proposal and in the docket materials available in the public 
docket for today's proposal) for several purposes: (1) To support a 
general assessment of the dyes and/or pigments industries' waste 
generation and management practices; (2) to develop a list of potential 
constituents of concern; (3) to identify plausible waste management 
scenarios that are the basis for our risk assessment and listing 
determination; and (4) to project potential impacts associated with the 
proposal.
    The more important data sources we used include the following:

--Non-CBI RCRA Sec.  3007 questionnaire information and data, collected 
during the 1992 Agency survey of wastes generated in the dyes and/or 
pigments industries, and supplemented, corrected, and updated (for the 
year 1997) by the surveyed facilities. Surveys submitted by the twelve 
plaintiffs in Magruder remain unavailable. The available surveys are 
(1) surveys submitted by non-plaintiffs who made no CBI claims; (2) 
surveys submitted by non-plaintiffs who made CBI claims, but later 
withdrew them; and (3) surveys submitted by non-plaintiffs who made CBI 
claims, which EPA denied under the procedures set out in 40 CFR part 2.
--EPA's analytical data from sampling and analysis of the wastes of 
concern, developed in the early 1990s and used to support the 1994 and 
1999 proposed listing determinations, as masked and aggregated per 
Table 1 of the June 2003 settlement agreement with the Magruder 
plaintiffs.
--Split sample analytical data submitted by the Color Pigments 
Manufacturing Association (CPMA), in a letter dated April 20, 1994 from 
J. Lawrence Robinson of CPMA to Ed Abrams of EPA.
--The Toxics Release Inventory (TRI) for Reporting Year 2000.
--The European Union (EU)'s directive for a community ban on 
azocolourants (76/769/EEC, Annex I, point 43), relating to restrictions 
on the marketing and use of certain dangerous substances and 
preparations (azocolourants).
--Public comments without CBI claims submitted on the 1994 and 1999 
proposed listing determinations.
--Colour Index 2.0, Intermediates Database, Third Edition, July 1999.
--Kirk-Othmer Encyclopedia of Chemical Technology, Fourth Edition, 
2001.
--The Stanford Research Institute (SRI)'s 2000 Directory of Chemical 
Producers.
--Information provided by trade associations (CPMA and ETAD) in 2002-
2003 regarding the status of dye, pigment and FD&C facilities 
potentially generating the wastes of concern.
--Information provided by trade associations (CPMA and ETAD) in 2002-
2003 regarding onsite waste management units for dyes and/or pigments 
manufacturers potentially generating the wastes of concern.
--Dyes and/or pigments manufacturers' websites.

III. Approach Used in This Proposed Listing

A. Summary of Today's Action

    In hazardous waste listings promulgated by EPA, we typically 
describe the scope of the listing in terms of the waste material and 
the industry or process generating the waste. However, in today's rule, 
we are proposing to use a newly developed ``mass loadings-based'' 
approach for listing dyes and/or pigments production wastes. In a mass 
loadings-based listing, a waste would be hazardous once a determination 
is made that it contains any of the constituents of concern at or above 
specified mass-based levels of concern.
    In this proposed rule, we identify constituents of concern likely 
to be present in nonwastewaters which may pose a risk above specified 
mass loading levels. Using risk assessment tools developed to support 
our hazardous waste identification program, we assessed the potential 
risks associated with the constituents of concern in plausible waste 
management scenarios. From this analysis, we developed ``listing 
loading limits'' for each of the constituents of concern.
    If you generate any dyes and/or pigments production nonwastewaters 
addressed by this proposed rule, you would be required either to 
determine whether or not your waste is hazardous or assume that it is 
hazardous as generated under today's proposed K181 listing. (Note, we 
are proposing that if wastes are otherwise hazardous due to an existing 
listing in Sec. Sec.  261.31-33 or the hazardous waste characteristics 
in Sec. Sec.  261.21-24, the listing under K181 would not apply.) We 
are proposing a three-step determination process. The first step is a 
categorical determination where you would determine whether your waste 
falls within the categories of wastes covered by the listing (e.g., 
nonwastewaters generated from the production of dyes and/or pigments 
that fall within the product classes of azo, triarylmethane, perylene 
or anthraquinone) and whether any of the regulated constituents could 
be in your waste. If you determine under this first step that your 
waste meets the categorical description of K181 and that your waste may 
contain any K181 constituent, you would then in the second step 
determine whether your waste meets the numerical standards for K181 
(e.g., compare the mass loading of the regulated constituents in your 
waste to the numerical standards). Your waste

[[Page 66176]]

would be a listed hazardous waste if it contains any of the 
constituents of concern at a mass loading equal to or greater than the 
annual hazardous mass limit identified for that constituent. Under the 
proposed approach, all waste handlers may manage as nonhazardous all 
wastes generated up to the loading limit, even if the waste 
subsequently exceeds one or more annual mass loading limits. The 
detailed descriptions of the steps you would be required to follow to 
demonstrate that your waste does not exceed the K181 listing limits is 
presented in section V. Finally, in the third step, you would be able 
to determine whether your waste is eligible for a conditional exemption 
from the K181 listing. You would need to demonstrate that your waste 
does not exceed a higher loading limit for one constituent and that it 
is being disposed of a landfill subject to design standards set out in 
Sec.  258.40, Sec.  264.301, or Sec.  265.301.

B. Why Is a Mass Loadings-Based Approach Being Used for This Listing?

    We have previously proposed two concentration-based listing 
determinations that were similar to today's proposal of a mass 
loadings-based listing. These proposals (the 1999 dyes and pigments 
listing proposal and the 2001 paint listing proposal) identified 
concentrations that would have served as listing levels for the 
constituents of concern for those wastes. Both proposals dealt with 
industries that generate highly variable wastes. We believed these 
proposals added a valuable level of flexibility to the listings, by 
clarifying the levels at which the wastes of concern began to pose risk 
that warranted hazardous waste control. These levels would have served 
as both pollution prevention goals, whereby facilities could reengineer 
their processes to minimize specific risks, and built-in delisting 
levels, allowing generators to exit the Subtitle C system without 
invoking the rulemaking process required by the current Delisting 
Program.
    As we assessed this approach, we concluded that a mass loadings-
based approach to listing dyes and/or pigments production wastes as 
hazardous has all of the advantages of a concentration-based listing. 
For example, a mass loadings-based approach allows generators to 
evaluate the variable wastes they generate individually for hazard, so 
only wastes that are hazardous are listed. As a result, there should be 
less burden on dyes and/or pigments manufacturers than would be imposed 
by a traditional listing that would bring entire wastes into the 
hazardous waste system, regardless of the amount of constituents found 
in wastes generated by individual generators. Also, a mass loadings-
based listing approach may provide an incentive for hazardous waste 
generators to modify their manufacturing processes. For example, if a 
manufacturer has a listed hazardous waste based on constituent-specific 
mass loading levels established by EPA, the generator knows that if the 
wastes' mass loading levels are reduced below the regulatory level due 
to raw material substitution or process change, the waste would not be 
regulated as a listed hazardous waste. Therefore, the generator may 
decide to substitute raw materials in order to generate a nonhazardous 
waste. This approach encourages waste minimization and reduced use of 
toxic constituents, goals of both RCRA and the Pollution Prevention Act 
of 1990 (42 U.S.C. 13101 et seq., Pub. L. 101-508, November 5, 1990).
    Section 1003 of RCRA states that one goal of the statute is to 
promote protection of human health and the environment and to conserve 
valuable material and energy resources by ``minimizing the generation 
of hazardous waste and the land disposal of hazardous waste by 
encouraging process substitution, materials recovery, properly 
conducted recycling, and reuse and treatment.'' Section 1003 further 
provides that it is a national policy of the United States that, 
whenever feasible, the generation of hazardous waste is to be reduced 
or eliminated as expeditiously as possible.
    The Pollution Prevention Act of 1990 provides a hierarchy of 
approaches. Pollution should be prevented or reduced; wastes that 
cannot be prevented should be recycled or reused in an environmentally 
safe manner; wastes that cannot be prevented/reduced or recycled should 
be treated; and disposal or release into the environment should be 
chosen only as a last resort. If EPA provides a mass loadings-based 
target in the listing, generators would have regulatory and economic 
incentives to meet the reduced levels.
    The mass loading approach also offers two additional advantages. It 
will improve environmental protection by capturing large volume, dilute 
wastes that would not be regulated under a concentration-based 
approach. Also, since it requires less data from individual facilities, 
it allows us to move forward on the last of the HSWA-mandated listings 
without complete resolution of the Magruder CBI litigation.
    While this approach represents a new way of assessing wastes, we 
believe that the underlying concepts of assessing the mass of 
constituents of concern are similar to other EPA programs, including 
reporting that may be required for major sources under the CAA, for 
facilities subject to the TRI, and for facilities subject to NPDES 
permits. Many facilities potentially impacted by this listing will 
already be assessing constituent masses under these types of programs.
    EPA solicits public comment on all aspects of this mass-loading-
based approach to making a listing determination, including the impact 
of such an approach compared to approaches used in the past (e.g., 
concentration-based approach) and its usefulness as a means of 
encouraging pollution prevention.

C. What Wastes Are Generated by This Industry?

    As explained earlier in Section II.G, we estimate that currently 
there are 37 active dyes and/or pigments facilities operated by 29 
companies (excluding those no longer making in-scope dyes and/or 
pigments products and those due to be closed) based on the information 
provided by the trade associations (CPMA, ETAD and IACM) in 2002-2003.
    Based on the non-CBI portions of the 1992 RCRA Sec.  3007 survey 
data (as supplemented and updated) submitted by entities who were not 
plaintiffs in the Magruder litigation, organic dyes and/or pigments 
manufacturers mainly generate the following types of waste: Wastewaters 
(including process washes, equipment rinse waters, and other waste 
liquors), spent solvents, still bottoms, wastewater treatment sludge 
and other solid materials (such as emission control dust and fines, 
off-specification products, spent filter aids/cloths, process sludge 
and filter cake.)
    We estimate that the 37 dyes and/or pigments production facilities 
generate up to 22 million metric tons of wastewaters and 69,000 metric 
tons of nonwastewaters per year.\18\ Our estimates of wastewater 
generation rates were based on rates reported in NPDES permits for 
those facilities that discharge directly to surface water. For 
facilities that discharge their wastewaters indirectly through POTWs, 
we estimated their wastewater generation rates using data compiled by

[[Page 66177]]

the Office of Water in support of the OCPSF effluent guidelines 
development process. We estimated nonwastewater generation rates by 
applying engineering estimates of wastewater treatment sludge 
generation rates. Wherever possible, we used facility-specific 
generation rates, including those provided in non-CBI public comments 
and non-CBI portions of Sec.  3007 surveys. Note that our estimates of 
nonwastewater generation rates do not include estimates of waste solids 
other than wastewater treatment sludges (e.g., filter solids, off-
specification products, etc.). Our review of the non-CBI Sec.  3007 
data show that these waste quantities are often significantly smaller 
than wastewater treatment sludge quantities generated at the same 
facilities. At the same time, our estimated nonwastewater quantities 
are likely to be somewhat overstated due to our use of conservative 
assumptions about the amount of sludge generated during wastewater 
treatment. Consequently, we believe that our estimates of wastewater 
treatment sludge volumes are large enough to encompass volumes of the 
other types of solids generated by these facilities.
---------------------------------------------------------------------------

    \18\ See ``Economic Assessment for the Proposed Loadings-Based 
Listing of Non-Wastewaters from the Production of Selected Organic 
Dyes, Pigments, and Food, Drug, and Cosmetic Colorants' in the 
public docket for today's proposed rule for a description of our 
waste quantity estimation.
---------------------------------------------------------------------------

D. How Are These Wastes Currently Managed?

    We used the following sources to characterize the management of 
those wastes covered by this listing determination:
    [sbull] Non-CBI portions of RCRA Sec.  3007 surveys submitted by 
facilities that are not plaintiffs in the Magruder litigation.
    [sbull] Non-CBI public comments on the 1994 and 1995 proposed 
listing determinations for this industry.
    [sbull] State agencies.
    [sbull] TRI.
    [sbull] Industry trade associations.
    [sbull] Facility Web sites.
    The non-CBI surveys (available in the docket for today's rule) 
provided limited historical data about the waste management practices 
performed by the surveyed facilities, including: Wastewater treatment 
in tanks, wastewater treatment and/or storage in surface impoundments, 
discharge of wastewaters to a POTW or under NPDES, solvent recovery, 
combustion of waste solids/liquids onsite or offsite, fuel blending in 
industrial furnaces, and disposal of nonwastewaters in nonhazardous 
landfills onsite or offsite, and disposal of nonwastewaters in 
hazardous offsite landfills.
    We explored a number of more recent publicly available data sources 
to update the non-CBI survey information on the waste management 
practices at the operating dyes and/or pigments production facilities 
and to understand current management practices at facilities whose 
survey data were unavailable due to the Magruder injunction. We 
reviewed non-CBI information from public commenters on the December 22, 
1994 and July 23, 1999 proposed rules. The commenters claimed that all 
the onsite land disposal units of concern (nonhazardous waste landfills 
and surface impoundments) described in the 1992 RCRA Sec.  3007 survey 
were equipped with protective liners, or had been replaced with tanks, 
or were closed or undergoing closure. (These comments have been placed 
in the docket for today's proposal.)
    In 2002 we contacted nine State agencies to learn about the 
existing status of onsite land disposal units located at potential dyes 
and/or pigments production facilities in those States.\19\ None of the 
State contacts identified any facilities with active onsite land 
disposal units, with the exception of a single facility slated for 
closure that was described as operating surface impoundments equipped 
with double high density polyethylene (HDPE) liners.
---------------------------------------------------------------------------

    \19\ See ``On-Site Waste Management Determination,'' dated May 
20, 2003 in the public docket for details.
---------------------------------------------------------------------------

    Furthermore, we reviewed the most recent available TRI data 
(reporting year 2000) for onsite and offsite chemical releases of 
interest at the dyes and/or pigments production facilities. As 
summarized in the Listing Background Document, the TRI data describes a 
variety of management practices, including: discharge to POTW or 
surface water; thermal treatment in offsite incinerators, cement kilns, 
energy recovery facilities, or fuel blenders; disposal in onsite 
landfills; disposal in offsite landfills; and shipment to waste brokers 
or treatment facilities.
    We also met with the three primary trade associations (CPMA, ETAD, 
and IACM) in December of 2002. The trade associations reviewed our 
compilation of available information regarding onsite waste management 
practices at known dyes and/or pigments production facilities. (See 
meeting summaries available in the public docket for today's proposed 
rule.) Both CPMA and ETAD collected additional information, and 
provided input on the status of those identified onsite waste 
management practices (copies available in the public docket for today's 
proposed rule). ETAD indicated that the only active onsite landfill was 
at a facility that treats waste by incineration prior to disposal. This 
is consistent with TRI reporting data, which show that the only 
constituents of concern that were disposed of in the onsite landfill 
were metals (presumably the organic constituents were effectively 
destroyed). Furthermore, ETAD confirmed that the production of dyes at 
this facility was a very small fraction of the onsite production 
processes. Thus, we believe that the use of this one onsite landfill 
was not representative of management practices for the waste we are 
evaluating. Based on all of this information, we concluded that all 
wastes of concern going to landfills are disposed of in offsite 
landfills. As discussed further in the following sections, we 
ultimately concluded that all of the landfilled wastes are placed in 
municipal solid waste landfills.
    Consistent with their comments on the 1994 and 1999 proposals, the 
trade associations asserted that there are currently no active unlined 
surface impoundments at operating dyes and/or pigments production 
facilities that receive untreated in-scope wastes, since the previously 
identified unlined or clay-lined onsite impoundments had been closed. 
The trade associations were also able to confirm that one production 
facility treats wastewater in an impoundment with double composite 
liners (including synthetic materials) and a leachate collection 
system, and that one other facility with a double-lined impoundment was 
scheduled to close.
    In a subsequent review of some facility websites, we discovered 
that one facility operates onsite surface impoundments. According to 
the State regulating authority contacted, these impoundments are clay-
lined and are used to store wastewater after treatment and prior to 
NPDES discharge. This facility is discussed in more detail in section 
IV.C.

E. What Waste Management Scenarios Did We Select for Risk Assessment 
Modeling?

    This section summarizes our findings and conclusions concerning 
current dyes and/or pigments production practices for nonhazardous 
waste management; the plausible waste management scenarios that we 
chose to model for the risk assessment; and why we did not model 
certain management practices.
    We chose to model three waste management scenarios based upon our 
review of the current waste handling practices reported in the publicly 
available data and the plausibility that these scenarios represent 
actual practices that are used or could be used for disposal of dyes 
and/or pigments production wastes. The scenarios that

[[Page 66178]]

we chose are nonwastewaters disposed in nonhazardous municipal solid 
waste landfills; wastewaters stored and treated in on-site tanks prior 
to discharge to a POTW or under a NPDES permit; and wastewaters managed 
in onsite surface impoundments prior to discharge to a POTW or under a 
NPDES permit. The general criteria for selection of plausible waste 
management scenarios and the rationale for choosing each of these 
scenarios are described in this section.
1. Plausible Waste Management Selection Criteria and Modeling 
Considerations
    Our regulations at Sec.  261.11(a)(3)(vii) require us to consider 
the risk associated with ``the plausible types of improper management 
to which the waste could be subjected'' because exposures to wastes 
(and therefore the risks involved) will vary by waste management 
practice. The choice of which ``plausible management scenario'' (or 
scenarios) to use in a listing determination depends on a combination 
of factors which are discussed in general terms in our policy statement 
on hazardous waste listing determinations contained in the first 
proposed Dyes and Pigments Listing Determination (59 FR 66072, December 
22, 1994). We have applied this policy in all subsequent listings and 
believe it is appropriate to continue to apply it here.
    Our approach to selecting waste management scenarios to model for 
risk analysis is to examine current industry management practices; 
assess whether or not other practices are available to the industry; 
and to decide what practices the industry would reasonably be expected 
to use. There are common waste management practices, such as 
landfilling, which we generally presume are plausible for solid wastes 
and which we will evaluate for potential risk. There are other 
practices which are less common, such as land treatment, which we 
consider plausible only where the disposal methods have been reported 
to be practiced. Where a practice is actually reported in use, that 
practice is generally considered ``plausible'' and may be considered 
for potential risk. In some situations, potential trends in waste 
management for a specific industry suggest we will need to project 
``plausible'' management even if it is not currently in use in order to 
be protective of potential changes in management and therefore in 
potential risk. We then evaluate which of these current or projected 
management practices for each waste are likely to pose significant risk 
based on an assessment of exposure pathways of concern associated with 
those practices.
2. Selection of Waste Management Scenarios for Risk Assessment Modeling 
of Dyes and/or Pigments Nonwastewaters
    The majority of nonwastewaters are landfilled. Based on information 
available as we started our risk analyses, we decided to model disposal 
of nonwastewaters in both offsite municipal solid waste landfills and a 
small number of onsite and offsite nonhazardous industrial waste 
landfills. After we began these analyses, ETAD submitted additional 
information indicating that our initial information regarding an onsite 
landfill was not relevant, as the facility operating that landfill 
treats waste by incineration prior to disposal. In addition, we 
obtained information from the State of Illinois regarding the offsite 
landfill that we had initially identified as an industrial landfill, 
clarifying that this landfill in fact accepts municipal wastes. 
Consequently, we decided that disposal in an industrial landfill is not 
a plausible management practice for these wastes, and we are basing our 
proposed listing decision solely on our assessment of disposal in 
MSWLFs. Upon receipt of this information, we modified our subsequent 
modeling runs to reflect a landfill distribution that was solely made 
up of MSWLFs.
    The primary difference between modeling industrial nonhazardous 
landfills and municipal landfills is that industrial nonhazardous 
landfills are slightly smaller than municipal landfills so the 
quantities of dyes and/or pigments production waste modeled in an 
industrial landfill would be a relatively larger proportion of the 
total waste quantities going into the unit. Given the linear nature of 
our modeling for the organic loading limits, we do not believe that the 
model results would differ significantly if the landfill size 
distribution reflected industrial landfills. The preliminary runs that 
we conducted on a distribution of industrial and municipal landfills 
reflected our preliminary (and incorrect) characterization of some of 
the currently used landfills as industrial nonhazardous landfills. 
These preliminary results were very similar to the results for MSWLFs 
only (that serve as the basis for today's proposal).
    We modeled three liner scenarios: unlined, clay-lined, and 
synthetic-lined landfills. The risk assessment in section III.G.2.d.i 
contains more details about our risk modeling for landfills and the 
three liner scenarios. In past listings, EPA has not included the 
effect of liners in the modeling of releases from landfills. 
Previously, we generally assumed that liners may fail over the long 
term, and therefore we modeled landfills as if they were unlined. We 
have been reluctant to take liners into account due to the 
uncertainties in the long term efficacy of liners and because we lacked 
data that we could use to project infiltration rates from a lined 
unit.\20\
---------------------------------------------------------------------------

    \20\ For example, we argued this most recently in the 
chlorinated alphatics listing, where we concluded that uncertainties 
regarding the long-term effectiveness of landfill liners were 
sufficient to support a decision to list. We emphasized, however, 
that this decision was specific to a waste containing high 
concentration of mercury, a highly toxic, very persistent 
constituent. 65 FR 67101 (Nov. 8, 2000).
---------------------------------------------------------------------------

    More recently, EPA has modeled reduced infiltration rates for lined 
landfills to support the Guide for Industrial Waste Management. The 
Industrial Waste Evaluation Model (IWEM) incorporated models to 
evaluate the groundwater protection afforded by various liner 
systems.\21\ For modeling composite liners, the IWEM used empirical 
data for infiltration rates collected from lined landfills. As part of 
the effort to characterize and develop distributions for the 
infiltration rates through liners, EPA collected information for 
nonhazardous waste management unit liner systems (i.e., the rates of 
leachate infiltration through liners).\22\ EPA is today proposing to 
use data collected in this effort to construct distributions of 
infiltration rates for modeling of Subtitle D MSWLFs.
---------------------------------------------------------------------------

    \21\ Industrial Waste Management Evaluation Model (IWEM) 
Technical Background Document. EPA530-R-02-012, U.S. EPA, August 
2002. See also http://www.epa.gov/epaoswer/non-hw/industd/iwem_tbd.htm.
    \22\ ``Characterization of Infiltration Rate Data to Support 
Groundwater Modeling Efforts,'' Draft Final TetraTech, Inc. 
September 28, 2001.
---------------------------------------------------------------------------

    We believe it is appropriate to consider liners in today's listing 
determination for several reasons. First, we have no indication that 
these wastes are (or are likely to be) landfilled in cells without 
liners. In comments on the earlier listing proposals for dye and 
pigment wastes, industry groups (ETAD and CPMA) stated that industry 
does not use unlined landfills; ETAD went further and identified the 
landfills being used by their members and described the liner systems 
in place at these landfills. Second, CERCLA liability concerns create 
strong incentives against the operation of such units by landfill 
owners and against the placement of these wastes in such units by waste 
generators. Third, our data show that the industry uses municipal solid 
waste landfills. These units have been subject to the Part 258 
standards

[[Page 66179]]

since the regulations were promulgated in 1991. Fourth, we previously 
have considered the attenuative properties of liners in prior listing 
determinations for surface impoundments (e.g., see the proposal for 
listing paint manufacturing wastes at 66 FR 10108, February 13, 2001), 
as well as in the Guide for Industrial Waste Management. Finally, we 
now have data describing infiltration rates through various liner 
systems, allowing us to build distributions reflective of real 
landfills. For these reasons, we believe it is now appropriate to 
assess the impact of liners on the attenuation of toxicants in waste 
management units, where such liners are widely used for the disposal of 
the wastes of interest. We request comments on this approach.
    Available data suggests that a relatively small portion of the 
nonwastewaters from dyes and/or pigments production are combusted and, 
consequently, that combustion is a plausible management method. We 
chose not to model combustion. In past listing determinations where we 
have attempted to assess risks from incineration, we found that the 
potential risks from the release of constituents through incineration 
would be at least several orders of magnitude below potential air risks 
from releases from tanks or impoundments (see listing determination for 
solvent wastes at 63 FR 64371, November 19, 1998). Further, it is 
difficult to model what goes into combustion units in relation to the 
residual constituents that are released from the combustion unit either 
in ash or air.\23\ We believe the existing and proposed air regulation 
can effectively regulate these combustion units, as described in 
section II.E.
---------------------------------------------------------------------------

    \23\ Whle other products of incomplete combustion may present 
possible risks, it is difficult for us to assess this potential for 
the chemicals of concern.
---------------------------------------------------------------------------

    Furthermore, we did not model management in Subtitle C landfills. 
Subtitle C modeling is unnecessary, since we modeled a less protective 
MSWLF scenario. Finally, we also did not model management scenarios 
that involved recycling. We had no information to lead us to believe 
that such practices involved land placement. As explained below, we 
modeled air releases from wastes in tanks and found no risks warranting 
listing. We think secondary materials stored in tanks prior to 
recycling would pose similarly low risks.
3. Selection of Waste Management Scenarios for Risk Assessment Modeling 
of Dyes and/or Pigments Production Wastewaters
    As delineated in section III.D, the publicly available data showed 
a number of management scenarios of interest for wastewaters from 
production of dyes and/or pigments: management in tanks or surface 
impoundments prior to discharge to a POTW or under an NPDES permit; 
incineration; and fuel blending in industrial furnaces.
    We modeled two scenarios: (1) Onsite treatment of wastewater in 
tanks, and (2) onsite management of wastewaters in clay-lined and 
synthetic-lined surface impoundments. As described in the previous 
section, currently operating organic dyes and/or pigments production 
facilities manage their wastes in these types of units. We also modeled 
unlined surface impoundments, although we did not use these results as 
the basis for our listing determination. We believe unlined 
impoundments are unlikely to be utilized for untreated wastewater, not 
only because our data do not indicate that such units are currently in 
use, but also because storage or treatment in an impoundment without 
any kind of liner seems unlikely.
    For surface impoundments, EPA has recently relied on the 
effectiveness of liners in deciding not to list wastewaters from paint 
manufacturing.\24\ Although we did not try to model liner performance 
for paint wastewaters, we assumed that composite liners provide 
significant protection during the relatively short operational life of 
an impoundment (30 to 50 years). As noted in the final determination 
for paint manufacturing wastes, we believe that the level of protection 
afforded by a liner system would be significant (67 FR 16267). 
Furthermore, if leaks occurred during its operating life, the unit can 
be drained and repaired. Since we do not have data on infiltration 
rates for lined surface impoundments, we used calculated infiltration 
rates. This is the same approach used for the IWEM guidance, referenced 
above for lined landfills; see the Risk Background Document for today's 
proposal for more discussion.
---------------------------------------------------------------------------

    \24\ See the proposed rule at 66 FR 10108 (Feb. 13, 2001) and 
the final rule at 67 FR 16267 (Apr. 4, 2002).
---------------------------------------------------------------------------

    We believe it is appropriate to consider liners in modeling surface 
impoundments in today's listing determination for reasons similar to 
those noted for landfills in the above section. Specifically, our data 
indicate that the untreated wastewaters in scope are not (and are not 
likely to be) managed in impoundments without liners. Industry groups 
(ETAD and CPMA) have confirmed that there are no active unlined surface 
impoundments at operating dyes and/or pigments production facilities 
that receive untreated in-scope wastes. We believe it is less likely 
that unlined landfills would be in operation in the future, given 
liability concerns. Also, we are using an approach similar to that we 
used for describing infiltration rates through various liner systems 
for the IWEM guidance. We request comments on this approach.
    We did not assess discharges of wastewaters by dye and/or pigment 
facilities under NPDES permits or discharges to POTWs. The discharges 
to surface waters are regulated under the Clean Water Act by means of 
NPDES permits or national pretreatment standards. Many of these 
discharges are excluded from RCRA hazardous waste regulation. See 40 
CFR 261.4(a)(1) and (2). We also chose not to model combustion of 
wastewaters in incinerators, cement kilns or industrial furnaces. In 
the previous section on nonwastewaters, we explain the Agency's 
rationale for not modeling combustion or fuel blending. That rationale 
applies equally to wastewaters.

F. What Factors Did EPA Incorporate Into Its Quantitative Risk 
Assessment?

    In making listing determinations, the Agency considers the listing 
criteria set out in 40 CFR 261.11. The criteria provided in 40 CFR 
261.11(a)(3) include eleven factors for determining ``substantial 
present or potential hazard to human health and the environment.'' Nine 
of these factors, as described generally below, are incorporated into 
EPA's risk assessment for the wastes of concern:
    [sbull] Toxicity (Sec.  261.11(a)(3)(i)) is considered in 
developing the health benchmarks used in the risk assessment modeling.
    [sbull] Constituent concentrations (Sec.  261.11(a)(3)(ii)) and the 
quantities of waste generated (Sec.  261.11(a) (3)(viii)) are combined 
in the calculation of mass loading levels that pose a hazard.
    [sbull] Potential to migrate, persistence, degradation, and 
bioaccumulation of the hazardous constituents and any degradation 
products (Sec. Sec.  261(a)(3)(iii), 261.11(a)(3)(iv), 261.11(a)(3)(v), 
and 261.11(a)(3)(vi)) are all considered in the design of the fate and 
transport models used to determine the concentrations of the 
contaminants to which individuals are exposed.

[[Page 66180]]

    As discussed in the previous section, we considered two factors, 
plausible mismanagement and other regulatory actions ((Sec. Sec.  
261.11(a)(3)(vii) and 261.11(a)(3)(x)) in establishing the waste 
management scenario(s) modeled in the risk assessment.
    One of the remaining factors of the eleven listed in 261.11(a)(3) 
is consideration of damage cases (Sec.  261.11(a)(3)(ix)); this is 
discussed in section G.5 below. The final factor allows EPA to consider 
other factors as appropriate (Sec.  261.11(a)(3)(xi)).
    EPA conducted analyses of the risks posed by the wastes evaluated 
for this listing to determine the mass loadings of constituents that, 
if found in dyes and/or pigments production wastes, would meet the 
criteria for listing set forth in Sec.  261.11(a)(3). Section G 
discusses the human health risk analyses and ecological risk screening 
analyses EPA conducted to support our proposed listing determinations 
for dyes and/or pigments production wastes. We consider the risk 
analyses in developing our listing decisions for each of the wastes.

G. Overview of the Risk Assessment

    We conducted a risk assessment to calculate the mass loadings of 
individual constituents that can be present in waste and remain below a 
specified level of risk to both humans and the environment.
    To establish these listing levels, we: (1) Selected constituents of 
potential concern in wastes from dyes and/or pigments production, (2) 
evaluated plausible waste management scenarios (as described previously 
in section III.E), (3) calculated exposure concentrations by modeling 
the release and transport of the constituents from the waste management 
unit to the point of exposure, and (4) calculated waste constituent 
loadings that are likely to pose unacceptable risk. In addition, we 
conducted a screening level ecological risk assessment to ensure that 
the loading limits were protective of the environment.
    The following sections explain the selection of the constituents 
that we evaluated in the risk assessment and present an overview of the 
analysis we used to calculate risk-based listing levels for 
nonwastewaters and wastewaters from dyes and/or pigments production. 
Details of the risk assessment are provided in the Risk Assessment 
Background Document, which is in the docket for today's rule.
1. How Did EPA Chose Potential Constituents of Concern?
    Our overall goal in choosing potential constituents of concern was 
to identify a list of chemicals that could reasonably be expected to be 
associated with wastes from the production of azo, triarylmethane, 
perylene or anthraquinone dyes or pigments and that could be derived 
entirely from sources that were not restricted by the Magruder 
injunction.
    We first created a primary list of all of the chemicals identified 
in a series of non-CBI data sources, and then removed from that list 
those compounds not expected to have toxicity benchmarks and those 
chemicals not expected to be directly linked with the manufacture of 
the dyes and pigments of concern. This process ultimately resulted in 
the identification of 35 constituents of concern (CoC) (see Table III-1 
below) that we further assessed via risk assessment. The details of 
this analysis are described in ``Background Document: Development of 
Constituents of Concern for Dyes and Pigments Listing Determination,'' 
available in the docket for today's proposal.

         Table III-1.--Dyes and Pigments Constituents of Concern
------------------------------------------------------------------------
       Chemical compound                 Synonyms               CAS
------------------------------------------------------------------------
Aminoanthraquinone.............  2-Aminoanthraquinone...        117-79-3
Aniline........................  Benzenamine;                    62-53-3
                                  aminobenzene.
o-Anisidine....................  2-Methoxyaniline, 2-            90-04-0
                                  methoxybenzenamine.
Azobenzene.....................  Diphenyldiazene,               103-33-3
                                  diphenyl diimide.
Barium.........................  .......................       7440-39-3
Benzaldehyde...................  .......................        100-52-7
Benzidine......................  .......................         92-87-5
4-4'-bis(dimethylamino)          .......................         90-94-8
 benzophenone.
4-Chloroaniline................  p-Chloroaniline........        106-47-8
Copper.........................  .......................       7440-50-8
p-Cresidine....................  2-Methoxy-5-                   120-71-8
                                  methylbenzenamine, 3-
                                  amino-4-methoxytoluene.
p-Cresol.......................  4-Methylphenol.........        106-44-5
1,2-Dichlorobenzene............  o-Dichlorobenzene......         95-50-1
3,3'-Dichlorobenzidine.........  3,3'-Dichlorobiphenyl-          91-94-1
                                  4,4'-ylenediamine.
3,3'-Dimethoxybenzidine........  Dianisidine............        119-90-4
2,4-Dimethylaniline............  2,4-Xylidine...........         95-68-1
N,N-Dimethylaniline............  N,N-Dimethylbenzenamine        121-69-7
3,3-'Dimethylbenzidine.........  4,4'-bi-o-Toluidine,           119-93-7
                                  diaminoditolyl.
Diphenylamine..................  N-Phenylbenzeneamine...        122-39-4
Formaldehyde...................  .......................         50-00-0
Lead...........................  .......................       7439-92-1
Methanol.......................  .......................         67-56-1
4,4'-Methylenedianiline........  p-p'-Diaminodiphenyl           101-77-9
                                  methane; 4,4'-
                                  methylene-
                                  bis[benzenamine].
Naphthalene....................  .......................         91-20-3
5-Nitro-o-anisidine............  2-methoxy-5-                    99-59-2
                                  nitroaniline.
5-Nitro-o-toluidine............  2-methyl-5-                     99-55-8
                                  nitroaniline; 2-amino-
                                  4-nitrotoluene.
Phenol.........................  .......................        108-95-2
1,2-Phenylenediamine...........  o-phenylenediamine, 2-          95-54-5
                                  aminoaniline.
1,3-Phenylenediamine...........  3-Aminoaniline, m-             108-45-2
                                  phenylenediamine.
1,4-Phenylenediamine...........  4-aminoaniline; p-             106-50-3
                                  Phenylenediamine.
Sodium nitrite.................  .......................       7632-00-0
Toluene-2,4-diamine............  4-m-tolylenediamine,            95-80-7
                                  2,4-diaminotoluene, 4-
                                  methyl-m-
                                  phenylenediamine.
o-Toluidine....................  2-toluidine; 2-                 95-53-4
                                  aminotoluene.
p-Toluidine....................  4-toluidine; 4-                106-49-0
                                  aminotoluene.

[[Page 66181]]

 
Zinc...........................  .......................       7440-66-6
------------------------------------------------------------------------

    Our primary data sources (described in section II.H of this notice 
and in the public docket for today's rule) used to develop the CoC 
lists include:
    [sbull] Sampling and analytical data collected by EPA (as 
summarized in Table 1 of the Magruder consent order) and split sample 
analytical data compiled and provided by CPMA. These data characterized 
wastes generated from dyes and/or pigments production.
    [sbull] Non-CBI RCRA Sec.  3007 survey data characterizing wastes 
from dyes and/or pigments production.
    [sbull] A list of 22 aromatic amines associated with azo dyes 
regulated by the European Union.
    [sbull] Intermediates associated with dye and pigment products 
reported to be manufactured in the U.S. in the ``Colour Index,'' Third 
Edition.
    [sbull] Public comments on the prior 1994 and 1999 proposed listing 
determinations for dyes and pigment wastes.
    [sbull] TRI releases reported by known manufacturers of dyes and/or 
pigments impacted by this proposal.
    We found data linking each of the 35 CoCs listed above to dyes and/
or pigments manufacture from at least two (and generally from at least 
four) of these data sources, and often found additional corroborating 
data from other more general encyclopedia and chemical dictionaries. In 
addition, we found toxicity benchmark data for each of these CoCs, 
allowing us to conduct risk assessment modeling of these compounds. As 
an example, we identified 4-chloroaniline as a CoC because (1) it was 
detected in our and CPMA's analytical data; (2) it was confirmed as 
present in dyes and/or pigments wastes in public comments; (3) it was 
reported to be released by known dyes and/or pigments manufacturers in 
the TRI; (4) it is regulated by the European Union as an aromatic amine 
linked to azo dyes; and (5) we identified toxicity benchmarks that 
allowed us to conduct risk assessment modeling of this compound.
2. What Was EPA's Approach to Conducting Human Health Risk Assessment?
    The risk analysis for the dyes and/or pigments production wastes 
estimates the mass loadings of individual constituents that can be 
present in each waste and still provide a specified level of protection 
to human health and the environment. The risk assessment evaluates 
waste management scenarios that may occur nationwide. We selected a 
national analysis that captures variability in meteorological and 
hydrogeological conditions for this listing determination because 
facilities that manage the wastes of interest are found in many areas 
of the country.
    For this listing determination, we defined the target level of 
protection for human health to be an incremental lifetime cancer risk 
of no greater than one in 100,000 (10-5) for carcinogenic 
chemicals and a hazard quotient of 1.0 for noncarcinogenic chemicals. 
The hazard quotient is the ratio of an individual's chronic daily dose 
of a constituent to the reference dose for that constituent, where the 
reference dose is an estimate of the daily dose that is likely to be 
without appreciable risk of deleterious effects over a lifetime.
    To determine the allowable mass loadings for constituents of 
concern, we used a probabilistic analysis to calculate the exposure to 
nearby residents from disposal of those constituents in the types of 
waste management units used by the dyes and pigments industries. We 
then set the allowable loading level such that the exposure to each 
constituent would not exceed the target level of protection for 90 
percent of the nearby residents (adults and children). Thus, the 
allowable mass loadings meet a target cancer risk level of 
10-5 or hazard quotient of one for 90 percent of the 
receptor scenarios we evaluated. We calculated estimates of exposure in 
the upper end of the distribution (i.e., at or above the 90th 
percentile), while avoiding estimates that are beyond the true 
distribution. EPA guidance for risk characterizations states that ``the 
`high end' of the risk distribution (generally the area of concern for 
risk managers) is conceptually above the 90th percentile of the actual 
(either measured or estimated) distribution. This conceptual range is 
not meant to precisely define the limits of this descriptor, but should 
be used by the assessor as a target range for characterizing `high-end 
risk.' '' \25\ Therefore, a high-end estimate that falls within the 
range (at or above the 90th percentile but still realistically on the 
distribution) is a reasonable input to a decision.
---------------------------------------------------------------------------

    \25\ ``Guidance on Risk Characterization for Risk Managers and 
Risk Assessors,'' by then Deputy Administrator F. Henry Habicht, 
1992.
---------------------------------------------------------------------------

    We believe that the 90th percentile levels from our probabilistic 
analysis are appropriate to set the levels for this mass loadings-based 
listing. The dyes and/or pigments production waste that remains 
nonhazardous at the proposed levels would pose risks below that 
indicated by the benchmark risk level at the 90th percentile. We also 
used the 90th percentile risk levels in two prior proposed 
concentration-based listings. See the proposed rules for wastes from 
paint manufacturing (66 FR 10060, February 13, 2001) and two dyes and/
or pigments wastes (64 FR 40192, July 23, 1999).\26\
---------------------------------------------------------------------------

    \26\ For traditional listing decisions, we have considered a 
range of probabilistic results at or above the 90th percentile, 
e.g., see the proposed listings for wastes from the production of 
chlorinated aliphatics (64 FR 46476, August 25, 1999) and inorganic 
chemicals (65 FR 55684 September 14, 2000).
---------------------------------------------------------------------------

    A probabilistic analysis calculates distributions of results (in 
this case a protective mass loading for each constituent) by allowing 
some of the parameters used in the analysis to have more than one 
value. The model is run numerous times (for this analysis we generally 
ran the model 10,000 times), each time with different values selected 
from the distributions of input parameters. A parameter is any one of a 
number of inputs or variables (such as distance between the waste 
management unit and the receptor) required for the fate and transport 
and exposure models and equations that EPA uses to assess risk. In the 
probabilistic analysis, we vary sensitive parameters for which 
distributions of data are available.
    Parameters varied for this analysis include waste management unit 
size, parameters related to the location of the waste management unit 
such as climate and hydrogeologic data, location of the receptor, and 
exposure factors (e.g., drinking water ingestion rates). In some cases, 
to maintain the inherent correlation between parameters, we treat 
multiple parameters as a single parameter for the purpose of conducting 
the analysis. We do this to prevent inadvertently combining parameters 
in our analysis in ways that are unrealistic. For example, we treat 
environmental setting (location) parameters such as climate, depth to 
groundwater, and

[[Page 66182]]

aquifer type as a single set of parameters. We believe that, for 
example, allowing the climate from one location to be paired with the 
depth to groundwater from another location could result in a scenario 
that would not represent reality.
    We set some of the parameters in the probabilistic analysis as 
constant values because (1) there are insufficient data to develop a 
probability distribution function, and (2) from previous listing 
determinations, the analysis has been shown to be insensitive to the 
value of the parameter.
    a. What Waste Management and Release Scenarios Were Modeled?
    We evaluated three waste management units that represent plausible 
management scenarios that are likely destinations for dyes and/or 
pigments production waste. The modeled units were nonhazardous 
landfills, surface impoundments, and wastewater treatment tanks. 
Section III.E describes in detail why these waste management units were 
selected for evaluation in the risk assessment. The waste management 
scenarios for each of these units were created using publicly available 
information reported and provided by industry on the management of 
their dyes and/or pigments production wastes. In addition, we used 
information on the national distributions of waste management unit 
characteristics (e.g., size and waste capacity) collected with surveys 
conducted for other rulemakings to establish the characteristics of the 
waste management units.
    As noted in section III.E.2, we originally believed that facilities 
managed dyes and/or pigments wastes in onsite or offsite nonhazardous 
landfills that are not MSWLFs, i.e., Subtitle D ``industrial 
landfills.'' Thus, our initial modeling of landfill scenarios used a 
distribution of landfills that included a small fraction of industrial 
units (91 percent MSWLFs and 9 percent industrial landfills). Further 
review of the available information showed that we did not have any 
evidence that industrial landfills were currently in use for these 
wastes. Therefore, subsequent risk analyses used a landfill 
distribution made up of MSWLFs only. As previously discussed, the 
differences between the industrial and MSW landfill scenarios were 
relatively minor; this change did not have a significant impact on the 
risk results. Also, in the initial analyses, we inadvertently used a 
landfill life of forty years, while for subsequent modeling we 
corrected this to a thirty-year life. We have used a thirty-year life 
in recent listings, and we believe a thirty-year life is more 
appropriate for MSWLFs.\27\ Comparisons of some modeling runs using the 
different landfill lives and distributions showed that these were not 
significant factors.
---------------------------------------------------------------------------

    \27\ ``Calculation of Municipal Landfill Active Life.'' U.S. 
EPA. November 10, 2003.
---------------------------------------------------------------------------

    We have developed distributions for each type of waste management 
unit that characterizes the units' capacities and dimensions (e.g., 
area and depth). These dimensions and operating characteristics are 
important determinants of the extent to which a contaminant may be 
released from the unit. We assume specific operational lifetimes 
(between 30-50 years) for each type of waste management unit, as well 
as different lengths of time during which constituents are assumed to 
be released from these units.
    We determined that releases from all of the waste management units 
(tanks, landfills, and surface impoundments) can occur through release 
of vapor emissions to the air. We evaluated air releases for organic 
constituents that had a toxicity benchmark for the inhalation exposure 
route. Seventeen of the 30 organic constituents assessed did not have 
adequate benchmarks for such analysis. We did not assess the metals for 
vapor emissions because they do not volatilize. We assumed that 
particulate emissions to the air from solids disposed in landfills 
would be minimal because municipal landfills are typically required to 
have daily cover (see regulations for daily cover at Sec.  258.21). 
Therefore, we did not consider particulate emissions for either organic 
or metal constituents in this assessment.
    For landfill and surface impoundment scenarios, we determined that 
releases could also occur through leaching of waste contaminants into 
the subsurface to both groundwater and surface water. The Agency 
assumed that landfills and surface impoundments followed standard 
construction and operational requirements such that runoff and water 
erosion did not occur. We assumed that tanks were sufficiently 
impermeable that they were highly unlikely to release any significant 
amount of waste to the subsurface.
    b. What Exposure Scenarios did EPA Evaluate?
    We assumed that exposure from vapor emissions would be through 
inhalation of ambient air, while exposure to contaminants in 
groundwater would be through drinking and through inhalation of 
volatile contaminants released during showering. We did not add the 
risks from vapor releases and from groundwater contamination because 
vapor releases reach nearby residents in a matter of hours, while 
releases to groundwater take many years to migrate to nearby wells. For 
adults, we did add risks from both drinking and showering with 
contaminated groundwater. We assumed small children took baths instead 
of showers, so we did not model the risk of inhaling volatile chemicals 
while showering with groundwater for them. Previous analyses have 
indicated that exposure to chemicals volatilized from groundwater 
during household uses other than showering are very low compared to 
exposures in the bathroom during and immediately after showering. 
Therefore, we did not model exposure from other household uses of 
groundwater.
    As noted above, particulate emissions to the air from solids 
disposed in landfills would be minimal because municipal landfills are 
required to have daily cover. In addition, releases from landfills or 
surface impoundments through volatilization are unlikely to lead to 
significant deposition and food chain uptake because this release 
pathway would only be significant for constituents that are more 
volatile than those of concern for dyes and/or pigments production 
wastes.
    c. How did EPA Quantify Each Receptor's Exposure to Contaminants?
    The amount of contaminant ingested or inhaled by a receptor is a 
function of the concentration of the contaminant in the water or air 
and various exposure factors, such as how much drinking water the 
receptor consumes each day (the intake rate), how much air the receptor 
breathes, the number of years the receptor is exposed (the exposure 
duration), and how often the receptor is exposed (the exposure 
frequency). Another important exposure factor affecting risk is the 
body weight of the receptor, since most toxicity measures are expressed 
as dose per unit of body weight. Our primary source of exposure factors 
is the ``Exposure Factors Handbook'' published by EPA in August 1997.
    The one situation where we do not calculate dose to determine risk 
is the case when we use the reference concentrations (RfCs) to assess 
health impacts. RfCs are expressed as ambient air concentrations which 
are protective of human health; as such, they already have the 
appropriate exposure factors (inhalation rate, body weight) included in 
their derivation.
    Children are an important sub-population to consider in a risk 
assessment because, compared to adults, children drink more water and 
breathe more air per unit of body weight.

[[Page 66183]]

Therefore, their dose per unit of body weight at any particular time is 
higher than an adult's. To evaluate childhood exposure for this 
analysis, we evaluated a child whose exposure begins at a random age 
between one and six years old. We then aged the child for the number of 
years defined by the randomly selected exposure duration. As children 
mature, their physical characteristics and behavior patterns change. To 
capture these changes in the analysis, we divided the life of a 
resident who moved into the home as a child into several cohorts: 
cohort 1 (ages 1-5), cohort 2 (ages 6 to 11), cohort 3 (ages 12 to 19), 
and cohort 4 (ages 20 to 70). Each cohort has a discrete distribution 
of exposure parameters that are used to calculate exposure to an 
individual, so our analysis updated the exposure factors as the child 
aged from one cohort to another.
    d. How Did EPA Predict the Release and Transport of Constituents 
From a Waste Management Unit to Receptor Locations?
    We conducted contaminant fate and transport modeling to determine 
what the concentrations of contaminants will be in the air or 
groundwater that the receptor comes into contact with. These 
concentrations are called ``exposure point concentrations.'' There are 
a number of computer-based models and sets of equations that we use to 
predict exposure point concentrations. In the following sections, we 
briefly discuss these models and equations and their application in the 
risk analyses.
    (i) Predicting Release of Constituents. Landfill Partitioning 
Model. The landfill model is designed to simulate the gradual filling 
of an active landfill and the long-term releases from the active and 
closed landfill cells. We also used this model in the February 13, 2001 
proposed listing determination for paint production wastes (66 FR 
10060). The design assumes that the landfill is composed of a series of 
vertical cells of equal volume that are filled sequentially. We assumed 
that each cell requires one year to be filled. The formulation of the 
landfill model is based on the assumption that the contaminant mass in 
the landfill cells might be linearly partitioned into the aqueous, 
vapor, and solid phases. The partitioning coefficients are based on 
those reported in literature, and are listed in the Risk Assessment 
Background Document. The model simulates the active lifetime of the 
landfill (30 years) and continues simulating releases until less than 1 
percent of the peak mass is left or for a total of 200 years, whichever 
occurs first.
    We assumed three different liner scenarios, unlined landfills where 
the underlying substrate is native soil (represented by a national 
distribution of soil types), landfills with compacted clay liners, and 
landfills with composite liners. For the unlined and clay-lined 
scenarios, we used EPA databases of landfill infiltration rates and 
regional recharge rates (calculated using the Hydrologic Evaluation of 
Landfill Performance (HELP) water-balance model). For the composite 
liner scenario, we used empirical distributions of infiltration rates.
    The empirical infiltration rates were compiled from measured leak 
detection system flow rates for composite lined landfill cells.\28\ 
There are several broad categories of liner types now in use. A typical 
composite liner is made up of a geosynthetic liner (GM) and a clay 
liner of some kind underneath. The clay liner is often a compacted clay 
liner (CCL). A CCL is composed of natural mineral materials, a 
bentonite-soil blend, and other materials placed and compacted in 
layers to build up a thick liner system (typically at least two feet 
thick). Another clay-based liner is a geosynthetic clay liner (GCL). A 
GCL is a relatively thin layer of processed clay (typically bentonite) 
either bonded to a geomembrane or fixed between two layers of 
geotextile. GCLs were developed relatively recently and are typically 
used with a GM in a composite liner.
---------------------------------------------------------------------------

    \28\ ``Characterization of Infiltration Rate Data to Support 
Groundwater Modeling Efforts,'' Draft Final. TetraTech, Inc. 
September 28, 2001.
---------------------------------------------------------------------------

    In the composite liner scenario (annotated as SL) we modeled, we 
used a distribution of composite liners used at MSWLFs, including GM/
GCLs, geomembrane/compacted clay liners (GM/CCLs), and a few examples 
of other combinations of liners. In developing this distribution, we 
excluded infiltration data from nonmunicipal landfills (Subtitle C 
landfills and landfills that accepted specialized wastes, such as ash) 
because our data indicate that all landfills reported to be used by 
dyes and/or pigments manufacturers are municipal solid waste landfills, 
and because we believe it is not appropriate to include data from units 
that accept very different waste (e.g., hazardous wastes) and have 
different design requirements. In addition, we tried to use 
infiltration data that represented infiltration through a composite 
liner, i.e., a combination of synthetic and clay liner that is 
consistent with the design requirements in Sec.  258.40. For this 
reason, we excluded infiltration data that only represented 
infiltration through a single liner, such as the geomembrane liner by 
itself. Our evaluation of the results for these different liner 
assumptions is given in section IV.A.
    We also modeled a select group of landfills that used geomembrane/
geosynthetic clay liners (GM/GCL). The GM/GCL data set, unlike our 
composite liner data set, excluded all data from liner systems that 
included compacted clay liner (CCL). The CCL infiltration rates may 
include significant amounts of water expelled from the CCL as waste is 
placed in the landfill (``consolidation water'').\29\ The consolidation 
water is difficult to account for and therefore may cause our 
infiltration rate data to be somewhat overstated. However, we believe 
that the contribution from consolidation water is not likely to be 
significant at the higher infiltration rates that are most important to 
the modeling results (i.e., the 90th percentile probabilistic results 
are likely to be weighted toward the high end portion of the 
distribution of infiltration rates where any impact from consolidation 
water should be minimal). While the modeling results for the composite 
liner may be slightly higher due to this factor, we do not believe this 
materially affects the results. We also believe that the larger 
composite liner data set provides a better distribution of infiltration 
rates. The data used for the GM/GCL modeling were fairly limited in 
number and represented only a relatively small subset of the landfill 
units with data. Therefore, we relied on the composite modeling results 
(the SL scenario) for setting the listing limits proposed in this 
notice. The GM/GCL scenario results are provided in the Risk Assessment 
Background Document in the docket for today's proposal.
---------------------------------------------------------------------------

    \29\ ``Characterization of Infiltration Rate Data to Support 
Groundwater Modeling Efforts,'' Draft Final. Tetra Tech, Inc. 
September 28, 2001.
---------------------------------------------------------------------------

    As usual for listing landfill modeling, we also assumed that there 
are adequate controls of runoff and erosion from the unit, preventing 
releases to groundwater or air from these routes. We assumed that the 
cover at closure is a soil cover that still permits volatilization. We 
also assumed that landfills would release leachate to the subsurface.
    Based on the design assumptions above, we simulated the annual 
release of chemical mass by leaching to the unsaturated zone beneath 
the landfill and volatilization to the air. Within the landfill, we 
simulated losses of mass through anaerobic biodegradation (i.e., 
degradation processes that occur in an oxygen-free environment). 
Hydrolysis

[[Page 66184]]

was not a significant factor for any of the constituents of concern. We 
used the highest 9-year average leachate concentration predicted by the 
partitioning model as input into EPA's Composite Model for Leachate 
Migration with Transformation Products (discussed in section ii below).
    In modeling biodegradation, we used anaerobic degradation rates 
that were available in our primary reference.\30\ This reference did 
not provide biodegradation rates for seven constituents of concern: 
aniline, azobenzene, benzaldehyde, 4-chloroaniline, 2,4-
dimethylaniline, 1,2-phenylenediamine, and o-toluidine. For these 
chemicals, we selected conservative surrogates for assigning 
biodegradation rates. In selecting surrogates, we considered likely 
degradation pathways, potential interim products, and chemical 
structure. We used surrogates that were similar in structure and had 
similar or identical functional groups; in some cases, the surrogates 
were closely related isomers with the same chemical formula (e.g., we 
used the rate for 1,4-phenylenediamine for 1,2-phenylenediamine). The 
use of surrogates is discussed in more detail in the Risk Assessment 
Background Document. We solicit comment on the use of surrogates for 
estimating biodegradation rates. We believe that using appropriate 
surrogates is preferable to assigning a default value of zero for the 
biodegradation rate. However, we also modeled these seven constituents 
by assuming a zero degradation rate for comparison. The mass loading 
limits resulting from modeling landfill releases without the surrogate 
biodegradation rates for these constituents are shown in Table IV-4 in 
section IV.A.4.
---------------------------------------------------------------------------

    \30\ Howard, P.H., R.S. Boethling, W.F. Jarvis, W.M. Meyland, 
E.M. Michalenko, and H.T. Printup (ed.). 1991. Handbook of 
Environmental Degradation Rates. Lewis Publishers.
---------------------------------------------------------------------------

    The partitioning model incorporates other assumptions intended to 
improve the efficiency of the model. These assumptions are described in 
detail in the Risk Assessment Background Document. The assumptions 
included the lack of lateral transport between cells, simulation of 
only a single cell and then aggregation of results based on the time 
each cell is filled, and the assumption that waste is added at a 
constant concentration and at a constant rate.
    We do not believe that the wastes evaluated for the landfill 
scenario will contain or form nonaqueous phase liquids (NAPLs). NAPLs 
would be a problem only for wastes containing high concentrations of 
liquid organic material. Regulations for municipal landfills restrict 
the placement of any bulk or containerized liquids in a MSWLF unit 
(Sec.  258.28). Further, we have no information to indicate that such 
wastes would be destined for disposal in landfills. For example, the 
TRI releases reported for the constituents of concern do not suggest 
large quantities of organics are disposed in landfills. We expect 
wastes with high organic content to undergo thermal treatment, such as 
energy recovery. Therefore we did not model NAPL migration.
    Surface Impoundment Partitioning Model. The surface impoundment 
model simulates the disposal of liquid wastes in a surface impoundment 
and the releases of chemicals during the lifetime of the unit. We also 
used this model in the September 14, 2000 proposed listing 
determination for inorganic chemical manufacturing wastes (65 FR 55684) 
and the February 13, 2001 proposed listing determination for paint 
production wastes (66 FR 10060). The entire time series of leachate 
concentrations are then used as input into EPA's Composite Model for 
Leachate Migration with Transformation Products (see section ii) which 
estimates the movement of the plume through the saturated and 
unsaturated zone over a 10,000 year time period. The time series of 
emissions for both vapors and particulates are also utilized along with 
air dispersion modeling results to estimate ambient air concentrations. 
We assume that the impoundments are properly designed and operated such 
that runoff and erosion do not occur. We assume that the unit is not 
covered. The model assumes that the waste in the impoundment consists 
of two phases: Aqueous liquid and sediment. The model simulates the 
changes at the bottom of the impoundment over time as settled solids 
fill pore space in native soils and act to reduce chemical transport to 
underlying soils and groundwater. In addition, the model allows for a 
fraction of each surface impoundment to be aerated, which enhances 
biodegradation and increases volatilization of some chemicals. The 
surface impoundment is assumed to operate 50 years and then undergoes 
clean closure (that is, all the waste is removed from the unit).
    We modeled three liner systems for the surface impoundments: No 
liner, clay liner, and composite liner. The infiltration rates for 
unlined and clay-lined units were calculated internally by the 
groundwater model we used (EPACMTP). For the composite-lined surface 
impoundment, we calculated infiltration rates assuming a distribution 
of leak densities assembled from a survey of composite-lined units.\31\ 
This approach is described in the Risk Assessment Background Document.
---------------------------------------------------------------------------

    \31\ ``Characterization of Infiltration Rate Data to Support 
Groundwater Modeling Efforts,'' Draft Final. Tetra Tech, Inc. 
September 28, 2001.
---------------------------------------------------------------------------

    Based on the design assumptions, the surface impoundment module 
simulates annual release of leachate to the unsaturated zone and 
volatile emissions to the air. The model does not account for 
redeposition of volatiles into the unit from precipitation. The model 
accounts for various biological, chemical, and physical processes in 
the liquid phase, including hydrolysis, volatilization, sorption, 
settlement, resuspension, growth and decay of solids, and activated 
biodegradation (degradation which is dependent on the amount of biomass 
present). For the solid phase, the model accounts for anaerobic 
biodegradation in the sediments and has the ability to account for 
hydrolysis, although the hydrolysis rates for the constituents of 
concern were all zero. As noted above for the landfill partition model, 
we lacked biodegradation rates for seven constituents. As described 
previously, we used surrogates to estimate aerobic and anaerobic 
biodegradation rates for these constituents.
    Tank Emissions Model. The tank model simulates time-varying 
releases of constituents to the atmosphere. The treatment tank is 
divided into two primary compartments: A liquid compartment and a 
sediment compartment. Mass balances are performed on these primary 
compartments at time intervals small enough that the hydraulic 
retention time in the liquid compartment is not significantly impacted 
by the solids settling and accumulation. In the liquid compartment, 
there is flow both in and out of the waste management unit (WMU). 
Solids generation occurs in the liquid compartment due to biological 
growth; solids destruction occurs in the sediment compartment due to 
sludge digestion. Using a well-mixed assumption, the suspended solids 
concentration within the WMU is assumed to be constant throughout the 
tank. However, some stratification of sediment is expected across the 
length and depth of the WMU so that the effective total suspended 
solids (TSS) concentration within the tank is assumed to be a function 
of the WMU's TSS removal efficiency rather than equal to the effluent 
TSS concentration. The liquid (dissolved) phase

[[Page 66185]]

contaminant concentration within the tank, however, is assumed to be 
equal to the effluent dissolved phase concentration (i.e., liquid is 
well mixed). The time series of emissions for vapors is utilized along 
with air dispersion modeling results to estimate ambient air 
concentrations.
    Biological treatment occurs in treatment tanks due to both aerobic 
and anaerobic biodegradation. As noted above for the landfill partition 
model, we lacked biodegradation rates for seven constituents. Thus, as 
described previously, we used surrogates to estimate aerobic and 
anaerobic biodegradation rates for these constituents.
    (ii) Predicting Transport of Constituents. Air Dispersion Model The 
air dispersion model uses information on meteorology (e.g., wind speed, 
wind direction, temperature) to estimate the movement of constituents 
associated with contaminant releases through the atmosphere and the 
constituent concentrations in the air at the locations of potential 
receptors. The air concentrations for this analysis are based on the 
air dispersion factors from the Industrial Waste Air (IWAIR) model. 
These dispersion factors were calculated based on national 
distributions of location, waste management unit surface areas, and 
distance to receptors. As noted above, releases through volatilization 
are unlikely to lead to significant deposition and food chain uptake, 
and thus, deposition was not considered.
    The calculated air concentrations were then averaged over the 
exposure duration. For the exposure duration, we used a time period 
centered around the occurrence of the peak concentration. These average 
concentrations were used to determine the receptor's exposure and risk.
    Groundwater Model We used the EPA Composite Model for Leachate 
Migration with Transformation Products (EPACMTP) to model the 
subsurface fate and transport of contaminants that leach from the waste 
management units (landfills and surface impoundments) and migrate to a 
residential drinking water well. We assume that the soil and aquifer 
are uniform porous media and that flow and transport is described by 
Darcy's law and the advection-dispersion equation, respectively.
    EPACMTP accounts for the following processes affecting contaminant 
fate and transport: Advection, hydrodynamic dispersion, equilibrium 
sorption by the soil and aquifer solids (both in the unsaturated and 
saturated zones), and contaminant hydrolysis. EPACMTP does not account 
for preferential pathways such as fractures, macropores, or facilitated 
transport (i.e., any chemical process that has the potential to speed 
the transport of a pollutant beyond what is expected), which may 
increase the migration of constituents. Conversely, while the model has 
the capability of modeling biodegradation in groundwater, we do not 
have any appropriate coefficients to apply in the subsurface, so we do 
not account for the potential decrease in constituent migration.
    The groundwater pathway consists of two components: Flow and 
transport in the vadose zone (the unsaturated zone directly below the 
unit), and flow and transport in the saturated zone. The primary 
transport mechanisms are downward movement along with infiltrating 
water flow in the unsaturated zone and movement along with ambient 
groundwater flow in the saturated zone. The advective movement in the 
unsaturated zone is one-dimensional, while the saturated zone module 
accounts for three-dimensional flow and transport. The model also 
considers mixing due to hydrodynamic dispersion in both the unsaturated 
and saturated zones.
    In the unsaturated zone, flow is gravity-driven and prevails in the 
vertically downward direction. Therefore, the flow is modeled in the 
unsaturated zone as one-dimensional in the vertical direction. It is 
also assumed that transverse dispersion (both mechanical dispersion and 
molecular diffusion) is negligible in the unsaturated zone. This 
assumption is based on the fact that lateral migration due to 
transverse dispersion is negligible compared with the horizontal 
dimensions of the WMUs. In addition, this assumption is environmentally 
protective because it allows the leading front of the constituent plume 
to arrive at the water table with greater peak concentration.
    In the saturated zone, the movement of constituents is primarily 
driven by ambient groundwater flow, which in turn is controlled by a 
regional hydraulic gradient and hydraulic conductivity in the aquifer 
formation. The model does take into account the effects of infiltration 
from the waste source as well as regional recharge into the aquifer. 
The effect of infiltration from the waste source is to increase the 
horizontal and vertical spreading of the plume, while the effect of 
regional recharge outside of the waste source is to cause a downward 
dip in the movement of the plume as it moves in the down gradient 
groundwater flow direction.
    In addition to advective movement along with groundwater flow, the 
model simulates mixing of contaminants with groundwater due to 
hydrodynamic dispersion, which acts in the longitudinal, (i.e., along 
the groundwater flow direction), as well as in horizontal and vertical 
transverse directions. The rate of movement of contaminants is strongly 
affected by chemical-specific sorption reactions in both the 
unsaturated and saturated zone.
    e. What Are the Human Health Toxicities of the Constituents of 
Concern?
    To characterize the risk from human exposures to the constituents 
of concern, toxicity information on each constituent of concern was 
integrated with the results of exposure assessment. Chronic human 
health benchmarks were used in this risk assessment to evaluate 
potential noncancer and cancer risks. We use reference doses (RfDs) and 
reference concentrations (RfCs) to evaluate noncancer health impacts 
from oral and inhalation exposures, respectively. Oral cancer slope 
factors (CSFs), inhalation unit risk factors, and inhalation CSFs are 
used to evaluate risk for carcinogens. The benchmarks are chemical-
specific and do not vary between receptors (i.e., residents, farmers, 
recreational fishers) or age groups. We used several sources to obtain 
human health benchmarks.
    Health benchmarks for this risk assessment were obtained primarily 
from the most recent Integrated Risk Information System (IRIS) and from 
provisional benchmarks approved by EPA's Office of Research and 
Development. Other sources included EPA's most recent Health Effects 
Assessment Summary Tables (HEAST), Agency for Toxic Substances and 
Disease Registry minimal risk levels, California Environmental 
Protection Agency (CalEPA) chronic inhalation reference exposure 
levels, and CalEPA cancer potency factors. For lead, we used EPA's 
drinking water action level for lead of 0.015 mg/L for the groundwater 
pathway. We also used a drinking water action level for the groundwater 
pathway analysis for copper since an ingestion benchmark was not 
available.
    Section 7 of the Risk Assessment Background Document contains the 
toxicological information used in our analysis. The studies used as the 
basis for each of these benchmarks have been reviewed, along with 
reference to the complete studies, and are presented in section 7 of 
the Risk Assessment Background Document.

[[Page 66186]]

    f. What Are the Risk Assessment Results for Nonwastewaters?
    We developed mass loading limits for nonwastewaters managed in a 
landfill. We calculated risk-based mass loading limits for the air and 
groundwater pathways. Table III-2 shows the loading limits derived from 
probabilistic analysis for the landfill groundwater pathway for several 
liner scenarios: No liner (NL), a compacted clay liner (CL), and a 
range of composite synthetic/clay liner (SL).
    Reviewers should note that inputs used in the modeling to support 
today's proposal may change, and minor modifications to the model 
itself may be made as a result of ongoing internal quality assurance/
quality control reviews and public comments. As a consequence, the 
proposed constituent levels may change as well. Reviewers should bear 
in mind that levels that increase or decrease sufficiently could result 
in adding or deleting constituents from the listing, based on whether 
the risk-based levels are likely to occur in dyes and/or pigments 
production wastes.
    We propose to eliminate constituents from further consideration for 
nonwastewaters if the calculated allowable loading exceeds 10,000 kg/
yr. Our basis for this is that mass loading limits for nonwastewaters 
in excess of 10,000 kg/yr are implausible, because such a loading would 
require waste concentrations that are unlikely to occur. For example, 
using our estimated average annual quantity of wastewater treatment 
sludge (1,894 metric tons/year (MT/yr)),\32\ a loading of 10,000 kg/yr 
would correspond to a waste concentration above 5,000 ppm. Such a high 
concentration is highly unlikely in typical nonwastewaters, as shown by 
the available analytical data for dye and/or pigment wastes.\33\ The 
results in Table III-2 only show the results for the constituents that 
yielded loadings that were below the 10,000 kg/yr level 
(1.0E+04). The modeling for the groundwater pathway yielded 
loading limits less than 10,000 kg/yr for 12 out of the 35 constituents 
of concern for the unlined landfill scenario. Modeling of compacted 
clay lined landfills yielded eight loading limits less than 10,000 kg/
yr; while modeling the range of composite liners which we call the 
``SL'' scenario yielded only one such loading limit. (See the Risk 
Assessment Background Document for the full modeling results).
---------------------------------------------------------------------------

    \32\ See the Economic Analysis Background Document for a full 
description of our estimation of waste quantities.
    \33\ See the summary of analytical data in the Listing 
Background Document. Exceptions include high organic wastes, such as 
still bottoms, however these are relatively rare and are reportedly 
treated by combustion (i.e., are not sent to a landfill). See, for 
example, Attachment C to the comments from BASF on the 1994 
proposal, available in the docket for today's rule.
---------------------------------------------------------------------------

    In contrast, the results for the air pathway for all landfill 
scenarios did not show any levels of concern, i.e., the loading limits 
were all above 10,000 kg/yr. Details for this analysis can be found in 
the Risk Assessment Background Document.

    Table III-2.--Mass Loading Limits for Possible Constituents of Concern in Landfills: Groundwater Pathway
----------------------------------------------------------------------------------------------------------------
                                                                               Mass loading (kg/yr)
                    Chemical                          CAS No.    -----------------------------------------------
                                                                        NL              CL              SL
----------------------------------------------------------------------------------------------------------------
Toluene-2,4-diamine.............................         95-80-7            0.34            0.99             140
2,4-Dimethylaniline (2,4-xylidine)..............         95-68-1              21             100  1.0
                                                                                                            E+04
4-Chloroaniline.................................        106-47-8             630           4,800  1.0
                                                                                                            E+04
o-Anisidine.....................................         90-04-0              30             110  1.0
                                                                                                            E+04
Benzidine.......................................         92-87-5             120  1.0  1.0
                                                                                            E+04            E+04
p-Cresidine.....................................        120-71-8             120             660  1.0
                                                                                                            E+04
1,2-Phenylenediamine............................         95-54-5             160             710  1.0
                                                                                                            E+04
1,3-Phenylenediamine............................        108-45-2             300           1,200  1.0
                                                                                                            E+04
Lead............................................       7439-92-1           1,300           4,900  1.0
                                                                                                            E+04
Aniline.........................................         62-53-3           1,900           9,300  1.0
                                                                                                            E+04
N,N-Dimethylaniline.............................        121-69-7           2,500  1.0  1.0
                                                                                            E+04            E+04
1,4-Phenylenediamine............................        106-50-3           6,500  1.0  1.0
                                                                                            E+04           E+04
----------------------------------------------------------------------------------------------------------------
 NL = limits for unlined landfill scenario.
 CL = limits for clay-lined landfill scenario.
 SL = limits for composite liner landfill scenario.

    In addition to the results shown in Table III-2, we also conducted 
a screening analysis for sodium nitrite; the resulting loading limits 
were calculated to be 493 kg/yr, 740 kg/yr, and 19,720 kg/yr for the 
unlined, clay-lined, and composite-lined (SL) landfill scenarios.\34\ 
Nitrite exists in the environment in a complex equilibrium with other 
forms of nitrogen, including less toxic nitrate, ammonia, and nitrogen 
gas. Equilibrium is affected by a variety of factors, and nitrite 
levels would be driven by the complex nitrogen cycle and the landfill 
and subsurface conditions. While we know nitrite is converted to 
nitrate and nitrogen under various conditions, our models were not able 
to quantify these processes. Also, we assumed that nitrite migrates 
with no significant adsorption (Kd=0). Therefore, we view 
the modeling results for sodium nitrite as a conservative screening 
analysis, because we used a variety of simplifying assumptions.
---------------------------------------------------------------------------

    \34\ Note that the Risk Background Document presents the loading 
limits for sodium nitrite in terms of ``nitrogen,'' rather than the 
complete sodium nitrite molecule (NaO2). This occurs 
because the toxicity benchmark for sodium nitrite is given in terms 
of ``nitrogen.'' The TRI data are given for total mass of sodium 
nitrite. Therefore, for comparison to the TRI data, the loading 
limits are converted to the molecular formula for sodium nitrite; 
this requires multiplying the loadings given in terms of 
``nitrogen'' by a factor of 4.93.
---------------------------------------------------------------------------

    Only two facilities reported any TRI releases of sodium nitrite 
through offsite disposal (which we assume are releases of 
nonwastewaters), with the larger release being 363 kg (the other was 2 
kg). This larger release is still below the very conservative loadings 
from our screening analyses for the three landfill scenarios. 
Furthermore, given the solubility of sodium nitrite, it seems unlikely 
that it could be present in any wastewater treatment sludges in 
significant amounts, but would preferentially partition to the 
wastewater. This is supported by the TRI data, which show that nearly 
all of

[[Page 66187]]

the sodium nitrite released by dyes and/or pigments facilities was in 
wastewaters sent to POTWs or discharged under NPDES permits to surface 
water. Because our screening assessment is likely to be very 
conservative, and because it is unlikely that any nonwastewaters from 
dyes and/or pigments production contain sodium nitrite at levels 
exceeding the screening analysis results, we believe that it is not 
necessary to set a nonwastewater loading limit for this chemical.
    g. What Are the Risk Assessment Results for Wastewaters?
    We developed mass loading limits for wastewaters managed in tanks 
and in surface impoundments. For surface impoundments, we calculated 
risk-based mass loading limits for both the air and groundwater 
pathways. For tanks, because of their relative impermeability, we 
calculated limits based only on the air pathway.
    We assumed that allowable loadings in excess of 100,000 kg/yr were 
implausible. In developing this assumption, we used this plausibility 
threshold to calculate a theoretical wastewater concentration. At 
100,000 kg/yr, we estimate that typical wastewater constituents 
concentrations would be 163 ppm.\35\ To test the validity of this 
assumption, we looked at the available analytical data for wastewaters, 
as summarized in the masked and aggregated results presented in the 
Listing Background Document. We found only one constituent of concern--
aniline--with wastewater concentrations above 163 ppm.\36\ Thus, the 
sampling data generally support our assumption that constituents of 
concern will not be found in wastewaters in amounts exceeding 100,000 
kg/yr.
---------------------------------------------------------------------------

    \35\ Assuming an average wastewater quantity of 615,000 metric 
tons/yr, see ``Economic Assessment for the Proposed Loadings-Based 
Listing of Non-Wastewaters From the Production of Selected Organic 
Dyes, Pigments, and Food, Drug, and Cosmetic Colorants'' in the 
docket for today's proposal.
    \36\ A second chemical, acetone, also exceeded 163 ppm in some 
samples. Acetone, however, is not a constituent of concern in this 
rulemaking because it is typically used as a solvent (rather than an 
intermediate) and as such is already subject to regulation as a 
hazardous waste under F003.
---------------------------------------------------------------------------

    As discussed in sections III.D, III.E, and IV.C, we believe that 
the mostplausible impoundment scenario for these industries is 
management of wastewaters in synthetic-lined impoundments. For the 
groundwater ingestion pathway of the synthetic-lined impoundment 
scenario, none of the modeled wastewater constituent loadings are less 
than 100,000 kg/yr. As a result, we conclude that our assessment of the 
synthetic-lined surface impoundment scenario did not identify any 
constituents that present a concern for the groundwater ingestion 
pathway. For specific results, see the Risk Assessment Background 
Document.
    For both tanks and/or surface impoundments, the loading limits for 
the air pathway for 10 of the 17 constituents modeled were below 
100,000 kg/yr. These constituents are shown in Table III-3. The air 
pathway results did not vary significantly for surface impoundments 
under the various liner scenarios. We show the results for the 
synthetic-lined impoundments below. Our evaluation of these results are 
presented in section IV.C. The Risk Assessment Background Document 
presents additional results for the unlined and clay-line surface 
impoundment scenarios.

 Table III-3. Mass Loading Limits for Possible Constituents of Concern in Tanks and Surface Impoundments Due to
                                                Air Emissions \1\
----------------------------------------------------------------------------------------------------------------
                                                                                       Mass loading (kg/yr)
                                                                                 -------------------------------
                            Chemical                                  CAS No.                         Surface
                                                                                       Tank         impoundment
----------------------------------------------------------------------------------------------------------------
Aniline.........................................................         62-53-3           2,700           1,500
Naphthalene.....................................................         91-20-3           2,200           2,200
Azobenzene......................................................        103-33-3           3,700           2,400
o-Toluidine.....................................................         95-53-4           2,600           2,400
o-Anisidine.....................................................         90-04-0           9,500           2,900
p-Cresidine.....................................................        120-71-8          50,000          13,000
Formaldehyde....................................................         50-00-0  1.0          14,000
                                                                                            E+05
Toluene-2,4-diamine.............................................         95-80-7  1.0          51,000
                                                                                            E+05
1,2-Dichlorobenzene.............................................         95-50-1          71,000          63,000
Benzidine.......................................................         92-87-5  1.0         89,000
                                                                                            E+05
----------------------------------------------------------------------------------------------------------------
\1\ Levels represent the 90th percentile minimum loading limit derived from probabilistic analysis for the air
  pathway for tanks and synthetic-lined surface impoundments.

    We also conducted a screening analysis for sodium nitrite, which 
resulted in loading limits of 19,277 kg/yr for the unlined impoundment 
and 48,807 kg/yr for the clay-lined impoundment; the loading limit for 
the synthetic-lined impoundment scenario was well above the 100,000 kg/
yr level. As discussed for the landfill scenario, nitrite exists in the 
environment in equilibrium with other forms of nitrogen. As noted 
previously, the modeling results for sodium nitrite represent a 
conservative screening analysis that incorporated a variety of 
simplifying assumptions. In this case, we also believe that nitrite is 
likely to be converted to nitrate in the aerobic environment of a 
surface impoundment.\37\
---------------------------------------------------------------------------

    \37\ Note that the toxicity benchmark for nitrate (Rfc) in IRIS 
indicates that nitrate is 16-fold less toxic than nitrite.
---------------------------------------------------------------------------

    The only TRI release of sodium nitrite to wastewater comparable to 
these screening levels was one quantity of 20,586 kg/yr (released to a 
POTW, not an impoundment). This release is barely above the very 
conservative loading from our screening analysis for an unlined 
impoundment (19,277 kg/yr), but well below the loading limit for the 
clay-lined scenario (48,807 kg/yr). Furthermore, the loading limit for 
the synthetic-lined impoundment (which is the most plausible management 
practice) is well above the level of concern. Because our screening 
assessment is likely to be very conservative, and because wastewaters 
from dyes and/or pigments production are unlikely to contain sodium 
nitrite at levels exceeding the screening analysis results, we believe 
that it is not

[[Page 66188]]

necessary to set a wastewater loading limit for this chemical.
3. What Was EPA's Approach to Conducting the Ecological Risk 
Assessment?
    We conducted a screening analysis to estimate whether there might 
be significant impacts from these constituents on ecological receptors. 
This analysis was limited to evaluating the impact of contaminated 
groundwater discharging into surface waters and potentially affecting 
aquatic life and consumers of aquatic life. We did not assess potential 
impacts from vapor emissions to air because we did not have inhalation 
health benchmarks for ecological receptors.
    The evaluation of potential impacts on surface waters consisted of 
modeling the increase in constituent concentrations in surface waters 
due to the discharge of groundwater contaminated by dyes and/or 
pigments production wastes into those waters. We used EPA's Ambient 
Water Quality Criteria (AWQC) to calculate allowable loadings of the 
potential constituents of concern (Table III-1) for this pathway. For 
all constituents, the allowable loadings calculated using the AWQC were 
above the loadings derived using human health toxicity benchmarks. This 
means that the loading limits calculated to protect human health are 
also protective for aquatic life. Therefore, we did not find any 
significant impact from these constituents in this ecological screening 
analysis.
4. What Is the Uncertainty in the Risk Results?

Liner Infiltration Rates

    The infiltration rates used in calculating releases from lined 
landfills were significant sources of uncertainty in our modeling 
results. In modeling releases from landfills with liners, we had to 
rely on limited data for infiltration rates through various liner 
systems. To account for the expected variability in infiltration rates, 
we incorporated distributions of rates for composite liners with 
synthetic components (our SL scenario). The data available were limited 
both in terms of the number of lined units from which we collected 
data, and also in terms of the length of time the liner systems were in 
place. Most of the landfills from which infiltration data was obtained 
had initial waste placement between 10 and 15 years ago (between 1987 
and 1992). Liner systems may suffer increased releases from a variety 
of causes, such as liner failure due to improper installation, faulty 
materials, or long-term degradation of the liner system. These factors 
would tend to increase infiltration rates.
    Our concern about the representativeness of the length of time the 
infiltration data represents is somewhat balanced by our assumption 
that biodegradation occurs in MSWLFs. We accounted for biodegradation 
for all organic constituents of concern. The half-lives we used for the 
organic constituents are relatively short. We estimate that the mass 
loading of these constituents would biodegrade over the landfill life 
to low levels. The slowest degradation rate we evaluated is 9.6E-04 per 
day, which corresponds to a half-life of 2 years. After 10 years of 
degradation at this rate, 97 percent of the constituent mass would have 
degraded (ignoring for this example the competing processes of leaching 
and volatilization). Therefore, almost all of what is placed into the 
landfill during the first 20 years of operation (as well as most of 
what is landfilled during the last 10 years) would be degraded by the 
time the landfill is closed. We think, therefore, that our data on 
infiltration rates reasonably represents liner performance for this 
limited period of time.
    In addition, there are other factors that we did not account for in 
our modeling that would tend to decrease releases of constituents of 
concern from landfills with composite liners. Our modeling did not 
account for the effect of a leachate collection system, which would 
tend to decrease leachate release; this is a required element in the 
design of a composite MSWLF liner (Sec.  248.40(b)). Nor did we 
consider that a final cover would tend to decrease infiltration rates 
after the unit is closed. The closure regulations for a MSWLF unit 
(Sec.  258.60) include a requirement for a low permeability final 
cover, but our data set did not include many closed units. Note that 
these final covers are often constructed using geomembrane liners, 
which are generally more impermeable to surface infiltration than 
earthen or clay liners. While a cover may also degrade over time, post-
closure regulations (Sec.  258.61) require the owner to maintain the 
integrity of the cover for 30 years (the post-closure period may be 
extended, if deemed necessary). In addition, while not required under 
the part 258 regulations, many landfill units are equipped with 
additional liners, i.e., units may have a double composite liner 
system. This is apparent from the units from which the infiltration 
data were collected (the units had a secondary liner in place, thus 
allowing the infiltration from the top liner to be measured). Also, 
information submitted by an industry group in comments on the 1999 
proposed listing for dyes and/or pigments wastes indicates that over 
half of the landfills receiving the wastes in question reported having 
some kind of double liner in place.\38\
---------------------------------------------------------------------------

    \38\ See comments by Ecological and Toxicological Association of 
Dyes and Organic Pigments Manufacturers, Attachment A, October 21, 
1999, placed in the docket for today's proposal.
---------------------------------------------------------------------------

Other Sources of Uncertainty

    This section discusses other major areas of risk assessment 
uncertainty: scenario uncertainty, model uncertainty, and parameter 
uncertainty.
    Scenario uncertainty results from the assumptions we make regarding 
how receptors become exposed to contaminants. This uncertainty occurs 
because of the difficulty and general impracticality of making actual 
studies of all activities involved in the management of a waste and the 
human activities that occur around the waste management unit.
    This risk assessment, like other recent listing risk assessments 
(e.g., see the proposal for paint manufacturing wastes at 66 FR 10060; 
February 13, 2001) does not consider the additive risk from exposure to 
multiple constituents. Chemical mixtures can display both synergistic 
and antagonist behavior with regard to risk. In general, however, the 
overall risks of a mixture are very likely to be greater than that of 
exposure to a single chemical. Therefore not adding exposures across 
the chemicals is an area of uncertainty that leads to an underestimate 
of total risk.
    We did not calculate the additive effects from co-disposal of dyes 
and/or pigments nonwastewaters since the available information from TRI 
on the mass loading and co-management of particular constituents of 
concern in dyes and/or pigments production wastes indicated that such 
co-disposal by multiple generators in landfills was not a significant 
occurrence.
    Also, certain contaminants from these industries may also be 
present in the environment as a result of both natural processes and 
anthropogenic activities. Under these circumstances, receptors 
potentially receive a ``background'' exposure that adds to the exposure 
resulting from release of contaminants from the waste. For a national 
analysis like this assessment, the inclusion of background 
concentrations as part of the analysis is difficult because of the lack 
of data on national background concentrations for each constituent and 
the potential high variability of background concentrations.

[[Page 66189]]

    Model uncertainty is associated with all models used in all phases 
of a risk assessment, because models and their mathematical expressions 
are simplifications of reality that are used to approximate real-world 
conditions and processes, and their relationships. Models do not 
include all parameters or equations necessary to express reality 
because of the inherent complexity of the natural environment and the 
lack of sufficient data to describe it. Even though the models used in 
the risk analyses are used widely and have been accepted for numerous 
applications, they each retain significant sources of uncertainty.
    For example, in modeling the fate and transport of chemicals in 
groundwater, we did not assess complex hydrogeology such as karst or 
highly fractured aquifers. In general, fractured flow in groundwater 
can channel the contaminant plume, thus allowing it to move faster and 
more concentrated than in nonfractured flow environments. As a result, 
our modeling may underestimate the concentrations in the groundwater.
    Also, there is considerable uncertainty in predicting the movement 
of contaminants over long periods of time. We assess the risk to 
receptors for the groundwater pathway over a time period of 10,000 
years. There are likely to be significant changes in environmental 
conditions over time, yet the modeling methodology maintains constant 
assumptions over this 10,000 year period.
    Parameter uncertainty occurs when (1) there is a lack of data about 
the parameters used in the equations, (2) the data that are available 
are not representative of the particular instance being modeled, or (3) 
parameter values cannot be measured precisely and/or accurately because 
of limitations in measurement technology.
    The age of several of the databases used in this analysis to 
characterize the waste management units or the location of the 
receptors leads to uncertainty in the analysis. These databases contain 
information collected by the EPA in several surveys during the mid-to 
late 1980's. While these databases represent the best available 
information the Agency has, there may have been significant changes in 
waste management units or residential locations over the last 15-20 
years. The uncertainty associated with these data may lead to an over 
or under estimate of risk.
    For organic chemicals, single values for parameters such as 
partitioning coefficients and biodegradation rates were obtained from 
public literature sources, yet there is general agreement that these 
types of values may be highly variable under different environmental 
conditions. We recognize that biodegradation rates are dependent on a 
variety of environmental conditions, thus where more than one rate was 
found, we chose the lowest one. We selected anaerobic degradation rates 
reported as the most appropriate for constituents within landfills. 
Depending on the site specific conditions, the degradation rates may 
underestimate or overestimate the amount of degradation that would 
occur in a landfill. Note that we did not, however, attempt to account 
for biodegradation in the subsurface, because we believe this 
degradation is more variable and difficult to predict. For metals, EPA 
used the MINTEQ model to estimate the variation in partitioning of 
metals as a function of subsurface chemistry. However, this model is 
still undergoing review, which indicates an additional source of 
uncertainty.
    Limited data were available on the physical and chemical 
characteristics of dyes and/or pigments production waste. To address 
this, assumptions on the waste characteristics are based on general 
knowledge of dyes and pigments and other similar industrial wastes. In 
this analysis, EPA assumes that the dyes and/or pigments production 
wastes have the same general characteristics (e.g., fraction of organic 
carbon, pH, particle size) as other wastes.
    We typically use regional databases to obtain the parameter values 
necessary to model contaminant fate and transport. Because the data 
that we used are not specific to the facilities at which the actual 
wastes are managed, the data represent our estimates of the generic 
site conditions. For an analysis where waste management locations are 
so variable, we believe this type of approach is reasonable and is the 
best method to address the fate and transport of constituents. 
Nevertheless, the use of these databases in lieu of site-specific data 
may result in either overestimates or underestimates of risk.
    Sources of uncertainty in toxicological benchmarks include one or 
more of the following: extrapolation from laboratory animal data to 
humans, variability of response within the human population, 
extrapolation of responses at high experimental doses under controlled 
conditions to low doses under highly variable environmental conditions, 
and adequacy of the database (number of studies available, toxic 
endpoints evaluated, exposure routes evaluated, sample sizes, length of 
study, etc.). Toxicological benchmarks are designed to be conservative 
(that potentially overestimates risk) because of the uncertainties and 
challenges associated with condensing toxicity data into a single 
quantitative expression. Uncertainty factors are applied to address 
limitations of the available toxicological data and are necessary to 
ensure that the RfD or RfC is protective of individuals in the general 
population. The use of uncertainty factors is based on long-standing 
scientific practice. Uncertainty factors, when combined, commonly range 
from 10 to 1000 depending on the nature and quality of the underlying 
data. The RfD/RfC methodology is expected to have an uncertainty 
spanning perhaps an order of magnitude.
    Toxicological effects in children are also an area of uncertainty. 
Cancer slope factors and reference doses for children are based on 
comparing childhood exposure, for which we have age-specific data, with 
adult toxicity measures, where adequate age-specific dose-response data 
is lacking. This mismatch results in a large amount of uncertainty in 
the estimation of hazard quotients for children and the concern that we 
may be underestimating the potential impacts on children.
5. How Did EPA Use Damage Case Information?
    We considered whether any damage cases exist that indicate impacts 
on human health or the environment from improper management of the 
wastes of concern, as required under the listing regulations (Sec.  
261.11(a)(3)(ix)). Damage incidents might also provide some information 
on the potential of the waste constituents to migrate, persist, or 
degrade in the environment. We compiled damage incidents involving dyes 
and/or pigments production wastes for a previous proposal,\39\ and we 
updated this report for today's proposal.\40\ We found and reported 
eleven incidents in the August 1994 damage case report that appeared to 
involve some kind of contamination from the mismanagement of dye and/or 
pigment production wastes. Our updated analysis did not produce any 
other cases with useful information.
---------------------------------------------------------------------------

    \39\ See the report prepared for the 1994 proposed rule, 
``Resource Damage Incidents for Dye and Pigment Industry,'' August 
1994, in the docket for today's rule.
    \40\ See the updated report, ``Damage Incident Analysis for the 
for Identification and Listing of Wastes from the Production of 
Organic Dyes and Pigments,'' July 2003, in the docket for today's 
rule.
---------------------------------------------------------------------------

    The available information on potential problems related to apparent 
mismanagement of dye and/or pigment wastes at manufacturing sites. The

[[Page 66190]]

information of most potential utility came from the Comprehensive 
Environmental Response Compensation and Liability Information System 
(CERCLIS), which contains information on potential and actual Superfund 
sites, and EPA Region or State files. We found further information on 
the Superfund Record of Decision System (RODS), which documents 
remediation actions at sites on the National Priority List (NPL).
    We examined eleven cases closely, because these sites appear to 
involve sites where dyes and/or pigments production occurred. However, 
comments from a number of companies and trade associations on the 1994 
proposal argued that most of these cases did not support the proposed 
listings in the 1994 rule. Commenters argued that the damage cases did 
not reflect current management practices, nor did the cases confirm 
risks were posed by the wastes proposed for listing. Upon further 
review, we agree that the damage cases have limited utility for 
determining current plausible mismanagement scenarios. The majority of 
damage cases (especially Superfund sites) were from sites that operated 
prior to implementation of the current RCRA regulations for hazardous 
wastes (e.g., characteristically hazardous waste) or nonhazardous 
wastes (e.g., current regulations for municipal landfills in part 258), 
and generally reflect management practices that no longer occur (such 
as disposal of untreated waste in unlined surface impoundments and 
indiscriminate disposal of wastes on the ground). Also, most of the 
facilities with damage cases have closed or ceased production of the 
in-scope dyes and pigments. Therefore, we believe these past damage 
incidents do not represent current waste management practices used by 
the dyes and/or pigments production industry.
    In most cases, the available damage incident data do not attribute 
contamination to the specific dyes and/or pigments production wastes at 
issue in today's proposed rule. Contamination may be caused by other 
unrelated processes or activities onsite. Even where historical 
problems can be traced to dye or pigment materials, they are not very 
useful in assessing the potential risks for dyes and/or pigments 
production as they are currently generated or managed. The damage cases 
provide some anecdotal information to suggest that some dyes and/or 
pigments production wastes may yield environmental contamination when 
managed in the ways that lead to the damage cases. Some damage 
incidents also provide information indicating the potential for the 
migration, mobility, and persistence of constituents in dyes and/or 
pigments production wastes. For example, the information on the 
chemicals contaminating the groundwater or other media at the damage 
sites show contamination from some of the constituents of concern in 
today's rule (aniline, 4-chloroaniline, 1,2-dichlorobenzene). This 
provides some support that these constituents may migrate to the 
groundwater and may present risks if the contaminated groundwater is 
consumed. However, this information does not assist in determining the 
mass loadings at which dyes and/or pigments production wastes could 
pose a hazard.
    In general, because the wastes in the damage cases may include 
wastes not in the scope of today's rule, and because the cases reflect 
management scenarios that we do not believe are currently common or 
plausible, it is difficult to use them to reach conclusions as to 
whether the wastes under evaluation in today's proposal may pose 
significant risks. Certainly, it is inappropriate to use damage cases 
to ascertain at what mass loadings the dyes and/or pigments production 
wastes under evaluation may pose such risks. Thus, while the damage 
cases support the concept that some dyes and/or pigments production 
wastes may sometimes pose risks, EPA is relying upon its quantitative 
risk assessment in formulating today's proposal.

IV. Proposed Listing Determinations

A. What Are the Proposed Regulations for Dyes and/or Pigments 
Production Nonwastewaters?

    We are proposing to list nonwastewaters from the production of dyes 
and/or pigments. Such wastes would become a listed hazardous waste if 
they are generated during the production of any of the specified 
classes of dyes and/or pigments products and if, at the point of 
generation, they contain any of the K181 constituents of concern at a 
mass loading equal to or greater than the annual mass loading limit 
identified for that constituent. All wastes generated during a calendar 
year up to the mass loading limits are outside the scope of the 
listing, even if the wastes subsequently meet or exceed the limits. 
Such wastes would be excluded from the listing from their point of 
generation, and would not be subject to any RCRA Subtitle C management 
requirements for generation, storage, transport, treatment, or disposal 
(including the land disposal restrictions).
    We are also proposing a conditional exemption for nonwastewaters 
listed in K181 with specific constituent loadings below a higher limit 
at the point of generation, so long as the wastes are disposed of in a 
Subtitle D or Subtitle C landfill cell subject to specified design 
standards. We are proposing the following listing description for these 
wastes:

    K181: Nonwastewaters from the production of dyes and/or pigments 
(including nonwastewaters commingled at the point of generation with 
nonwastewaters from other processes) that, at the point of 
generation, contain mass loadings of any of the constituents 
identified in paragraph (c)(1) of this section that are equal to or 
greater than the corresponding paragraph (c)(1) levels, as 
determined on a calendar year basis. These wastes would not be 
hazardous if: (i) The nonwastewaters do not contain annual mass 
loadings of the constituent identified in paragraph (c)(2) of this 
section at or above the corresponding paragraph (c)(2) level; and 
(ii) the nonwastewaters are disposed in a Subtitle D landfill cell 
subject to the design criteria in Sec.  258.40 or in a Subtitle C 
landfill cell subject to either Sec.  264.301 or Sec.  265.301. For 
the purposes of this listing, dyes and/or pigments production is 
defined in paragraph (b)(1) of this section. Paragraph (d) of this 
section describes the process for demonstrating that a facility's 
nonwastewaters are not K181. This listing does not apply to wastes 
that are otherwise identified as hazardous under Sec. Sec.  261.21-
24 and 261.31-33 at the point of generation. Also, the listing does 
not apply to wastes generated before any annual mass loading limit 
is met.

    We also specify the procedures and recordkeeping requirements that 
generators would use to demonstrate whether or not they exceed the 
loading limits and, if applicable, whether they meet the landfill 
design requirements. These implementation provisions are discussed in 
section V of today's proposal.
    We are proposing that the constituents and the mass loadings in the 
listing (which would be specified in paragraph (c)(1) of Sec.  261.32) 
would be those shown in Table IV-1. For the conditional exemption, we 
are proposing the constituent and mass loading limit shown in Table IV-
2 (to be set out in Sec.  261.32(c)(2)). These constituents and listing 
levels are based on the risk modeling for nonwastewaters disposed of in 
nonhazardous waste landfills summarized in section III.G.

[[Page 66191]]



 Table IV-1.--Proposed Section 261.32(c)(1) Mass Loading Limits for K181
                             Nonwastewaters
------------------------------------------------------------------------
                                             Chemical       Mass levels
               Constituent                 abstracts No.      (kg/yr)
------------------------------------------------------------------------
Aniline.................................         62-53-3           9,300
o-Anisidine.............................         90-04-0             110
4-Chloroaniline.........................        106-47-8           4,800
p-Cresidine.............................        120-71-8             660
2,4-Dimethylaniline.....................         95-68-1             100
1,2-Phenylenediamine....................         95-54-5             710
1,3-Phenylenediamine....................        108-45-2           1,200
Toluene-2,4-diamine.....................         95-80-7            0.99
------------------------------------------------------------------------


    Table IV-2.--Proposed Section 261.32(c)(2) Mass-Loading Limit for
Conditional Exemption to K181 for Nonwastewaters Disposed of in Landfill
                  Cells Subject to Design Requirements
------------------------------------------------------------------------
                                             Chemical       Mass levels
               Constituent                 abstracts No.      (kg/yr)
------------------------------------------------------------------------
Toluene-2,4-diamine.....................         95-80-7             140
------------------------------------------------------------------------

1. Landfill Scenarios Underlying Listing Loading Limits
    Table III-2 sets out the loading limits we calculated for several 
landfill liner scenarios representing decreasing infiltration rates: No 
liner (NL), clay liner (CL), and a composite synthetic/clay liner (SL). 
These results reflect a broad spectrum of potential Subtitle D 
landfills that might receive nonwastewaters. However, we based the 
listing levels on the two scenarios we believe are most applicable. We 
are proposing to use the modeling results for a clay-lined landfill (CL 
scenario) as the basic loading levels for dyes and/or pigments 
production nonwastewaters in Table IV-1. As discussed in section 2 
below, we are proposing to use the results for the composite liner 
modeling (SL scenario) as the basis for a conditional exemption from 
the listing to set the loading limit in Table IV-2 that would apply to 
wastes that are managed in landfills that are equipped with a minimum 
of a composite liner system.
    We found that management in an offsite municipal solid waste 
landfill was a plausible management practice for nonwastewaters (see 
section III.F.2). The regulations governing municipal landfills require 
a composite liner design (or a strict performance standard; see 40 CFR 
258.40), but this requirement does not apply to existing units 
(existing units are municipal landfill cells that accepted waste as of 
the dates specified in Sec.  258.1(e), generally October 9, 1993). Most 
key parts of the MSWLF regulations codified in 40 CFR part 258 apply to 
existing units. Some of these regulations (notably the groundwater 
monitoring and corrective measures regulations at Sec.  258.50 through 
Sec.  258.58) probably have encouraged facilities to close unlined 
units because of the long-term liability of adverse groundwater 
impact.\41\ We believe that it is likely that a landfill currently 
receiving these industrial wastes would have at least a clay liner.\42\ 
In fact, an industry association presented detailed information in 
comments on the 1999 proposed listing for dye and pigment wastes that 
showed that landfills receiving these wastes are reported to have 
liners.\43\ Therefore, we are proposing that the mass loading limits 
from the clay-lined results shown in Table IV-1 define the hazardous 
mass loadings for these dye and/or pigment wastes (in Sec.  
261.32(c)(1)). Nevertheless, because there may be unlined MSWLFs that 
might be used for these wastes, we are soliciting comment on whether 
the listing (and levels in Sec.  261.32(c)(1)) should be conditioned on 
the wastes being placed in a landfill with a minimum of a clay liner. 
We may consider this option, for example, if we receive data that shows 
dye and pigment wastes are being disposed of in unlined landfills.
---------------------------------------------------------------------------

    \41\ See ``Waste Age,'' Volume 30, p. 64; July 1999. Also, the 
number of MSWLFs operating has decreased from 7,683 in 1986 to 3,581 
in 1995 and to about 2,300 in 2000; See EPA's updated lists of 
MSWLFs (EPA530-R-96-006) and at http://www.epa.gov/epaoswer/non-hw/muncpl/longdesc/4-8longdesc.htm.
    \42\ While our data indicate that dyes and/or pigments 
manufacturers do not appear to currently use nonmunicipal (i.e., 
``industrial'') Subtitle D landfills, we believe that this type of 
landfill is also likely to be lined. Commercial offsite landfills 
are subject to considerable regulations by States, including liner 
requirements. See the report by ASTSWMO, ``Non-Municipal, Subtitle D 
Waste Survey,'' March 1996 and EPA's report ``List of Industrial 
Waste Landfills and Construction and Demolition Waste Landfills,'' 
September 30, 1994 (PB\1\95-208914, 530-R-95-019), http://www.epa.gov/epaoswer/hazwaste/sqg/list/lfillpdf.pdf.
    \43\ See comments by Ecological and Toxicological Association of 
Dyes and Organic Pigments Manufacturers, Attachment A, October 21, 
1999, placed in the docket for today's proposal.
---------------------------------------------------------------------------

2. Conditional Exemption for Certain Landfilled Wastes
    We are also proposing that wastes that otherwise meet the K181 
listing description could be managed as nonhazardous so long as both of 
the following conditions are met: (1) The nonwastewaters do not contain 
an annual mass loading of toluene-2,4-diamine that is equal to or 
greater than 140 kg/yr, and (2) the nonwastewaters are disposed in a 
Subtitle D landfill cell subject to the design criteria in Sec.  258.40 
or in a Subtitle C landfill cell subject to the design criteria in 
Sec.  264.301 or Sec.  265.301. We are proposing this exemption because 
our modeling indicates that management in landfills that comply with or 
exceed these design standards should not pose a risk to human health 
and the environment (so long as the waste does not exceed the Sec.  
261.32(c)(2) listing levels for toluene-2,4-diamine).
    As previously discussed in IV.A.1, the Sec.  261.32(c)(1) listing 
levels reflect our risk assessment modeling results for a clay-lined 
landfill. Wastes with mass loadings above the Sec.  261.32(c)(1) 
listing levels pose risk to human health when placed in a landfill that 
is only lined with clay because of the modeled mobility of the K181 
constituents through a clay liner into the subsurface and subsequent 
movement through an aquifer used for domestic consumption. Many 
landfills, however, have been designed with more protective liner 
systems than a simple clay liner. The Sec.  258.40 landfill liner 
requirements provide significantly more protection against contaminant 
migration into

[[Page 66192]]

groundwater. We believe that the SL modeling results closely match the 
Sec.  258.40 requirement, because the infiltration data used for the SL 
scenario were derived from municipal landfills with composite liners 
(i.e., a combination of a geomembrane liner and a clay liner of some 
sort). This modeling, reflected in the Sec.  261.32(c)(2) listing 
levels, demonstrates that the majority of the constituents that warrant 
establishment of listing levels based on a clay-lined landfill scenario 
(i.e., the Sec.  261.32(c)(1) levels) are effectively controlled in a 
landfill with a composite clay and synthetic liner similar to the liner 
required under Sec.  258.40. Our modeling of the composite liner 
scenario indicates that only one constituent, toluene-2,4-diamine, 
poses risk that warrants further control due to possible infiltration 
through a composite liner system.
    Based on our risk assessment results that indicate that the 
majority of the assessed constituents can be safely managed in Sec.  
258.40 compliant landfills, we have proposed to exempt those wastes 
that would otherwise meet the K181 standards when those wastes are 
managed in landfills subject to the Sec.  258.40 standards, so long as 
the wastes do not contain mass loadings in excess of the Sec.  
261.32(c)(2) standard of 140 kg/yr we are proposing for toluene-2,4-
diamine.
    Hazardous waste regulations require double composite liners that 
are even more protective than part 258 composite liners. Some 
generators of dyes and/or pigments nonwastewaters may choose to dispose 
of their wastes in hazardous waste landfills. Wastes which contain mass 
loadings below the Sec.  261.32(c)(2) standard would not pose threats 
if placed in landfill cells subject to the hazardous waste landfill 
requirements. Accordingly, we are also proposing to exempt wastes that 
would otherwise meet the K181 listing if they do not exceed the Sec.  
261.32(c)(2) mass level and if they are placed in landfill cells 
subject to 40 CFR 264.301 or Sec.  265.301. We request comment on this 
exemption.
3. Selecting K181 Constituents and Mass Loading Limits
    As described in section III, we developed risk-based mass loading 
limits for the set of constituents shown in Table III-1. In general, we 
relied on the modeling results to guide us in deciding which 
constituents would be appropriate in defining these dyes and/or 
pigments production nonwastewaters as listed hazardous wastes. We 
dropped constituents from further concern if the calculated allowable 
mass loadings exceeded 10,000 kg/yr, because these constituents are 
unlikely to occur in these wastes above this level. That is, mass 
loadings of this magnitude are so high in comparison with expected 
waste generation rates, that the resultant theoretical concentrations 
are well in excess of the concentrations we expect to be present in 
these wastes and thus can be considered implausible. Thus, using this 
concept of a theoretical waste concentration to screen the constituents 
listed in Table III-1, we narrowed the list of constituents by 
eliminating those with calculated allowable mass loadings above 10,000 
kg/yr.
    Table IV-3 summarizes various information sources we have 
identified that link these chemicals to the production of dyes or 
pigments of concern. We believe this information supports our proposal 
to propose listing levels for these constituents in K181. Additional 
details are presented in the Listing Background Document and in 
``Background Document: Development of Constituents of Concern for Dyes 
and Pigments Listing Determination,'' both of which are available in 
the docket for today's proposal. We solicit comment on the proposed 
list of constituents and their levels in Tables IV-1 and IV-2. We seek 
comment and supporting information as to whether any constituents 
should be added to or dropped from the list of constituents of concern 
for dyes and/or pigments nonwastewaters and the basis for such action. 
More specifically, we seek any information that may assist us in 
deciding whether any of the constituents in Table IV-1 are unlikely to 
be present at the levels of concern, and thus whether we should drop 
them from the listing.

                           Table IV-3.--Overview of Data Sources Linking K181 Constituents to Dyes and/or Pigments Production
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                          Sec.   3007      Manufacturer
            Constituent                 CAS No.     Analytical data    Colour index         TRI             EU Ban           survey         web sites
--------------------------------------------------------------------------------------------------------------------------------------------------------
Aniline...........................         62-53-3               X                X                X   ...............               X                X
o-Anisidine.......................         90-04-0               X                X                X                X   ...............               X
4-Chloroaniline...................        106-47-8               X   ...............               X                X   ...............  ...............
p-Cresidine.......................        120-71-8  ...............               X                X                X   ...............               X
2,4-Dimethylaniline...............         95-68-1               X   ...............  ...............  ...............               X                X
1,2-Phenylenediamine..............         95-54-5               X                X                X   ...............  ...............               X
1,3-Phenylenediamine..............        108-45-2  ...............               X                X   ...............               X                X
Toluene-2,4-diamine...............         95-80-7  ...............               X                X                X   ...............               X
--------------------------------------------------------------------------------------------------------------------------------------------------------

    We also specifically seek comment on the constituent in Table IV-2 
that is at issue for wastes disposed of in a landfill subject to Sec.  
258.40, Sec.  264.301 or Sec.  265.301 design requirements. TRI 
releases for toluene-2,4-diamine were reported by two dyes and/or 
pigments production facilities. One facility reported an annual release 
of less than 500 lbs., or 227 kg (i.e., as reported in a Form A for the 
TRI). The second facility reported the transfer of 396 kg of mixed 
toluenediamine isomers to a broker for disposal; we could not determine 
whether this waste was treated prior to disposal. The TRI data 
therefore indicates that one or two facilities may be disposing of 
toluene-2,4-diamine in the modeled management practice at levels on the 
same order of magnitude as the proposed listing levels. In addition to 
the TRI data, the Colour Index and two facilities' Web site indicate 
that four companies manufacture products that may be derived from 
toluene-2,4-diamine. Note that we do not have any analytical data for 
this constituent in dye and pigment wastes, because we did not analyze 
wastes for this chemical. After evaluating all available information, 
including information on the potential presence of toluene-2,4-diamine 
at the proposed levels in nonwastewaters and the current use of this 
constituent in dyes and/or pigments production, we will determine 
whether toluene-2,4-diamine should be included in Sec.  261.32(c)(2).
4. Assessment of Biodegradation
    As described in section III.G.2.d.i, we accounted for the 
biodegradation of the constituents of concern in our landfill modeling. 
In modeling biodegradation, we used anaerobic degradation rates

[[Page 66193]]

that were available in the primary reference; \44\ when rates were not 
available for seven chemicals of concern, we used conservative 
surrogates derived from the same reference. The loading limits for 
nonwastewaters in Tables IV-1 and IV-2 were derived using this 
approach. We also completed modeling for these seven constituents using 
a default degradation rate of zero.
---------------------------------------------------------------------------

    \44\ Howard, P.H., R.S. Boethling, W.F. Jarvis, W.M. Meylan, 
E.M. Michalenko, and H.T. Printup (ed.). 1991. Handbook of 
Environmental Degradation Rates. Lewis Publishers.
---------------------------------------------------------------------------

    Table IV-4 presents the mass loading limits for nonwastewaters that 
would result from using zero degradation rates for the seven 
constituents. Under this approach, three additional constituents would 
be added to the Sec.  261.32(c)(1) list (benzaldehyde, azobenzene, and 
p-toluidine) and five additional constituents would be added to the 
Sec.  261.32(c)(2) list (2,4-dimethylaniline, 4-chloroaniline, 1,2-
phenylenediamine, aniline, and p-toluidine). We believe that using 
appropriate surrogates is preferable to assigning a default value of 
zero for the biodegradation rate. However, we request comment on 
whether the risk assessment results derived from the default rate of 
zero should be used as the basis for setting listing levels for some or 
all of these constituents.

                    Table IV-4.--Alternate Mass Loading Limits Calculated Without Degradation
----------------------------------------------------------------------------------------------------------------
                                                                                   Sec.               Sec.
                      Constituent                             Chemical      261.32(c)(1) Mass  261.32(c)(2) Mass
                                                           abstracts no.      levels (kg/yr)     levels (kg/yr)
----------------------------------------------------------------------------------------------------------------
2,4-Dimethylaniline....................................            95-68-1                3.7                160
4-Chloroaniline........................................           106-47-8                 89              3,400
1,2-Phenylenediamine...................................            95-54-5                5.7                180
Benzaldehyde...........................................           100-52-7              1,500                (1)
Azobenzene.............................................           103-33-3              6,800                (1)
Aniline................................................            62-53-3                110              4,300
p-Toluidine............................................           106-49-0                 11               400
----------------------------------------------------------------------------------------------------------------
\1\ Not applicable: Calculated degradation rates exceed 10,000 kg/yr, no listing level proposed.

    We specifically seek comment on the five constituents that would be 
added to the conditional exclusion in Sec.  261.32(c)(2) if this 
alternate approach of using zero biodegradation rates were adopted. We 
recognize that some information we have in the record suggests that 
mass loadings in these wastes may not reach the Table IV-4 levels for 
some constituents.
    For example, we have historical analytical data for dyes and/or 
pigments nonwastewaters for 2,4-dimethylaniline, 4-chloroaniline, p-
toluidine, 1,2-phenylenediamine, and aniline (see the Listing 
Background Document). 2,4-Dimethylaniline was detected only in 
wastewater (two samples, maximum of 1.19 ppm). 4-Chloroaniline was 
found in five waste samples, but at fairly low concentrations (maximum 
of 13 ppm). p-Toluidine (also known as 4-methylaniline) was detected at 
high levels in one sample of nonwastewater (presumably a still bottom 
or spent solvent), and it was also possibly detected as a co-eluting 
component of 2/3/4-aminotoluene (maximum of 10.4 ppm). 1,2-
Phenylenediamine (also know as 2-aminoaniline) was possibly detected at 
a maximum of 7.17 ppm as a co-eluting component of 2,4-aminoaniline and 
2-methoxyaniline. However, the analytical data for 1,2-phenylenediamine 
is difficult to interpret because this chemical could not be separated 
from the other closely related isomers by the method used, and also 
because further evaluation of data from other wastes indicated that the 
recovery of 1,2-phenylenediamine from some matrices is difficult (see 
section IV.A.5 for a discussion on waste analysis problems). Aniline 
was found in numerous waste samples, including wastewater sludges and 
other nonwastewaters; some samples had high aniline concentrations. 
Data from comments suggests that the higher concentrations may be 
associated with special wastes (e.g., still bottoms), but this cannot 
be confirmed from the available analytical data. In any case, aniline 
appears to be fairly prevalent in dye and/or pigment wastes. For these 
five constituents, the detected concentrations are generally below the 
theoretical waste concentrations we calculated using an estimated 
average waste quantity (e.g., the loading 160 kg/yr for 2,4-
dimethylaniline contained in the average estimated waste quantity of 
1,894 kg/yr would give a theoretical concentration of 84 ppm). 
Exceptions include one detection for p-toluidine and at least three 
samples for aniline.
    We also considered TRI data from known dyes and/or pigments 
manufacturers reported for these constituents. The TRI data for 4-
chloroaniline show that total reported releases of 212 kg were far 
below the Sec.  261.32(c)(2) mass loading limits. 2,4-Dimethylaniline 
and p-toluidine are not on the TRI list of chemicals. The only TRI 
release for 1,2-phenylenediamine was the filing of a form A by one 
facility, indicating a release of less than 500 lbs., or 227 kg/yr. 
Five facilities reported releases of aniline (two others also filed 
form A); three of these reported total aniline releases that exceed the 
Sec.  261.32(c)(2) mass loading limit.
    In addition, some facilities appear to manufacture dyes and/or 
pigments products that are derived from these constituents. For 
example, company Web sites and the Colour Index link four facilities 
with products derived from 2,4-dimethylaniline. Also, while we were not 
able to find specific links between current dyes and/or pigments 
production facilities for products derived from 4-chloroaniline, we 
believe that this constituent's presence in multiple waste samples 
suggests it may be in use, or perhaps occurs as a by-product. The 
Colour Index and company websites also link several dyes and/pigments 
production facilities with products derived from 1,2-phenylenediamine 
and p-toluidine. Aniline is a common raw material for dyes and 
pigments; this constituent is linked to at least eight companies. Thus, 
if we decide to adopt this alternate approach to assessing degradation 
rates for these constituents, we will evaluate information submitted by 
commenters on the potential presence of these constituents at the 
proposed levels in nonwastewaters and the current use of these 
constituents in dyes and/or pigments production. After considering all 
available information, we will determine whether we should set

[[Page 66194]]

exemption loading limits for these chemicals.
    We also solicit comment on retaining benzaldehyde as a K181 
constituent in the Sec.  261.32(c)(1) list, if we were to adopt this 
alternate approach to assessing biodegradation. Benzaldehyde is a 
naturally occurring chemical that is found in many foods, and is widely 
used in flavors and fragrances; \45\ it is on FDA's list of generally 
recognized as safe (GRAS) substances (21 CFR 172.515). While our 
primary degradation reference did not report a degradation rate for 
benzaldehyde, we are aware that benzaldehyde is fairly reactive and 
will degrade to benzoic acid, which is 40-times less toxic (see IRIS 
database). When we used a conservative surrogate degradation rate for 
benzaldehyde, the modeling results showed this constituent would not 
present a problem (i.e., the results were well above 10,000 kg/yr.). We 
request information on the degradation rate for this chemical. We also 
request information on the frequency of benzaldehyde use in dyes and/or 
pigments production, as well as information on the likelihood that 
nonwastewaters will contain loadings of benzaldehyde at or above our 
proposed loading limits. If we adopt this alternate way of assessing 
biodegradation, information indicating that benzaldehyde is rarely used 
or unlikely to exceed the proposed loading limit may lead us to delete 
this chemical from the listing.
---------------------------------------------------------------------------

    \45\ See the ``Flavor And Fragrance High Production Volume 
Consortia--The Aromatic Consortium Test Plan For Benzyl 
Derivatives,'' December, 2001 submitted to EPA's High Production 
Volume Challenge Program (http://www.epa.gov/chemrtk/benzylde/c13450tc.htm).
---------------------------------------------------------------------------

5. Lead as a Potential K181 Constituent
    We are proposing not to set K181 standards for the metal, lead, 
despite modeling results for the clay-lined landfill scenario (4,900 
kg/yr) that are below our screening threshold of 10,000 kg/yr. We do 
not believe it is appropriate to set lead standards for K181 for a 
number of reasons. First, we think it is unlikely that lead is used 
extensively in current dyes and/or pigments production. While 
historical information indicates that lead has been used in this 
industry (e.g., as an oxidizing agent), we believe that environmental 
regulations (such as the Toxicity Characteristic) and increased general 
concerns about the use of lead in consumer products may have 
contributed to declines in the use of lead in this industry. Our 
analysis of the TRI data shows very limited reporting of lead releases 
by the 35 dyes and/or pigments manufacturers that report to the TRI. In 
fact, only two facilities report lead releases: Eastman Chemical 
(Kingsport, TN) and Harshaw Chemical/Engelhard Corporation (Louisville, 
KY). As previously discussed, Eastman is a very large chemical 
manufacturer, with an extensive product list (over 1,200 plastics/
polymers, fibers and other chemicals). Dye production accounts for an 
extremely small portion of their operations. We do not believe their 
waste is representative of dye and/or pigment wastes in general, or 
that it is likely that their reported lead releases are associated with 
their very limited dye product line. Harshaw Chemical is a major 
manufacturer of inorganic pigments, and currently generates a 
significant quantity of characteristic lead wastes (D008) as well as 
listed wastes from the production of inorganic pigments containing lead 
(K002 and K003).\46\ Therefore, we believe that the lead releases 
reported by Harshaw in the TRI are highly likely to be associated with 
their inorganic pigment production (rather than their organic pigment 
processes). The TRI data is consistent with this interpretation. 
Harshaw reported in the 2000 TRI that all of the lead sent offsite for 
disposal underwent stabilization/solidification; nearly all of this 
(except for 45 kg ) was sent to a Subtitle C facility. No other dyes 
and/or pigment manufacturers reported any releases of lead in 2000.
---------------------------------------------------------------------------

    \46\ See 1999 data from the facility in EPA's Biennial Reporting 
System (BRS) for hazardous waste.
---------------------------------------------------------------------------

    Second, we evaluated the available analytical data for these wastes 
for lead. Our analytical results showed two samples contained lead, 
with a maximum concentration of 16.8 mg/kg. By assuming that this is a 
typical concentration in these industries' wastes (despite the TRI data 
that indicates that it is rarely reported in releases from these 
industries), we calculated the necessary waste quantity that would need 
to be generated in order to exceed the modeled threshold level of 4,900 
kg/yr. The resultant calculated theoretical minimum waste quantity of 
274,000 metric tons is significantly greater than the total quantity of 
nonwastewaters that we estimate that all of the potentially impacted 
facilities generate in total (47,000 metric tons). This analysis 
indicates that, even if any other dye and/or pigment manufacturers do 
generate lead-bearing wastes, they are unlikely to contain lead at mass 
loading levels above the modeled threshold level.
    Finally, we also note that lead is currently regulated as D008, a 
characteristic hazardous waste when TCLP levels exceed 5.0 mg/L. The TC 
levels serve as a safety net for lead-bearing wastes, if any, that 
might be generated by facilities manufacturing the relevant dyes and 
pigments. We are soliciting comments, however, on whether we should 
include a threshold loading limit for lead in the K181 listing.
6. Waste Analysis Concerns
    Some problems have surfaced in past chemical analysis of dyes and/
or pigments production wastes for some of the potential constituents of 
concern in Table IV-1. In a few cases, our analysis could not 
distinguish between co-eluting compounds when we used the typical EPA 
methods (e.g., method 8270 in SW-846). However, significant 
improvements have been made in instrument sensitivity and 
chromatographic column performance in the approximately ten years since 
EPA conducted its prior analyses. In general, we believe that following 
methods in SW-846 should be adequate for the constituents in Table IV-
1: method 8270 (GC/MS), method 8315 (HPLC), and method 8321 (HPLC/MS or 
HPLC/UV).\47\ Therefore, we believe that these constituents may now be 
readily measured by the majority of laboratories equipped to perform 
such analyses.\48\
---------------------------------------------------------------------------

    \47\ See the discussion on page 3-25 and elsewhere in the 
background document ``Best Demonstrated Available Technology (BDAT) 
Background Document For Dye and Pigment Production Wastes'', which 
is in the docket for today's rule.
    \48\ See the Economic Analysis Background Document for our cost 
estimates. See also http://www.speclab.com/price.htm.
---------------------------------------------------------------------------

    The most problematic constituent appears to be 1,2-phenylenediamine 
(also known as o-phenylenediamine). We originally promulgated numerical 
treatment standards for 1,2-phenylenediamine in a prior rulemaking (64 
FR 15583, April 8, 1996). However, we subsequently withdrew the 
standard because of poor method performance (see 63 FR 47409, September 
4, 1998). The methods used at the time did not provide adequate 
recovery of the chemical from samples at the 5.6 mg/kg level. We 
solicit comment on options to deal with this potential problem (short 
of dropping the constituent, which is also an option) and other 
analytical issues. For example, we could allow generators to use 
knowledge of their waste in lieu of testing for these constituents 
(regardless of waste quantities generated--see section V for differing 
testing requirements for smaller and larger waste quantities). 
Alternatively, we could allow the generator to show compliance with the

[[Page 66195]]

mass loading limits based on good-faith analytical efforts that 
demonstrate that the constituent could not exceed the mass loading 
limit by an order of magnitude (factor of ten), similar to the 
allowance specified for meeting the land disposal treatment standards 
for combustion residues (see Sec.  268.40(d)(3)).
7. Proposed Additions to Appendices VII and VIII of Part 261
    As required under Sec.  261.30(b), we are proposing to add the 
constituents that are the basis for the listings to Appendix VII of 
Part 261. Thus, we are proposing to add the constituents that are 
listed in Table IV-1 to Appendix VII as the basis for listing K181. In 
addition, a number of constituents in Table IV-1 are not currently 
listed in Appendix VIII to Part 261 as ``hazardous constituents.'' EPA 
places constituents on Appendix VIII if scientific studies show the 
chemicals have toxic, carcinogenic, mutagenic, or teratogenic effects 
on humans or other life forms (see Sec.  261.11(a)(3)). The Risk 
Assessment Background Document contains the detailed toxicological data 
for all constituents we evaluated, including the chemicals we are 
proposing to add to Appendix VIII: o-anisidine, p-cresidine, 2,4-
dimethylaniline, 1,2-phenylenediamine, and 1,3-phenylenediamine. We 
recognize that Appendix VIII already contains the chemical name 
``phenylenediamine'' with a CAS number of 25265-76-3. This Appendix 
VIII listing represents a mixture of isomers (i.e., benzenediamines 
with the presence of two amino-groups in unspecified locations on the 
benzene ring). We are proposing to add the specific isomers (1,2-
phenylenediamine and 1,3-phenylenediamine) to clarify that these are 
listed on Appendix VIII, even though we believe that the existing 
listing for the mixed isomers would cover the specific isomers in 
question. If in response to comments we decide to add any additional 
constituents from Table III-2 to the loading limits in Sec.  
261.32(c)(1) or (c)(2), then we would also add these constituents to 
Appendix VII and VIII, if necessary. For example, under the alternative 
approach in section IV.A.4 using zero degradation rates, we would also 
add benzaldehyde, azobenzene and p-toluidine to Appendix VII of Part 
261, and benzaldehyde and azobenzene would be additional constituents 
added to appendix VIII of part 261.
8. Co-Generation With Out-of-Scope Wastes
    A number of U.S. manufacturers of dyes and/or pigments produce 
products other than those dyes and pigments classes described above in 
II.F.1. For example, some manufacturers might also produce sulphur or 
phthalocyanine dyes, dye intermediates, or other completely unrelated 
products (e.g., surfactants). These facilities are likely to commingle 
their wastewaters from most or all of their processes for treatment 
prior to discharge. The resultant wastewater treatment sludges contain 
constituents from all of the mingled wastewaters.
    We are proposing that, to the extent that a facility commingles 
wastewaters from the dye or pigment processes of interest in today's 
rule with other ``out-of-scope'' wastewaters, the resultant sludge 
would be entirely subject to the K181 listing if the commingled waste 
contained sufficient mass loadings of the K181 constituents of concern 
to trigger the K181 listing. This means, for example, that the entire 
mass of toluene-2,4-diamine in a facility's wastewater treatment 
sludge, would be compared to the K181 listing level for toluene-2,4-
diamine, irrespective of whether some of that mass originated in 
processes other than the manufacture of azo, anthraquinone, perylene or 
anthraquinone dyes or pigments. Note that other process wastes that are 
commingled when generated (e.g., dusts and fines) would also be covered 
by the K181 listing, if the commingled wastes contain some wastes that 
are in the scope of the listing.
    We believe it is appropriate to propose that the scope of the 
listing cover mass contributions from other processes for several 
reasons. First, the toxicity and risk associated with the constituents 
of concern does not change as a function of the type of manufacturing 
process that is the source of that constituent in a commingled waste. 
For example, aniline in a facility's wastewater treatment sludge that 
comes from the dye production process poses the same risk as an 
equivalent amount of aniline in that same sludge as a result of 
treating commingled aniline-bearing wastewaters from manufacturing 
photographic chemicals. Second, while the ED consent decree serves as a 
strong guide to the Agency in determining the scope of our listing 
determination (by establishing priorities and timeframes for the 
completion of specific listings), the consent decree in no way 
prohibits the Agency from proposing listings with broader or different 
scope. As an example, in the listing determination for inorganic 
chemical manufacturing wastes, we listed K178 (solids from 
manufacturing and manufacturing-site storage of ferric chloride from 
acids formed during the production of titanium dioxide using the 
chloride-ilmenite process); see November 20, 2001 (66 FR 58258). The 
K178 listing addressed wastes not directly related to the wastes 
specified in the consent decree (i.e., titanium dioxide production 
wastes (except for chloride process waste solids)). Finally, we believe 
that the proposed approach also is the most straightforward way of 
structuring this type of mass-based listing. The regulatory 
presentation in the CFR, as well as the implementation and enforcement 
of the listing, are simpler under the proposed approach.
    Facilities impacted by this portion of the listing description 
(e.g., those whose wastewater treatment solids contain the K181 
regulated constituents from non-dyes and/or pigments processes) would 
have the option of segregating their wastewaters prior to commingling 
with wastewaters from the dyes and/or pigments processes covered by 
K181. Segregated solids that have no contribution of K181 constituents 
from the dyes and/or pigments processes of concern would not be subject 
to K181. We believe, however, that a more desirable environmental 
outcome (and perhaps technically more feasible) would be achieved if 
those facilities used the K181 listing levels as goals for their 
pollution prevention programs, and if they adopted process 
modifications designed to reduce overall loadings of the K181 
constituents.
    We request comments on this aspect of the proposed scope of the 
K181 listing. We also request comment on an alternative approach which 
would allow facilities to count only those mass loadings associated 
with azo/triarylmethane/perylene/anthraquinone dyes and/or pigments 
manufacture when assessing whether their wastes exceed the K181 listing 
levels. For example, a facility may have specific chemical analytical 
data for its wastewater prior to commingling that might be used to 
demonstrate that the vast majority of a constituent of concern is not 
derived from wastes that are in the scope of K181. Using such data, the 
facility could demonstrate using a mass-loading calculation that the 
mass of the constituent resulting from the in-scope process is well 
below the mass loading limits specified in K181.

[[Page 66196]]

B. How Does K181 Impact Wastes That Are Not Landfilled, Combusted, or 
Previously Listed?

1. What Is the Status of Wastes That Are Not Landfilled?
    We are setting the Sec.  261.32(c)(1) listing levels as the 
baseline levels that establish when nonwastewaters from the production 
of dyes and/or pigments pose sufficient risk to warrant listing as 
hazardous waste. Although these levels are derived from a landfill 
management scenario, we are proposing, consistent with our past 
practice, that these levels apply to all nonwastewaters within the 
scope of the listing definition, irrespective of how the waste may be 
managed. As a specific example of what this means, we are not setting 
separate ``entry/exit'' levels for wastes that might be combusted. We 
are assuming that wastes with constituent amounts below the listing 
levels do not pose risks in a combustion scenario, so the landfill-
based listing limits provide sufficient protection. This is consistent 
with our general approach to unconditional hazardous waste listings. If 
we find that waste does not pose risks in a landfill or surface 
impoundment scenario, we do not list the waste, although we have not 
assessed the risks posed by combustion.
    This approach is also similar to the proposed concentration-based 
listing determination for paint production wastes, where we also 
proposed threshold levels that were not based on any modeling of 
combustion practices. As we noted in that proposal, in past listing 
determinations where we attempted to assess risks from combustion, we 
found that the potential risks from the release of constituents through 
combustion would be at least several orders of magnitude below 
potential air risks from tanks or impoundments (see 63 FR 64371, 
November 19, 1998). We also noted that it is difficult to assess what 
goes into combustion units in relation to the residual constituents 
that might persist in ash or be released to the air, such as products 
of incomplete combustion.
    Our assessment of the tank management scenario for wastewaters from 
the production of dyes and/or pigments indicates that the lowest 
allowable mass loadings associated with air releases from tanks for the 
constituents of concern is in the range of 2,000-3,000 kg/yr. Based on 
the analysis conducted in previous determinations (e.g., 63 FR 64371, 
November 19, 1998), a comparable assessment of air releases from the 
combustion scenario would establish allowable mass loading levels 
several orders of magnitude higher, well in excess of the proposed 
Sec.  261.32(c)(1) listing levels.
2. What Is the Status of Wastes Destined for Combustion That Trigger 
the K181 Listing Levels?
    We are proposing that nonwastewaters exceeding the listing loading 
levels will be K181 listed wastes even if they are combusted. This is 
consistent with our general approach to listing, in which we model land 
disposal units and, if we find risks of concern, promulgate a listing 
that includes wastes sent to combustion. We have taken this approach 
because we anticipate difficulties developing modeling that could 
adequately capture the various complex aspects of this combustion, 
including destruction efficiency, formation of toxic products of 
incomplete combustion, partitioning of uncombusted toxicants among air, 
scrubber water and ash, and transport.\49\
---------------------------------------------------------------------------

    \49\ While we attempted to model combustion of these wastes in 
the 1994 proposed listing determination for dyes and pigment wastes, 
commenters argued strenuously that our modeling was overly 
conservative, and presented stack testing for aniline showing much 
higher destruction efficiency for aniline than we had assumed, and 
risk assessment results showing very low risk (see ``Comments on the 
1994 Proposed Rule for Dye and Pigment Wastes,'' originally 
submitted by BASF Corporation, December 15, 1995, in the docket for 
today's proposal).
---------------------------------------------------------------------------

    However, we are soliciting comment on the option of exempting K181 
nonwastewaters sent to combustion facilities. Without risk assessment 
results to rely on, we have qualitatively assessed the data we have 
gathered regarding current combustion management practices for dyes 
and/or pigments nonwastewaters. The TRI is our primary source of 
information. It shows that ten facilities send nonwastewaters offsite 
for thermal treatment and two facilities combust wastes onsite. All ten 
of the offsite treatment facilities are RCRA TSDFs. However, we cannot 
determine for certain whether the wastes of concern to this proposal 
are in fact being combusted in Subtitle C combustors, or in co-located 
Subtitle D combustors.
    The two facilities that conduct onsite thermal treatment are 
Eastman (Kingsport, TN) and BASF (Huntington, WV). Eastman apparently 
operates both hazardous and nonhazardous waste combustion.\50\ BASF 
operates a nonhazardous waste unit used to treat still bottoms and 
related wastes from an aniline/triarylmethane process.\51\ While this 
boiler is not permitted for managing hazardous wastes, it is covered by 
a State permit that sets low release limits for aniline (40 kg/yr).\52\ 
As part of BASF's 1995 comments on our initial proposed listing 
determination for these wastes, they submitted a risk assessment for 
this unit demonstrating low risk potential.
---------------------------------------------------------------------------

    \50\ See Listing Background Document.
    \51\ See the docket for today's proposal for ``Comments on the 
1994 Proposed Rule for Dye and Pigment Wastes,'' originally 
submitted by BASF Corporation, December 15, 1995 (Attachment C), for 
a more complete description of this unit.
    \52\ See BASF's air permit in the docket for today's proposal.
---------------------------------------------------------------------------

    The available information regarding current combustion indicates 
that the majority, and perhaps all, of the wastes that are combusted 
are managed either in Subtitle C units, or units with air permits that 
specifically address key K181 constituents potentially present in those 
wastes. We solicit comments on whether this is sufficient information 
to support an exemption from K181 for wastes that are managed in 
combustion units that are permitted under Subtitle C, or that have 
other relevant CAA permits.
3. Applicability to Wastes That Are Already Hazardous
    We are also proposing that wastes that are subject to another 
hazardous waste listing under Sec.  261.31-33 or a hazardous waste 
characteristic under Sec.  261.21-24 would not be subject to listing 
under K181. Generators would not count the mass of any constituent of 
concern in these wastes toward the loading limits in the K181 listing.
    This avoids complications that would arise in implementing the 
loadings-based listing. For example, consider an azo dye producer who 
generates a sludge meeting the F004 listing due to solvent use during 
production. This F004 sludge could also be captured by the narrative 
description in the K181 listing, as it would be a nonwastewater from 
the production of azo dyes. If the facility also generates another 
separate wastewater treatment sludge from the production of azo dyes, 
the facility would need to assess the total mass of a constituent of 
concern for all wastes potentially subject to the K181 listing. Thus, 
the facility would have to add the mass of any constituents of concern 
in the F004 waste to the mass of the constituents present in the 
treatment sludge. It is possible that the additional mass from the F004 
waste would cause the total mass of some constituent in the treatment 
sludge to meet or exceed the listing levels in Sec.  261.32(c)(1) or 
(c)(2). However, the F004 waste is already hazardous and subject to 
full Subtitle C control. Regulating the treatment sludge based on the 
additional mass in the

[[Page 66197]]

listed waste appears inappropriate, given that the F004 waste could not 
be disposed with the treatment sludge as non hazardous waste. 
Therefore, we are proposing that wastes that are already classified as 
hazardous wastes would not be subject to listing as K181.
    If the above example is modified, such that the F004 waste is 
generated in commingled form with the wastewater treatment sludge 
(e.g., from commingled wastewaters), then the waste would be F004, 
regardless of the mass levels present in the K181 constituents of 
concern. EPA has not evaluated all of the hazardous constituents 
reasonably expected to be present in F004 wastes and set levels at 
which it is safe to dispose of them in nonhazardous waste landfills 
with or without composite liners. In this case, therefore, our proposed 
approach would mean that the F004 wastes would remain hazardous, but 
the waste would not be subject to the K181 listing.

C. Why Are We Proposing Not To List Wastewaters?

    As described previously in section III.E.3, we evaluated the 
potential management of wastewaters from dyes and/or pigments 
production in two scenarios: Tanks and lined surface impoundments. 
After consideration of the risk assessment modeling results, the 
plausibility of each management scenario, and the level of 
environmental protection provided by existing and upcoming air 
regulations, we are proposing not to list wastewaters from dyes and/or 
pigments production. Our logic supporting this determination is 
presented below.
1. Air Emissions From Tanks and Surface Impoundments
    We assessed air emissions from both tanks and surface impoundments, 
as previously described, and calculated mass loadings for those CoCs 
with inhalation toxicity benchmarks. Because the modeled mass loading 
results for these scenarios were very similar, we are presenting a 
combined analysis of these results here.
    As discussed previously in section III.G.2.g, we assumed that 
calculated allowable loadings in excess of 100,000 kg/yr were 
implausible and therefore screened out those constituents for which our 
modeling gave a calculated allowable loading in excess of 100,000 kg/
yr.
    Ten constituents had calculated allowable loadings less than 
100,000 kg/yr. Table IV-5 presents these CoCs, the modeled allowable 
loading results for tanks and surface impoundments (synthetic lined), 
theoretical concentrations (using the estimated average wastewater 
quantity), a summary of available analytical data, and total onsite and 
offsite releases reported in the TRI by the dyes and/or pigments 
production industries.

                              Table IV-5.--Analysis of Air Pathway Loading Results
----------------------------------------------------------------------------------------------------------------
                                                            Theoretical
                                          Calculated         wastewater         Available      TRI: D&P industry
                                      allowable loading  concentration for   analytical data     total on- and
       Constituent of concern         for tanks/surface    tanks/surface     for wastewaters    offsite releases
                                      impoundments (kg/     impoundments          (ppm)         (kg/yr, RY2000)
                                             yr)               (ppm)
----------------------------------------------------------------------------------------------------------------
Naphthalene.........................        2,200/2,200            3.6/3.6          0.011-0.1              1,294
o-Toluidine.........................        2,600/2,400            4.2/3.9         0.044-0.16                234
Aniline.............................        2,700/1,500            4.4/2.4           0.66-120            237,100
Azobenzene..........................        3,700/2,400            5.2/3.9        0.093-0.104              (\3\)
o-Anisidine.........................        9,500/2,900           15.5/4.7               0.76                  0
p-Cresidine.........................      50,000/13,000          81.3/21.1              (\1\)              5,680
Formaldehyde........................  100,00    160/        0.064-0.819             10,962
                                               0/14,000               22.8
Toluene-2,4-diamine.................  100,00    160/              (\2\)                817
                                               0/51,000               82.9
1,2-Dichlorobenzene.................      71,000/63,000            115/102        0.004-0.059             31,490
Benzidene...........................  100,00    160/       0.0055-0.023                 0
                                               0/89,000                145
----------------------------------------------------------------------------------------------------------------
\1\ Not reported
\2\ Not analyzed.
\3\ Not a TRI constituent.

    With the exception of aniline (discussed further below), we believe 
that it is highly unlikely that these constituents would be present at 
levels above the calculated allowable mass loadings in any facility's 
wastewaters. Our assessment of the TRI releases reported by the dyes/
pigments industries indicates that the total releases from the entire 
industry are less than the calculated allowable mass loading limits 
predicted by our risk assessment modeling that would be applied on a 
facility-specific basis (except for aniline). For example, total 
reported releases of naphthalene by dye and/or pigments manufacturers 
were 1,294 kg/yr, which is less than the calculated allowable loading 
level of 2,200 kg/yr. This comparison greatly overestimates potential 
wastewater levels because total TRI releases include releases from all 
facilities to air and land, as well as water.
    The available analytical data support the TRI analysis, showing 
that (with the exception of aniline), these constituents are unlikely 
to be present in dyes and/or pigments wastewaters at concentrations 
high enough to result in mass loadings above the calculated allowable 
levels. The theoretical concentrations presented in the table above 
assume an average wastewater quantity of 615,000 MT/yr. The majority of 
the facilities in this industry are expected to generate lower 
wastewater quantities (i.e., the median wastewater quantity is 119,000 
MT/yr), and thus the theoretical concentration of these constituents in 
these wastewaters at the calculated allowable levels would be even 
higher, and thus more implausible.
    Aniline, however, may in fact be present in dyes and/or pigments 
industry wastewaters at levels exceeding the calculated allowable 
loading of 2,700 kg/yr. Of the four dyes and/or pigments manufacturers 
reporting aniline releases in the TRI, two report releases of aniline-
bearing wastewaters to POTWs in excess of 2,700 kg/yr, and are 
presumably managing these wastewaters in tanks prior to discharge. One 
of these two facilities (BASF/Huntington, WV) is operating under a 
state air permit that limits the actual aniline air emissions from 
wastewater treatment to levels well below the potential wastewater 
loading limit for aniline (permit available in docket for today's 
rulemaking). The

[[Page 66198]]

second facility (Sun Chemical/Muskegon, MI) treats its wastewaters via 
powdered activated carbon and biological treatment prior to discharge 
to a POTW.\53\ The treatment unit in use has been subject to State air 
permits in the past. The facility recently obtained a wavier from 
permitting requirements for the treatment unit based on analysis 
showing that emissions (including aniline) are very low.\54\
---------------------------------------------------------------------------

    \53\ Contact between Dr. Robert Kayser, OSW and John Fagiolo, 
Remedial Project Manager, EPA, June 24, 2003.
    \54\ Contact between Dr. Robert Kayser, OSW and Tracey McDonald, 
Air Quality Division, Michigan Department of Environmental Quality, 
June 24, 2003 in the docket for today's rule.
---------------------------------------------------------------------------

    Existing federal air regulations that pertain to facilities 
manufacturing dyes and pigments are summarized in section II.E. Aniline 
is regulated as a ``hazardous air pollutant'' (HAP) under the Clean Air 
Act. In general, the existing and upcoming regulations on air releases 
will limit the actual releases of many organic chemicals from dyes and/
or pigments wastes. Based on our evaluation of the information 
available, we believe that air releases of aniline at dyes and/or 
pigments facilities are adequately controlled and such releases do not 
present significant risks.
    We note that we could not make a TRI comparison for azobenzene 
because it is not a TRI constituent. Azobenzene is a degradation 
product associated with certain specialized dye and/or pigment 
production (e.g., aniline-based triarylmethane products), rather than 
an actual intermediate. We do not believe that azobenzene would be 
present in wastewaters above the mass loading limits, but expect it to 
be present at low levels in very few wastes. The historical analytical 
data support this conclusion.
    As described previously in section III.G.2.d.i, we assessed the 
biodegradation of certain constituents by assigning them rates from 
structurally similar constituents. We also, as an alternative, assessed 
these chemicals using a default degradation rate of zero. In the 
wastewater analysis, the constituents affected were aniline and 
azobenzene. The alternate calculated allowable loadings determined for 
aniline were 2,000 kg/yr and 980 kg/yr for the tank and surface 
impoundment scenarios, respectively. The alternate values for 
azobenzene were 3,200 kg/yr and 1,700 kg/yr for the tank and surface 
impoundment scenarios, respectively.
    We solicit comments on our proposed decision not to list 
wastewaters and set mass loading-based regulatory levels derived from 
the air emission pathways from tanks and/or surface impoundments. We 
also request comments on an alternative approach that would list 
wastewaters from the production of dyes and/or pigments, establishing 
loading limits in a manner similar to that being proposed today for 
K181. We might adopt this alternative if, for example, we received data 
and information that these wastewaters are more likely to exceed the 
calculated mass loading limits than our current data indicates, or our 
modeling was insufficiently conservative, or that existing air 
regulations are not effectively controlling risks from aniline.
2. Groundwater Releases From Surface Impoundments
    The dyes/pigments industries are known to operate a small number of 
surface impoundments (see section III.E.3). As a result, we modeled the 
management of wastewaters in unlined, clay-lined, and synthetic-lined 
surface impoundments for the groundwater pathway. We believe that the 
synthetic-lined impoundment is the most plausible management scenario 
for these wastes. Our analysis (see section III.G.2.g) indicates that 
releases to groundwater from impoundments with synthetic liners are 
unlikely to pose risk because the calculated allowable mass loadings 
all exceeded 100,000 kg/yr, an implausible loading in these 
wastewaters. While clay-lined impoundments are in use at one dye 
manufacturing site, we have not selected this scenario as plausible 
because these impoundments are not used to manage untreated wastes (see 
following discussion). We also determined that the unlined scenario for 
surface impoundments is not plausible for these wastes (see section 
III.D.2).
    Our risk modeling of the clay-lined impoundment scenario indicates 
that the potential listing loading levels are below 100,000 kg/yr for 
31 of the 35 constituents of concern (see the Risk Assessment 
Background Document for these results). We considered whether the one 
facility known to be operating clay-lined impoundments (Lobeco, located 
in Lobeco, SC) is likely to be managing wastewaters with constituents 
at levels of concern.
    Lobeco indicated that their wastewater treatment system consists of 
neutralization, aeration with activated sludge, and holding ponds.\55\ 
Staff from South Carolina's Department of Health and Environmental 
Control described four in-ground units at this site: An equalization 
unit and a digestion unit, both concrete-lined (with secondary clay 
liners), and two clay-lined holding basins. The holding basins receive 
wastewater treated in the concrete lined units prior to discharge to 
surface waters under an NPDES permit. 1999 TRI data for this facility 
shows that they had low levels of two constituents of potential concern 
in the influent to their wastewater treatment facility: Formaldehyde 
(<1 part per billion or ppb) and naphthalene (1 ppb-1 ppm). The 
facility reported that the only chemical reported to be discharged to 
surface water was ammonia. Consequently, we conclude that the treatment 
in the upstream units removed the naphthalene and formaldehyde before 
wastewaters reached the clay-lined holding basins.
---------------------------------------------------------------------------

    \55\ http://www.lobecoproducts.com/environment.html.
---------------------------------------------------------------------------

    The facility's NPDES monitoring data shows that only one of the 
constituents of concern for this listing for which the facility 
conducted analysis was detected in their effluent; copper was found at 
0.3-0.9 pounds/day (50-150 kg/yr), well below the copper calculated 
allowable loading limit of 5,600 kg/yr for clay-lined impoundments. 
Since we believe the water in the clay-lined holding basins closely 
resembles the effluent, we do not believe that these particular 
impoundments are likely to manage wastewaters that would contain 
constituents of concern at levels above the calculated allowable mass 
loading limits.
    We request comment on our proposal not to list wastewaters from 
dyes and/or pigments production and not to set loading levels derived 
from the groundwater pathway for clay-lined surface impoundments. We 
also request comments on an alternative approach that would list 
wastewaters from the production of dyes and/or pigments that are 
managed in clay-lined surface impoundments, establishing mass loading 
limits in a manner similar to that being proposed today for K181. This 
alternative approach would not list as hazardous those wastewaters that 
are managed in synthetic-lined impoundments or in tanks. We would 
consider this alternative further if we receive data and information 
that, for example, would indicate that there are additional clay-lined 
surface impoundments in use by the industry or our assessment of the 
risks posed by wastewaters is insufficiently conservative.

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

    Today's proposal would result in a new hazardous waste listing that 
differs from previously promulgated listed hazardous wastes in that it 
includes

[[Page 66199]]

constituent-specific mass loading limits to define the scope of the 
listing. The primary purpose of this ``mass loadings-based listing'' is 
to establish levels at the point of generation of a waste, at or above 
which that waste is considered to be a listed hazardous waste (i.e., 
``entrance'' levels). Wastes that are generated with constituent masses 
below these levels (on an annual basis) would not be subject to these 
listings.
    Residuals from the treatment, storage, or disposal of listed 
hazardous wastes are usually classified as hazardous wastes based on 
the ``derived-from'' rule (see 40 CFR 261.3(c)(2)(i)).\56\ We are not 
proposing to use the mass loading-based levels as ``exit'' levels for 
residues from treatment of dyes and/or pigments production 
nonwastewaters (K181). Thus, we are not proposing any exemption to the 
mixture rule for the K181 wastes.
---------------------------------------------------------------------------

    \56\ Also, the ``mixture'' rule (see 40 CFR 261.3(a)(2)(iii) and 
(iv)) provides that, with certain limited exceptions, any mixture of 
a listed hazardous waste and a solid waste is itself a RCRA 
hazardous waste.
---------------------------------------------------------------------------

    In the listing determination for paint manufacturing waste solids, 
we proposed that the concentration-based listing levels would also 
serve as ``exit'' levels. That is, we proposed that waste solids that 
were treated to below the listing limits could exit the hazardous waste 
system and would become nonhazardous waste (66 FR 10110). We considered 
proposing to use the mass loading limits as exit levels for dye and 
pigment wastes, but we decided not to do this for several reasons. Most 
important, the mass-based loading is different from a concentration-
based listing, because the proposed mass-based approach already builds 
in an exemption for wastes with constituent masses below the loading 
limit. Thus, the proposed approach allows a facility to handle as 
nonhazardous any wastes containing constituents of concern up to the 
loading limit. In contrast, a concentration-based listing would require 
all wastes that meet the listing level to be handled as hazardous.
    In addition, an exemption for treatment residuals would be complex 
to implement. For example, a facility could generate an initial portion 
of waste up to the mass loading limit and handle that portion as 
nonhazardous. With an exemption for treatment residuals, the facility 
could then treat additional wastes and claim the residuals are below 
the loading limits. However, given that the facility already generated 
and disposed of wastes that contained the permissible mass loading 
limits, it would be inappropriate to classify the treatment residuals 
as nonhazardous.
    Difficulties would also arise in any exemption for treatment 
residuals, if such treatment were to occur offsite. The offsite 
facility would have to demonstrate that the conditions set out in the 
proposed regulations were met and document that the waste is 
nonhazardous (i.e., according to the proposed listing regulations in 
subparagraphs (c), (d) and (e)). An offsite treatment facility may not 
have the knowledge to track the cumulative loadings from the generator 
to ensure that the conditions for becoming nonhazardous are met. 
Furthermore, the treatment facility would likely be accepting a variety 
of hazardous wastes from numerous generators. Thus, even if this 
facility was able to comply with the conditions for determining the 
treated waste is not K181, the treatment residuals could still carry 
other hazardous waste codes under the mixture rule (see 40 CFR 
261.3(a)(2)(iv)), as well as the derived-from rule. Thus, any 
implementation scheme for offsite treatment facilities appears 
problematic.
    Finally, the treatment of any waste that is classified as K181 at 
the point of generation would have to comply with hazardous waste 
regulations. For example, if the waste was incinerated, the combustion 
unit would have to be permitted under Subtitle C. Therefore, the 
benefits of possibly classifying the treatment residuals as 
nonhazardous do not appear to be significant, compared to the cost of 
constructing and permitting a hazardous waste treatment unit (which, if 
we limited any exemption to onsite treatment, would have to be located 
onsite).
    We seek comment on the need for any exemption for treatment 
residuals, and how such an exemption could be structured. If we were to 
adopt such an exemption, we would add an exemption to the derived-from 
rule (e.g., in Sec.  261.3(c)(2)(ii)), which would require the 
generator to show that the treated waste no longer meets the listing 
levels of K181 (using the determination process proposed in Sec.  
261.32(d)), and that the residuals meet the requirements specified in 
part 268. As described above, we believe that any exemption from the 
derived-from rule would be most applicable to generators who treat 
their waste onsite, because the generator would have the information 
needed to track the cumulative mass of the various constituents in the 
treated waste.

E. What Is the Status of Previously Disposed Wastes and Landfill 
Leachate From Previously Disposed Wastes?

    The Agency has been clear in the past that hazardous waste listings 
normally apply to wastes disposed of prior to the effective date of a 
listing, even if the landfill ceases disposal of the waste when the 
waste becomes hazardous. (See 53 FR 31147, August 17, 1988.) We also 
have a well-established interpretation that listings apply to leachate 
derived from the disposal of listed hazardous wastes, including 
leachate derived from wastes meeting the listing descriptions that were 
disposed before the effective date of a listing. Leachate derived from 
the treatment, storage, or disposal of listed hazardous wastes is 
classified as a hazardous waste by virtue of the ``derived-from'' rule 
in 40 CFR 261.3(c)(2). We are not reopening nor taking comment on any 
of these issues with this proposed rulemaking.
    As set out in detail in the August 1988 notice, this does not mean 
that landfills simply holding wastes that are listed now as hazardous 
become subject to Subtitle C regulation. However, previously disposed 
wastes now meeting a listing description that are actively managed,\57\ 
including actively managed residues such as leachate that are derived 
from such wastes, become subject to Subtitle C regulation. (See 53 FR 
at 31149, August 17, 1988.) In most circumstances, active management of 
leachate is exempt from Subtitle C regulation. Specifically, management 
of leachate in wastewater treatment tanks prior to discharge under the 
CWA is exempt from RCRA regulation (40 CFR 264.1(g)(6)). Discharge to a 
POTW via the sewer system, where leachate mixes with domestic sewage, 
is also excluded from RCRA jurisdiction (see RCRA section 1004(27) and 
40 CFR 261.4(a)(1)). Similarly, discharge to navigable waters is 
excluded from RCRA jurisdiction (see RCRA section 1004(27) and 40 CFR 
261.4(a)(2)).
---------------------------------------------------------------------------

    \57\ The Agency often uses the term ``active management'' as a 
catch-all term to describe the types of activities that may trigger 
RCRA Subtitle C permitting requirements. In general, those 
activities are hazardous waste treatment, storage, and disposal, all 
of which are defined in 40 CFR 260.10. It is important to note, 
however, that EPA interprets the disposal that triggers RCRA 
Subtitle C permitting requirements to be the types of disposal as 
described in the definition of ``disposal facility'' in 40 CFR 
260.10, and not the broader, more general definition of ``disposal'' 
in that section and in RCRA section 1004(3). See, e.g., 53 FR 31149 
(August 17, 1988). Instead, the latter, broader definition is used 
to determine the applicability of certain statutory provision, such 
as RCRA section 7003, 7002(a)(1)(B), 3013, and 3007. See, e.g., 55 
FR 8759 (March 8, 1990).

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

[[Page 66200]]

    It is possible that nonwastewaters within the proposed scope of 
K181 (and the relevant mass loading limits) may have been disposed in 
landfills. However, the proposed listing for K181 waste is a mass 
loading-based listing, and it would be difficult to know whether the 
previously disposed wastes that meet the narrative description of K181 
did, in fact, have constituent mass loadings that would be at or above 
the K181 regulatory levels. We don't anticipate that records 
documenting the mass of proposed constituents of concern in these 
wastes exist for previously disposed wastes.
    Typically, the status of the previously disposed waste is not an 
issue, unless the waste is actively managed in some way. One way this 
question might arise is if the derived-from leachate is actively 
managed; we discuss this question below. This issue would arise more 
directly, however, if the waste previously disposed were to be 
excavated for further management, perhaps as part of a corrective 
action or other remediation effort. In this case, we believe it would 
be most practical to evaluate the managed waste as if it were newly 
generated. That is, a facility engaged in excavation of wastes that are 
potentially K181 would use the procedures in the proposed listing to 
determine if the constituents of concern meet or exceed the relevant 
mass loading limits. If the mass loadings are met or exceeded, then the 
actively managed waste would be K181. As noted, except in cases where 
the origin of the waste and its constituents are well documented, we 
believe classifying a previously disposed waste as K181 will be 
difficult, at best.
    If actively managed landfill leachate and gas condensate derived 
from the newly-listed wastes proposed for listing in today's notice 
could be classified as K181, we would be concerned about the potential 
disruption in current leachate management that could occur, and the 
possibility of redundant regulation.\58\ This issue was raised to the 
Agency in the context of the petroleum refinery waste listings (see 63 
FR 42173, August 6, 1998). A commenter expressed concern that, because 
some of the commenter's nonhazardous waste landfills received newly-
listed petroleum wastes prior to the effective date of the listing 
decision, the leachate that is collected and managed from these 
landfills would be classified as hazardous. The commenter argued that 
this could lead to vastly increased treatment and disposal costs 
without necessarily any environmental benefit. After examining and 
seeking comment on this issue, we published a final rule that 
temporarily defers regulation of landfill leachate and gas condensate 
derived from certain listed petroleum refining wastes (K169-K172) that 
were disposed before, but not after, the new listings became effective, 
provided certain conditions are met. (See 64 FR 6806, February 11, 
1999.) We proposed deferrals for similar wastes derived from landfills 
in the 1999 proposal for the dye and pigment industries (64 FR 40192, 
July 23, 1999), the inorganic chemical manufacturing industries (65 FR 
55684, September 14, 2000), the chlorinated aliphatics industry (65 FR 
67068, November 8, 2000) and the paint and coatings industry (66 FR 
10060, February 13, 2001). We also promulgated a final listing 
determination for the inorganic chemical manufacturing industries that 
retains the deferral (66 FR 58258, November 20, 2001).
---------------------------------------------------------------------------

    \58\ We do not believe that the mass loading limits in the 
proposed K181 listing would be useful in determining if the leachate 
was K181 waste. This is because the mass loading limits in K181 were 
derived for nonwastewaters, not landfill leachate, which are 
wastewaters.
---------------------------------------------------------------------------

    At the time this issue was brought to the Agency's attention in the 
context of the petroleum refinery waste listings, EPA's Office of Water 
had recently proposed national effluent limitations guidelines and 
pretreatment standards for wastewater discharges--most notably, 
leachate--from certain types of landfills. (See 63 FR 6426, February 6, 
1998). In support of this proposal, EPA conducted a study of the volume 
and chemical composition of wastewaters generated by both subtitle C 
(hazardous waste) and Subtitle D (nonhazardous waste) landfills, 
including treatment technologies and management practices currently in 
use. Most pertinent to finalizing the temporary deferral for the 
petroleum refining wastes, EPA did not propose pretreatment standards 
for subtitle D landfill wastewaters sent to POTWs because the Agency's 
information indicated that such standards were not required. EPA 
subsequently finalized its decision that pretreatment standards were 
not necessary (see 65 FR 3008, January 19, 2000).
    The conditions included in the temporary deferral we published on 
February 11, 1999 are that the leachate is subject to regulation under 
the Clean Water Act, and the leachate cannot be stored in surface 
impoundments after a period of two years. See 40 CFR 261.4(b)(15). We 
believe that it was appropriate to temporarily defer the application of 
the new waste codes to such leachate in order to avoid disruption of 
ongoing leachate management activities, while the Agency decides if any 
further integration is needed of the RCRA and CWA regulations 
consistent with RCRA section 1006(b)(1). We believe that it is still 
appropriate to defer regulation and avoid leachate management 
activities, and to permit the Agency to decide whether any further 
integration of the two programs is needed. As such, we would be 
concerned about forcing pretreatment of leachate even though 
pretreatment is neither required by the CWA, nor needed. Therefore, we 
are proposing to temporarily defer the regulation of landfill leachate 
and gas condensate derived from management of K181 waste that we are 
proposing for listing in today's rule, with the same conditions as 
described in 40 CFR 261.4(b)(15) for petroleum wastes. We request 
comment on this proposed conditional deferral.

V. Proposed Requirements for K181 Determinations

    We are proposing that listing determinations for K181 would be 
self-implementing. This means that you (the waste generator) would be 
responsible for determining whether or not your wastes are K181 listed 
hazardous wastes at the point of generation based on the proposed 
procedures we describe below. First, you must determine whether your 
nonwastewaters are included within the categorical K181 text (i.e., 
nonwastewaters from the production of azo, triarylmethane, perylene and 
anthraquinone dyes or pigments). If so, then you would need to 
determine if your nonwastewaters could contain any of the K181 
constituents of concern (CoCs). If your wastes at the point of 
generation could not contain any of the CoCs, we are proposing that 
your wastes are not subject to K181.
    If your dyes and/or pigments production nonwastewaters might 
contain any of the K181 CoCs and you wish to demonstrate that the mass 
loadings of these constituents in your waste are below the regulatory 
levels, you would use one of two demonstration methodologies, depending 
on the annual quantity of waste you generate. If you generate or expect 
to generate 1,000 metric tons or less of these wastes in a calendar 
year, then you would have the option of testing your wastes or using 
your knowledge of the wastes to demonstrate that they are nonhazardous. 
If you expect to generate more than 1,000 metric tons/year of these 
wastes in a calendar year, then you would have to test the wastes 
annually to demonstrate that they are nonhazardous. Our reasons

[[Page 66201]]

for proposing this two-tiered approach and requiring annual testing of 
larger quantity wastes are discussed in section V.A.3 below.
    If you determine that part or all of your dyes and/or pigments 
production nonwastewaters are nonhazardous, we are proposing to 
require, under the authority of sections 2002 and 3007 of RCRA, that 
you keep certain records of your determination at the generating site 
(onsite). You must make a new demonstration each calendar year. Your 
wastes, however, would be hazardous if your onsite records and/or 
testing conducted by EPA or an authorized state demonstrate the 
presence of one or more CoCs at or above the listing mass loading 
levels. Your wastes would also be hazardous if the landfill disposal 
conditions were applicable, but were not satisfied.
    Note that the proposed approach would mean that even if your mass 
loadings meet or exceed the specified mass loading levels on an annual 
basis, you may still manage as nonhazardous all wastes generated up to 
the mass loading limit. In other words, we are proposing that the K181 
listing would apply to only the portion of wastes that meet or exceed 
the mass loadings. This is illustrated by the following example. Using 
the proposed mass loading for toluene-2,4-diamine in Table IV-1 (0.99 
kg/yr.), if a facility generates 200 kg/yr, the amount up to just below 
the mass loading limit in Sec.  261.32(c)(1) (i.e., 0.99 kg/yr.) would 
be nonhazardous, and the facility would only be required to handle the 
waste containing the rest of the mass of toluene-2,4-diamine as 
hazardous waste. Furthermore, if the generator sends this waste to a 
landfill that meets the design requirements under Sec.  258.40, then 
the generator may dispose up to just below the mass loading limit in 
Sec.  261.32(c)(2) (i.e., 140 kg/yr) as nonhazardous and handle the 
remaining portion above this limit as hazardous. This approach has some 
advantages. First, this is consistent with the results of the risk 
analysis, which indicates that quantities up to the loading limit could 
be safely managed as nonhazardous. Second, this would simplify the 
facility's concern with how to manage wastes generated during the year, 
if the facility is not certain how close the waste will come to meeting 
the loading limit for the entire year. Thus, if the facility has 
sufficient knowledge to know that the cumulative total for intermediate 
batches of the waste will not meet the loading limit, the facility can 
safely handle and dispose of this portion of the waste as nonhazardous. 
If or when the waste reaches the loading limit, then the facility 
simply handles all subsequent waste as hazardous.
    However, for wastes which meet or exceed the mass loading 
threshold, another alternative would be for the loading limit to apply 
to all of a generator's waste, including the waste generated before the 
mass loading limit is met or exceeded. Under this option, a generator 
would need a high level of certainty that wastes generated for the 
calendar year would not meet or exceed the mass loading limits in Sec.  
261.32(c)(1), or if the waste is sent to a landfill meeting the Sec.  
258.40 design criteria, the waste would have to be below the limits in 
Sec.  261.32(c)(2). This approach would be more consistent with past 
listings, in which wastes with similar characteristics would be managed 
the same, rather than allowing a portion of the waste to be managed as 
nonhazardous. This approach would provide added incentive to a 
generator to manage potentially hazardous wastes properly and perhaps 
to reduce mass loadings through pollution prevention actions. However, 
this approach may result in serious problems for a generator who, in 
good faith, underestimates the mass loadings for a calendar year. If 
the generator manages the waste as nonhazardous, and then discovers 
that wastes generated later in the year cause the total waste to meet 
or exceed mass loading limits, then the generator would be in violation 
for improperly managing hazardous waste. Furthermore, if a Subtitle D 
landfill accepted the initial waste batches as nonhazardous, then when 
the generator reaches or exceeds the mass loading for that calendar 
year, then all of the waste from that generator in that calendar year 
would be hazardous waste subject to the K181 listing. The landfill 
owner would have placed hazardous waste in units that do not meet the 
requirements of Subtitle C. We solicit comment on this alternative 
approach.
    The following discussion covers how we are proposing that you could 
demonstrate that your waste doesn't contain any CoCs at levels of 
concern (section III.A), and how you could demonstrate that your waste 
could be placed in a landfill that meets or exceeds the design criteria 
in Sec.  258.40 as nonhazardous (section III.B). Section C describes 
the proposed status of your wastes prior to completion of your 
nonhazardous determination. Section D provides examples illustrating 
how the listing determination for K181 might work. Section E describes 
compliance and enforcement implications for the determinations.

A. How Do I Demonstrate That My Wastes Are Nonhazardous?

    We are proposing that you could determine that your wastes are not 
listed as K181 because they don't contain CoCs at levels in excess of 
the listing levels in a number of ways.
1. Categorical Determination
    You could determine that your wastes do not fall within the 
categorical K181 text included in the proposed regulations for this 
action under Sec.  261.32(a). For example, if you do not produce any 
azo, triarylmethane, perylene, or anthraquinone products (as described 
in proposed Sec.  261.32(b)), your nonwastewaters would not fall within 
the scope of the listing. Any wastes that are already hazardous due to 
the characteristics (Sec. Sec.  261.21-261.24) or are otherwise listed 
(Sec. Sec.  261.31-261.33) do not also fall within the scope of the 
listing. Wastewaters are not within the scope of the listing.
2. No K181 Constituents of Concern
    We are proposing at Sec.  261.32(d)(1) that you can use your 
knowledge of your wastes to demonstrate that your wastes do not contain 
any of the K181 CoCs identified in Sec.  261.32(c)(1). You would have 
to compare the CoCs identified in Sec.  261.32(c)(1) for K181 to 
constituents expected in your wastes. You could use process knowledge 
(e.g., knowledge of the constituents in your wastes based on existing 
sampling and analysis data and/or information about raw materials used, 
production processes used, and reaction and degradation products 
formed) to make these initial determinations. If you determine that 
your potential K181 wastes at the point of generation do not contain 
any of the CoCs for K181 listed in Sec.  262.32(c)(1), then you can 
determine your wastes to be nonhazardous. We are proposing that you 
keep documentation onsite for three years supporting your 
determinations that wastes are nonhazardous based on your knowledge 
that they do not contain any of the CoCs. We discuss enforcement of 
this and other recordkeeping provisions below in section E.
3. Low Quantity Versus High Quantity Wastes With K181 Constituents
    If you generate less than 1,000 MT/yr of nonwastewaters that meet 
the K181 categorical description, you are eligible for determining that 
your wastes do not exceed the Sec.  261.32(c)(1) or (c)(2) listing 
levels using the procedures proposed in Sec.  261.32(d)(2). These 
procedures are based on your knowledge of your wastes, and do not 
require that you

[[Page 66202]]

conduct waste analysis to support your demonstration. The procedures 
that apply to generators of quantities less than 1,000 MT/yr of waste 
are described further in section 4 below. If you generate more than 
1,000 MT/yr, you would have to use the more extensive procedures 
proposed in Sec. 261.32(d)(3) to demonstrate that your wastes are not 
hazardous, as described further in section 5, below.
    To support either a Sec.  261.32(d)(2) or Sec.  261.32(d)(3) 
demonstration, you will need to keep track of how much potential K181 
waste you generate from January 1 to December 31 of each year. For the 
year that this listing becomes effective, the demonstration would cover 
the period of time between the effective date and December 31 of that 
year. We are proposing a calendar year basis for these demonstrations 
to ease implementation of the rule, ensuring that industry and 
regulators have a common, clear understanding of the time period 
covered by such demonstrations.
    In the proposed categorical K181 text, these wastes are defined as 
nonwastewaters from the production of dyes and/or pigments (including 
nonwastewaters commingled at the point of generation with 
nonwastewaters from other processes) that are not otherwise already 
listed or captured by the hazardous waste characteristics. To the 
extent that your nonwastewaters from other processes are segregated 
from wastes that fall within the scope of K181, they would not be 
included in your K181 waste quantity determination. Similarly, your 
dyes and/or pigments production wastes that are listed as hazardous for 
listings other than K181, or that are characteristically hazardous 
would not be included in your K181 waste quantity determination. 
However, if you generate a commingled waste (such as wastewater 
treatment sludge or other wastes) that contains waste contributions 
from both K181 and non-K181 sources (that are not otherwise hazardous), 
the entire commingled waste volume would be included in your K181 waste 
quantity determination, until and unless you were to segregate these 
sources. See discussion above in section IV.A.7 on commingled wastes.
    The rationale for the selection of 1,000 metric tons per year (MT/
yr) cutoff for the two tiers is included in the docket for today's 
rule.\59\ In general, the 1,000 MT/yr cutoff for nonwastewaters (above 
which testing is required) is intended to ensure that the largest 
quantities of nonwastewaters generated by the dyes and/or pigments 
production facilities are tested and, at the same time, to minimize the 
burden on small generators. We believe that larger quantities of wastes 
have the potential for posing greater environmental risk than smaller 
quantities of wastes if a nonhazardous determination based on knowledge 
turns out to be inaccurate. Therefore, we believe it is reasonable to 
require larger quantity waste generators to test their wastes to make 
their determination, while smaller quantity waste generators are given 
the option to either test their wastes or use knowledge of their wastes 
annually to make a determination. We request comment on the 
appropriateness of giving smaller quantity waste generators the option 
of using knowledge of their wastes in making such a demonstration. We 
will consider requiring smaller quantity waste generators to test their 
wastes, like the larger quantity waste generators, if significant and 
defensible arguments are presented by commenters to support these 
requirements as necessary and appropriate. We will also consider 
adjusting the 1,000 Mt/yr cut off higher or lower, if we receive more 
precise information on waste quantities.
---------------------------------------------------------------------------

    \59\ See Appendix J in the Listing Background Document for 
``Determination of Tiered Waste Analysis Requirements for Dyes and/
or Pigments Production Nonwastewaters.''
---------------------------------------------------------------------------

    We request comment on an alternative to the two-tiered 
implementation approach discussed above. The alternative implementation 
approach would allow any generator to rely on either process knowledge 
or testing to evaluate the concentrations of CoCs in their 
nonwastewaters, irrespective of the annual quantity generated. This 
implementation approach would be similar to the existing program for 
determining whether a waste exhibits a hazardous characteristic (see 40 
CFR 261.24 and 262.11). Although we prefer the two-tiered approach 
being proposed in today's rule, we will give careful consideration to 
any arguments presented or relevant waste analysis data submitted in 
response to today's proposal (e.g., data showing that only a small 
portion of the wastes in the industry exceed the listing mass levels) 
to decide whether an alternative approach is warranted.
4. Section 261.32(d)(2) Demonstrations for Waste Quantities Less Than 
1,000 MT/yr
    If you generate less than 1,000 MT/yr of wastes potentially subject 
to K181, you can use knowledge to demonstrate that your waste does not 
contain mass loadings above either set of K181 listing levels. The 
following discussion describes our proposed approach to this type of 
demonstration.
    Estimate Waste Quantity: You must estimate how much waste you 
expect to generate in the next calendar year (e.g., based on past 
annual waste generation data and/or current knowledge about future 
generation). You must include all wastes that meet the categorical K181 
listing description to determine the total waste quantity for the dyes 
and/or pigments production nonwastewaters.
    If you initially estimated that your waste generation would be less 
than 1,000 MT/yr and, at any time within the year you exceed 1,000 MT/
yr, you would then no longer be eligible for making a Sec.  
261.32(d)(2) demonstration, and would need to comply with Sec.  
261.32(d)(3) to demonstrate that the remainder of the waste that you 
generate in that calendar year is not hazardous. This means that if you 
had not already been testing your wastes to demonstrate that they are 
not hazardous, you would then have to test your wastes for the 
remainder of the year.
    Track Waste Generation: You must track the actual quantity of dyes 
and/or pigments production nonwastewaters generated during each 
calendar year. Again, you must include all wastes that meet the listing 
description for K181 to determine the total waste quantity for the dyes 
and/or pigments production nonwastewaters.
    Estimate Waste Mass Loadings Using Knowledge: Under a Sec.  
261.32(d)(2) determination, we are proposing that you could use 
knowledge of your wastes (e.g., knowledge of the constituents in your 
wastes based on existing sampling and analysis data and/or information 
about raw materials used, production processes used, and reaction and 
degradation products formed) to estimate waste concentrations for the 
constituents of concern in your waste, and to then calculate estimated 
mass loading levels for the CoCs. You should calculate the cumulative 
mass loadings of the CoCs in your waste over the course of the year, 
taking into consideration known variations in constituent concentration 
over the course of the year. You should estimate the mass loadings of 
the CoCs associated with each shipment of wastes during the year. So 
long as your cumulative estimated mass loading levels during the year 
remain below the regulatory levels, you can manage your waste as 
nonhazardous. Note that a new determination would have to be made in 
subsequent calendar years, with the possible changes noted below under 
Subsequent Annual Determinations.
    Recordkeeping: If you make a knowledge-based determination that

[[Page 66203]]

levels of the CoCs in your wastes are below the regulatory levels, then 
we are proposing that you keep the following records onsite for three 
years to support your Sec.  261.32(d)(2) nonhazardous determination:
    [sbull] The actual quantity of dyes and/or pigments nonwastewaters 
generated.
    [sbull] The process knowledge information that was used.
    [sbull] The calculations performed to determine mass and annual 
running total mass levels for each CoC in the waste during the year 
based on process knowledge information that was used to support a 
nonhazardous determination.
    We discuss the consequences of failing to keep records below in 
section E.
5. Section 261.32(d)(3) Demonstrations for Waste Quantities Greater 
Than 1,000 MT/yr
    If the annual volume of your potential K181 nonwastewaters is 
greater than 1,000 MT/yr and you wish to demonstrate that your wastes 
do not exceed any of the relevant mass-based loading thresholds, we are 
proposing that you must test your wastes. You may not use knowledge of 
the wastes to determine the levels of the CoCs in your wastes. For 
those wastes that you must test, we are proposing that you use the 
following procedures:
    [sbull] Determine which K181 constituents are reasonably expected 
to be present in your waste.
    [sbull] Develop a waste sampling and analysis plan (SAP) (if you do 
not already have one that is appropriate) to collect and analyze 
representative samples of your wastes for those constituents.
    [sbull] Collect and analyze an appropriate number of representative 
samples of your wastes in accordance with your waste SAP.
    [sbull] Record the actual quantity of wastes that is represented by 
your sampling and analysis results.
    [sbull] Calculate CoC-specific mass loadings (multiply the CoC 
concentration by waste quantity).
    [sbull] Determine whether the annual running total mass (year-to-
date mass loadings) for CoCs, including mass totals from earlier in the 
year, are below the K181 listing mass levels.
    [sbull] Keep your records onsite for three years.
    [sbull] Conduct your determination each calendar year to verify 
that the wastes remain nonhazardous.
    Each of these steps is described further below.
    Identify Target Constituents: Using knowledge of your wastes, you 
would need to identify which of the K181 constituents are potentially 
present in your wastes (proposed Sec.  261.32(d)(3)(i)). If you can use 
your knowledge to demonstrate that any of the Sec.  261.32(c)(1) or 
(c)(2) constituents would not or could not be present in your waste, 
you would not be required to conduct any waste analysis for those 
constituents. Your ``knowledge'' might include previous waste analyses 
(conducted for a different purpose), information about raw materials 
used at your facility, production processes in use, and reaction or 
degradation products potentially formed in your process or waste 
handling.
    Waste Sampling and Analysis Plan: You must develop a sampling and 
analysis plan to characterize the levels of the K181 constituents that 
may be present in your wastes. Your SAP must consider any expected 
temporal or spatial fluctuations in CoC concentrations. Your sample 
design must be described in the SAP. The sample design and the 
sensitivity of the analytical methods used must be sufficient to 
determine whether the mass levels of the CoCs in your wastes (based on 
the quantity of wastes you generate annually and concentrations of the 
CoCs in your wastes) are above or below the mass loading-based levels 
for these constituents.
    Conduct Sampling and Analysis: Following your SAP, you then would 
collect the appropriate number of samples, and conduct the planned 
waste analysis. Note that we are not proposing a required number of 
samples that you would need to collect annually to obtain 
representative data for your wastes. When you determine the appropriate 
number of samples to be collected, you must consider facts such as the 
variability of the wastes you generate during the course of the year.
    We are not proposing mandated use of grab or composite sampling to 
obtain samples that are representative of your wastes. However, it 
would be your responsibility to ensure that your sampling and analysis 
is unbiased, precise, and representative of your wastes and to provide 
documentation of this representativeness in your SAP.
    Similarly, we are not mandating the use of specific analytical 
methods, so long as you can demonstrate that the selected methods have 
the appropriate sensitivity, bias, and precision to determine the 
presence or absence of the constituents of concern at or below K181 
mass loading levels. Specifically, we are not proposing to require the 
use of SW-846\60\ methods to comply with these requirements. However, 
you would be required to document the: (1) Detailed standard operating 
procedures (SOPs) for the sampling and analysis protocols that you 
used; (2) sensitivity and bias of the measurement process; (3) 
precision of the analytical results for each batch of waste tested; and 
(4) analytical results.
---------------------------------------------------------------------------

    \60\ EPA Publication SW-846, ``Test Methods for Evaluating Solid 
Waste, Physical/Chemical Methods.''
---------------------------------------------------------------------------

    We would consider the analytical results adequate to support your 
demonstration if you show, using spiked samples for the CoCs, that 
those constituents can be measured at concentrations corresponding to 
the regulatory levels in your wastes, within the analytical method 
performance limits (e.g., sensitivity, bias, and precision). You might 
establish this target concentration for your spiked sample analysis by 
dividing the K181 listing level by your projected annual waste 
quantity. To determine the performance limits for a method, we 
recommend following quality control (QC) guidance provided in Chapters 
One and Two of SW-846. Your method performance data should be retained 
onsite with your analytical results as described below.
    Calculate Mass Loadings: We are proposing that you must record your 
analytical results (Sec.  261.32(d)(3)(iv)), record the quantity of 
your wastes associated with those results (Sec.  261.32(d)(3)(v)), and 
calculate the corresponding constituent-specific mass loadings (product 
of constituent concentration and waste quantity) (Sec.  
261.32(d)(3)(vi)).
    Following sampling and analysis, you must calculate the mass of 
each constituent of concern in your wastes and keep a running total of 
the mass of each CoC throughout the year. In addition, you should also 
calculate mass loading levels for the CoCs in your waste and keep a 
running total of the mass of each CoC prior to disposal of any quantity 
of your waste during the year. The mass of a CoC depends on both the 
quantity of waste and the concentration of the constituent in the 
waste. For example, 1,000 metric tons (1 million kilograms) of waste 
that contains a constituent at a concentration of 1 mg/kg will have 1 
million milligrams (or 1 kilogram) of that constituent. During the 
year, the dyes and/or pigments nonwastewaters that are generated may 
contain different concentrations of a constituent. In this case, the 
mass of a constituent in a fixed quantity of waste will also go up or

[[Page 66204]]

down based on the concentrations of the constituent in the wastes being 
generated. A running total for the mass of a constituent will be the 
sum total of all mass calculations for the constituent in all 
quantities of nonwastewaters that have been generated from beginning of 
the year to present. At the end of the year, if the annual running 
total mass of a CoC is less than its listing mass level, it will be 
possible to demonstrate that a final annual mass of a CoC in the waste 
is below its listing mass level.
    To determine the mass of a CoC, we are proposing that you use the 
maximum detected concentration or, if multiple samples have been 
collected, you may use either the maximum or a concentration based on 
the 95th percentile upper confidence limit on the mean, for each CoC 
and multiply it with the total waste quantity which it characterizes. 
However, we request comment on whether you should be allowed to average 
the concentrations of constituents detected in multiple waste samples. 
Alternatively, we request comment on whether use of another confidence 
limit of the mean (e.g., 90th or 80th percentile) would be more 
appropriate for concentrations of constituents detected in multiple 
samples.
    If your tested wastes are representative of the wastes that will be 
generated during part or the rest of the year (or you can reliably 
determine that these wastes exhibited the maximum concentrations for 
the constituents of concern), then you could use these concentrations 
for each CoC to calculate the additional mass of each CoC in your waste 
based on additional waste that you generate for part or rest of the 
year.
    Compare Loadings to K181 Listing Limits: You would need to track 
the cumulative mass loading of CoCs in your waste over the course of 
each year. As long as the cumulative mass for each CoC in your waste 
remains below the respective K181 levels during the course of the year 
(and you meet the landfill disposal condition, if applicable), then 
your corresponding waste quantity generated to that point in time would 
be nonhazardous. You would, however, continue to be responsible for 
maintaining records that support a nonhazardous determination. However, 
if the cumulative mass for any of the constituents of concern equals or 
exceed its listing mass level during the course of the year, then at 
that point your waste would be listed hazardous waste and subject to 
all applicable RCRA Subtitle C hazardous waste requirements. Waste 
generated in the same year prior to that point would remain 
nonhazardous waste. It would not become subject to the K181 listing. 
Earlier in section V. we solicited comment on an alternative approach 
that would have the listing determination applying to all wastes 
generated in any year that the listing levels are exceeded.
    Keep Records Onsite: Under Sec.  261.32(d)(3)(viii), we are 
proposing that you keep the following records onsite for three years to 
support a nonhazardous determination based on testing:
    [sbull] The sampling and analysis plan used for collecting and 
analyzing samples representative of your wastes, including detailed 
sampling methods used to account for spatial and temporal variability 
of the wastes, and sample preparative, cleanup (if necessary) and 
determinative methods.
    [sbull] The sampling and analysis data (including QA/QC data) and 
knowledge (if used to determine that one or more constituents of 
concern are not present in the wastes) that support a nonhazardous 
determination.
    [sbull] The actual quantity of dyes and pigments nonwastewaters 
generated.
    [sbull] The calculations performed to determine mass and annual 
running total mass levels for each CoC in the waste during the year 
that support a nonhazardous determination.
    [sbull] If the annual testing requirements for your wastes were 
suspended based on three consecutive years of nonhazardous 
determinations (see Subsequent Annual Determinations in the following 
section), then you need to keep the process knowledge information used 
to support a nonhazardous determination. If testing is re-instituted 
(following suspension of testing requirements) because of a significant 
process change (as discussed further below), then describe this process 
change.
    We request comment on the adequacy of the above recordkeeping 
requirements to support a nonhazardous determination. See section E 
below for a discussion of the consequences of failing to meet these 
recordkeeping requirements.
    Subsequent Annual Determinations: We are proposing that you 
continue to perform waste analysis annually after you have determined 
your wastes to be nonhazardous for the purpose of verifying that your 
wastes remain nonhazardous.
    We are proposing that subsequent waste analysis requirements could 
change under the following circumstances:
    (i) After completing annual testing requirements for your wastes 
under Sec.  261.32(d)(3), if the annual running total mass levels for 
the CoCs during any three consecutive years based on sampling and 
analysis results for the CoCs in your wastes are determined to be 
nonhazardous, then the annual testing requirements for your wastes 
would be suspended and you could use knowledge of your wastes annually 
to support a nonhazardous determination.
    (ii) After suspension of the annual testing requirements for your 
wastes, if dyes and/or pigments production or waste treatment processes 
generating these wastes are significantly altered (i.e., if it could 
result in significantly higher levels of the CoCs for K181 in your 
wastes and greatly increase the potential for your wastes to become 
hazardous), then the annual testing requirements for your wastes would 
be reinstituted. In order to again suspend the annual testing 
requirements for your wastes, the requirement under step (i) above 
would have to be met.
    We request comment on whether the annual testing requirement should 
be continued beyond three years, if the generator determines all of its 
dyes and/or pigments production wastes to be nonhazardous for three 
consecutive years. Following suspension of annual testing requirements, 
the generator would still be liable if testing by EPA or an authorized 
state finds the waste to be hazardous.
6. EPA and State Oversight
    Regardless of which approach you choose to determine whether your 
waste contains constituents in amounts lower than the Sec.  
261.32(c)(1) or (c)(2) listing levels, EPA and authorized States may 
make their own determinations for enforcement and oversight purposes. 
EPA and authorized States may sample your waste and calculate the mass 
of any constituent of concern. If EPA concluded that your waste met or 
exceeded the applicable mass limits, it could bring an enforcement 
action under section 3008 of RCRA for violations of hazardous waste 
requirements if you have not managed the waste in compliance with 
applicable Subtitle C requirements. Authorized States could use 
enforcement authorities under State law.

B. How Do I Document Compliance With the Landfill Condition?

    You may determine through a Sec.  261.32(d)(2) or (3) determination 
that your wastes in fact contain K181 constituents at levels in excess 
of the Sec.  261.32(c)(1) listing levels. If your demonstration shows, 
however, that the level in your wastes of the Sec.  261.32(c)(2) 
constituent is below their corresponding Sec.  261.32(c)(2) listing 
level, you may manage your wastes as nonhazardous if

[[Page 66205]]

you dispose of them in a landfill cell subject to Part 258 or Subtitle 
C design standards.
    As noted above in section IV, Sec.  258.40 applies to new MSWLFs or 
new cells at existing MSWLFs. It requires use of a composite liner and 
leachate collection system or an equivalent design approved by the 
Director of an approved state program or by EPA. The composite liner 
must include a synthetic layer. The infiltration rates we modeled for 
landfills with synthetic liners were based on data from landfills with 
composite liners very similar to the design required under Sec.  
258.40. Consequently, we are proposing to allow disposal of dyes and/or 
pigments production nonwastewaters meeting the Sec.  261.32(c)(2) mass 
limits in a municipal landfill cell that is subject to the Sec.  258.40 
design requirements.
    We are specifying that the cell must be subject to these 
requirements because we believe that some operating landfills still use 
older cells that are not required to meet the design requirements. Our 
risk assessment shows that placing dyes and/or pigments nonwastewaters 
with constituent masses up to the Sec.  261.32(c)(2) level in unlined 
landfills would not adequately protect human health and the 
environment.
    EPA has found that 49 states have adequate permitting programs to 
implement the Part 258 regulations for MSWLFs. Permit programs must 
ensure that all MSWLFs in the state comply with the Sec.  258.40 design 
standards. (See 40 CFR 239.6 (e).) No dyes and/or pigments production 
facility is located in the state that lacks EPA approval. Consequently, 
we think that all landfill cells subject to the Part 258 design 
standards are complying with those standards. We request comment, 
however, on whether we should also require a more specific 
demonstration that the landfill cell is in compliance with the design 
standards--and, if so, what it should consist of, and who would be 
responsible. One possibility would be to require the use of a cell 
subject to Sec.  258.40 at a MSWLF that has a permit issued under a 
state program that EPA found to be adequate under 40 CFR part 239.
    Some generators of dyes and/or pigments production wastes may 
choose to send nonwastewaters meeting the Sec.  261.32(c)(2) limits 
wastes to hazardous waste landfills. New landfill units and lateral 
expansions of existing hazardous waste landfills are required to have 
``double'composite liners including synthetic components. See 40 CFR 
264.301 and 265.301. Available data suggest that these liner systems 
have even lower infiltration rates than the liners required under part 
258. We are proposing to give generators the option of sending wastes 
with constituents up to the Sec.  261.32(c)(2) levels to landfill cells 
subject to these stricter hazardous waste liner requirements.
    We request comment on whether a third class of appropriate landfill 
should be included, namely, industrial solid waste landfill cells that 
have liner systems that meet the Sec.  258.40 or Subtitle C standards. 
We request comment on what an appropriate demonstration might consist 
of, and who should be responsible for making the demonstration.
    We are proposing to require you to keep records showing that you 
used a qualifying landfill cell. We are not proposing any specific 
requirements. Rather, we are proposing a more flexible performance 
standard similar to the documentation requirement in 40 CFR 261.2(f) 
for claims that materials are not solid wastes. One of the simplest 
ways to demonstrate fulfillment of the landfill disposal condition may 
be to provide, upon request by a compliance or enforcement official, a 
copy of a signed contract with either a municipal landfill subject to 
the relevant Part 258 requirements or a hazardous waste landfill 
subject to Subtitle C requirements. The contract would need to show 
that the landfill operator would use only cells subject to the 
applicable Part 258 or Subtitle C design requirements. In cases where 
such a contract does not exist, the following alternative types of 
documentation may be adequate: signed nonhazardous waste manifests, 
shipping papers, or invoices showing that wastes were placed in 
municipal landfills cells subject to the applicable Part 258 or 
Subtitle C design requirements.
    We would regard a showing that all of your recent or ongoing 
shipments of potential K181 wastes have been sent to appropriate 
landfill cells as sufficient evidence of intent to continue to use 
appropriate landfill cells for any wastes that you are storing onsite 
prior to shipment.
    As explained in more detail in section E below, if your potential 
K181 waste is not disposed of in a qualifying landfill cell, or you 
cannot demonstrate that it was, your waste is subject to the K181 
listing from the time that it was generated, and EPA or an authorized 
state may take enforcement action against any person who failed to meet 
applicable Subtitle C requirements while they managed it.

C. How Would I Manage My Wastes During the Period Between Generation 
and Hazardous Waste Determination?

    If you generate wastes that are included within the categorical 
K181 text, you may not presume that your wastes are not subject to the 
listing until you make a determination which shows that your wastes are 
nonhazardous. From the time you generate the wastes to the time you 
make a determination on your wastes, you are responsible for storing 
your wastes properly. If your wastes are determined to be hazardous and 
you did not comply with applicable Subtitle C requirements prior to the 
determination, then you could be subject to an enforcement action.

D. Implementation Examples

    To assist you and the regulating authorities alike in understanding 
the proposed implementation procedures for K181, we present below some 
scenarios describing how different types of dyes and/or pigments 
production facilities would determine whether or not their 
nonwastewaters would be subject to the proposed K181 listing. These 
examples cover those circumstances where facilities assess whether they 
can use knowledge or must use sampling and analysis to determine that 
their wastes are not subject to regulation as K181. Note that these 
examples are not meant to describe all situations.

    Example 1: Using knowledge to show waste contains no K181 
constituents (Sec.  261.32(d)(1)).

    Facility A manufactures a limited number of azo dyes, as well as a 
variety of dye product classes not addressed by the K181 listing scope. 
The facility reviews the raw materials used in the production of its 
azo dyes and determines that none of the K181 constituents are used in 
their azo dye production. In addition, the facility assesses their azo 
product line and determines that none of the K181 constituents would be 
present in their nonwastewaters as a result of reaction byproducts, or 
degradation of their products or raw materials, or as a result of being 
present in their raw materials as impurities. The facility documents 
its findings as per proposed Sec.  261.32(d)(1), and manages their 
wastes as nonhazardous.

    Example 2: Quantities Less Than 1,000 MT/yr: Using knowledge to 
show wastes do not exceed Sec.  261.32(c)(1) listing levels (Sec.  
261.32(d)(2)).

    Facility B manufactures disazo and triarylmethane pigments. The 
facility routinely uses several K181

[[Page 66206]]

constituents, aniline and p-cresidine, as pigment raw materials. Its 
production processes generate mother liquor, process filtrates, 
equipment washouts, spent filter aids and various solid residues. All 
wastewaters are discharged to a local POTW for treatment. 
Nonwastewaters, approximately 20 metric tons per month (totaling 240 
metric tons per year), are accumulated in dumpsters prior to disposal.
    The facility believes that its nonwastewaters will not exceed the 
Sec.  261.32(c)(1) listing levels. As less than 1,000 metric tons of 
total nonwastewaters are generated each calendar year, the facility can 
use knowledge of its processes and wastes to estimate its waste 
constituent levels under proposed Sec.  261.32(d)(2). Based on its 
assessment of the raw materials used in the production lines, the 
facility calculates that its pigment production processes use no more 
than 1,800 kg/year of aniline and 150 kg/year of p-cresidine per 
calendar year; and no other K181 chemicals are used as input materials. 
In addition, the facility does not use aniline or p-cresidine for any 
other purposes onsite. Based on its assessment of its process chemistry 
and review of raw material purity information, the facility concludes 
that none of the other K181 chemicals are expected to be present in its 
nonwastewaters.
    The facility thus determines that its pigment production 
nonwastewaters do not meet the definition of K181 because the wastes 
would not contain more than the listing levels of 9,300 kg/year and 660 
kg/year of aniline and p-cresidine, respectively, and no other K181 
constituents are expected in the wastes. The facility documents its 
findings as per (d)(2), and manages the waste as nonhazardous.

    Example 3: Quantities Less Than 1,000 MT/yr: Using knowledge to 
show wastes do exceed Sec.  261.32(c)(1), but do not exceed Sec.  
261.32(c)(2) listing levels, and thus can be landfilled as 
nonhazardous in landfill subject to Sec.  258.40 or Subtitle C 
design standards (Sec.  261.32(d)(2)).

    Facility C manufactures a variety of azo and anthraquinone dye 
products using many ingredients that include 1,3-phenylenediamine, 4-
chloroaniline, and toluene-2,4-diamine. The spent process liquors, 
equipment rinses and other wastewaters resulting from the production 
are piped to storage tanks, mixed there, and then treated chemically 
and biologically in several treatment tanks. The treated wastewater is 
discharged to an adjacent river under an NPDES permit. The facility's 
records show that the treatment tanks generate wastewater treatment 
sludge at the average rate of 60 metric tons a month. In addition, 
approximately 15 metric tons/month of spent filter aids and other 
process nonwastewaters result from the production processes. The 
facility commingles its nonwastewaters in storage bins, and ships them 
offsite for final disposal in a landfill.
    The facility determines in the beginning of the calendar year that 
the combined quantity of the wastewater treatment sludge and other 
nonwastewaters in question is projected to be less than 1,000 metric 
tons for the year, and thus should be subject to the low volume K181 
listing determination procedure under Sec.  261.32(d)(2). Also, based 
on its well-documented knowledge of product manufacturing, waste 
generation and treatment, and wastewater analyses for NPDES discharge, 
the facility calculates using mass balance that the commingled 
nonwastewaters could not contain more than 100, 1,000, and 80 kg per 
year of 1,3-phenylenediamine, 4-chloroaniline, and toluene-2,4-diamine, 
respectively, using worst-case assumptions. The facility then compares 
these estimated loadings to the Sec.  261.32(c)(1) listing limits and 
finds that their projected levels of 1,3-phenylenediamine and 4-
chloroaniline are well below the listing limits; while the level of 
toluene-2,4-diamine exceeds the listing limit of 0.99 kg/year specified 
in Sec.  261.32(c)(1). The facility now compares the projected level of 
toluene-2,4-diamine to the level in Sec.  261.32(c)(2) of 140 kg/yr, 
and concludes that the nonwastewaters are not projected to trigger the 
Sec.  261.32(c)(2) listing level. Therefore, the facility determines 
that its nonwastewaters can be managed as nonhazardous when disposed of 
in a municipal landfill cell subject to the design criteria in Sec.  
258.40 or the Subtitle C landfill design criteria.
    The facility documents its findings as per Sec.  261.32(d)(2), and 
manages the waste as nonhazardous in an appropriate landfill. The 
facility retains documentation regarding the landfill used to manage 
the waste as per Sec.  261.32(d)(4).

    Example 4: Quantities Greater Than 1,000 MT/yr: Using waste 
analysis to show wastes do exceed Sec.  261.32(c)(1), but do not 
exceed Sec.  261.32(c)(2) listing levels, and thus can be landfilled 
as nonhazardous in landfill that meets or exceeds Sec.  258.40 
(Sec.  261.32(d)(3)).

    Facility C, described in the previous example, projects in January 
of the subsequent year, that it will still be able to successfully make 
a Sec.  261.32(d)(2) demonstration that its wastes are not K181, and 
continues to dispose of its nonwastewaters at a permitted municipal 
landfill subject to Sec.  258.40. By October of that year, however, the 
facility determines that it has generated 1,000 metric tons of 
nonwastewater due to increased dye production. In addition, the 
facility estimates that another 200 metric tons would be generated by 
the end of December. To continue to demonstrate that its wastes are not 
K181, the facility now is subject to Sec.  261.32(d)(3). Accordingly, 
the facility develops a waste sampling and analysis plan under Sec.  
261.32(d)(3), and then collects and tests representative waste samples 
for the remainder of the year to demonstrate that the nonwastewaters 
are still nonhazardous. The analytical results show the maximum 
concentrations of 29.2, 583, and 41.7 mg/kg for 1,3-phenylenediamine, 
4-chloroaniline, and toluene-2,4-diamine, respectively, and contain no 
other K181 constituents. With these maximum constituent concentrations 
and the revised waste quantity of 1,200 metric tons, the facility 
calculates that the nonwastewaters contain no more than 35 kg,\61\ 700 
kg, and 50 kg of 1,3-phenylenediamine, 4-chloroaniline, and toluene-
2,4-diamine for the entire year, which are below the worst case 
constituent quantities initially estimated under the prior year's Sec.  
261.32(d)(2) demonstration. With this confirmation, the facility 
continues to ship the nonwastewaters generated in November and December 
to the appropriate municipal landfill. The facility documents its 
findings as per Sec.  261.32(d)(3). The facility retains documentation 
regarding the landfill used to manage the waste as per Sec.  
261.32(d)(4).
---------------------------------------------------------------------------

    \61\ Example calculation: 29.2 mg/kg x (1,200 metric tons x 
1,000 kg/metric ton) = 35,000,000 mg = 35 kg
---------------------------------------------------------------------------

    For the next two years, the facility continues to generate more 
than 1,000 metric tons of nonwastewater each year, and thus continues 
to sample and analyze its wastes to demonstrate that they do not meet 
the K181 listing description. At the conclusion of the third year, the 
facility can revert to a knowledge-based Sec.  261.32(d)(2) 
demonstration, so long as it doesn't modify its process in a way that 
might result in higher loadings in excess of the listing limits of any 
of the K181 constituents in its nonwastewaters.

    Example 5: Quantities Greater Than 1,000 MT/yr: Using waste 
analysis to show wastes exceed Sec.  261.32(c)(2) listing levels, 
requiring full Subtitle C compliance, pollution prevention 
subsequently reduces loadings below Sec.  261.32(c)(2) levels.

    Facility D produces a variety of dyes and pigments, some of which 
do not fall

[[Page 66207]]

under the K181 listing description, using a number of the chemicals 
listed under Sec.  261.32(c)(1). The site is equipped with a 
centralized wastewater treatment (WWT) system that treats all of the 
wastewaters resulting from the plant's overall operations, discharging 
the treated wastewater to a surface body under an NPDES permit and 
generating 800 metric tons of sludge filter cake each calendar year. 
Moreover, the facility generates numerous batches of nonwastewaters, 
totaling 400 metric tons/year, from the multiple manufacturing process 
lines, such as filtration sludges, used filter aids/cloths, dust and 
fines, and unusable off-specification products. The facility manages 
these process nonwastewaters along with the WWT sludge.
    Due to the combined nonwastewater quantity (800 metric tons of WWT 
sludge plus 400 metric tons of process solids) in excess of 1,000 
metric tons/year, the facility must follow the Sec.  261.32(d)(3) 
determination process, including sampling and analysis for the 
constituents expected to be present in the wastes, to demonstrate that 
the nonwastewaters do not meet the K181 listing criteria.
    The facility determines through waste analysis that its 
nonwastewaters contain more than 500 kg/yr of toluene-2,4-diamine, 
which exceeds the Sec.  261.32(c)(2) listing levels. The facility 
believes that much of the 500 kg/yr loading is attributable to 
production processes not covered by the K181 scope. Due to the 
commingled nature of the WWT sludge, however, the entire quantity of 
the sludge (as well as the other nonwastewaters linked to K181 
processes) is subject to the K181 listing. This waste must therefore be 
managed as a hazardous waste, and must meet the corresponding BDAT 
standards for K181 before being disposed.
    The facility conducts an audit of its production processes, and 
determines that it can reduce the levels of toluene-2,4-diamine in its 
nonwastewaters through a variety of pollution prevention techniques. 
After implementing the most cost-effective of these techniques, the 
facility successfully reduces its toluene-2,4-diamine loadings to below 
the Sec.  261.32(c)(2) listing levels, and subsequently manages its 
waste in a municipal landfill subject to the design criteria in Sec.  
258.40. The facility documents its findings as per Sec.  261.32(d)(3), 
and manages the waste as nonhazardous. The facility retains 
documentation regarding the landfill used to manage the waste as per 
Sec.  261.32(d)(4).

    Example 6: Quantities Greater Than 1,000 MT/yr: Using waste 
analysis to show wastes do exceed Sec.  261.32(c)(1), but do not 
exceed Sec.  261.32(c)(2) listing levels (Sec.  261.32(d)(3)), scope 
determination for F003 waste, incremental management of wastes 
generated prior to exceeding Sec.  261.32(c)(1) levels.

    Facility E generates 500 MT/yr of process nonwastewaters from a dye 
production process that uses solvents. The waste is already classified 
as F003 and therefore is not subject to the K181 listing, even though 
it contains toluene-2,4-diamine. The facility also generates wastewater 
treatment sludge at a rate of 10,000 MT/yr. The facility, using 
existing analytical data, calculates that the wastewater treatment 
sludge contains 10 kg/yr of toluene-2,4-diamine.
    The wastewater treatment sludge is classified as K181 because it 
exceeds the Sec.  261.32(c)(1) listing level of 0.99 kg/yr of toluene-
2,4-diamine. The loading, however, does not exceed the Sec.  
261.32(c)(2) listing level of 140 kg/yr, so the wastes would be 
eligible for exclusion from K181 if the facility manages the wastes in 
landfills subject to the Sec.  258.40 or Subtitle C landfill design 
standards.
    The facility also generates discrete batches of waste every four to 
six weeks. By analyzing each batch and determining the toluene-2,4-
diamine mass in each batch, the facility is able to ascertain at which 
point in time the cumulative mass loading in their waste approaches and 
exceeds the Sec.  261.32(c)(1) listing level of 0.99 kg/yr. Until that 
time, the wastes are not classified as K181.

E. What Are the Consequences of Failing To Meet Recordkeeping 
Requirements or Listing Conditions?

    In paragraphs (d)(1), (d)(2), (d)(3) and (d)(4) of Sec.  261.32 of 
the proposed rule, we are proposing to require generators of dyes and/
or pigments nonwastewaters from the listed product classes to keep 
records under the authority of sections 2002 and 3007 of RCRA. We are 
proposing that these provisions will be RCRA requirements and not 
conditions which must be fulfilled to prevent the waste from being 
classified as listed waste K181. Failure to comply with the proposed 
recordkeeping requirements could result in an enforcement action by EPA 
under section 3008 of RCRA or by an authorized State under similar 
State authorities. This section of the statute authorizes the 
imposition of civil penalties in an amount up to $27,500 for each day 
of noncompliance. Authorized states could also bring action under 
comparable state enforcement authorities.
    We are proposing to make both sets of annual mass loading limits 
and the lined landfill requirements applying to wastes meeting the 
Sec.  261.32(c)(2) limits conditions of the listing. Dyes and/or 
pigments nonwastewaters would become K181 wastes if anyone failed to 
fulfill these conditions. EPA or authorized states could bring 
enforcement actions for violations of hazardous waste requirements 
against anyone who has not managed the waste in compliance with 
applicable Subtitle C requirements.
    Finally, we note that citizens may file suits under section 7002 of 
RCRA to enforce the recordkeeping requirements or other Subtitle C 
hazardous waste requirements if a condition is violated. Moreover, 
citizens can take action under section 7002 of RCRA, and EPA can take 
action under section 7003, if the management of dyes and/or pigments 
nonwastewaters may pose an imminent and substantial endangerment to 
human health or the environment.
    A generator claiming that it is not subject to the listing would 
have to maintain sufficient documentation to demonstrate that it has 
not exceeded the relevant annual mass loading limits, and that it has 
sent its waste to a landfill subject to Sec.  258.40 or Subtitle C 
design standards (if it claims it is subject to the conditional 
exemption for waste going to a lined landfill). EPA believes that basic 
documentation is integrally related to the substantive conditions of 
this proposal, since it would be difficult for a regulating agency (or 
even the generator) to know whether a given shipment of waste is 
hazardous absent records establishing the mass of constituents 
generated year-to-date. EPA requests comment on whether the proposed 
approach is sufficient to ensure enforceability of the proposed 
substantive conditions, or whether some or all of the proposed record-
keeping requirements should be converted to conditions. EPA may make 
all or some of these requirements conditions in the final rule, or 
establish a general condition that the generator maintain sufficient 
records to demonstrate that it is remains outside the scope of the 
listing.

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

A. What Are EPA's Land Disposal Restrictions (LDRs)?

    Congress has specified that land disposal of hazardous waste is 
prohibited, unless the waste meets

[[Page 66208]]

treatment standards established by EPA before the waste is disposed, or 
is disposed in units from which there will be no migration of hazardous 
constituents for as long as the waste remains hazardous. RCRA sections 
3004 (d), (e), (f), and (g). (These interrelated provisions are often 
referred to as Land Disposal Restrictions, or LDRs.) Treatment 
standards must substantially diminish the toxicity or mobility of 
hazardous waste or constituents thereof, so that short- and long-term 
threats to human health and the environment are minimized. RCRA section 
3004(m). EPA is required to promulgate land disposal prohibitions and 
treatment standards for waste identified or listed as hazardous after 
November 1984 within six months of a final rule identifying or listing 
such waste. We are proposing prohibitions and treatment standards for 
all of the wastes which we are today proposing to list as hazardous. We 
are further proposing that the date of the prohibition and treatment 
standard be on the same date that the listing becomes effective.

B. How Does EPA Develop LDR Treatment Standards?

    In an effort to make treatment standards as uniform as possible, 
while adhering to the fundamental requirement that the standards must 
minimize threats to human health and the environment, EPA developed the 
so-called Universal Treatment Standards (UTS) (codified at 40 CFR 
268.48). Under the UTS, whenever technically and legally possible, the 
Agency adopts the same technology-based numerical limit for a hazardous 
constituent regardless of the type of hazardous waste in which the 
constituent is present. See 63 FR 28560 (May 26, 1998); 59 FR 47982 
(September 19, 1994). The UTS, in turn, reflect the performance of Best 
Demonstrated Available Treatment (BDAT) Technologies of the 
constituents in question.
    EPA is also authorized in section 3004 (m) to establish methods of 
treatment as a treatment standard. Doing so involves specifying an 
actual method by which the waste must be treated (unless a variance or 
determination of equivalency is obtained). Given this constraint, EPA 
prefers to establish numerical treatment standards, which leaves the 
option of using any method of treatment (other than impermissible 
dilution) to achieve the treatment standard.

C. What Treatment Standards Are We Proposing?

    We find that there is significant structural similarity among many 
of the constituents of concern, including those for which we have not 
previously set technology-specific standards. The constituents of 
concern either have been demonstrated to be treated effectively by the 
BDAT technology to below the analytic detection limit, or are similar 
enough to these constituents that it can be reasonably determined that 
they would not be more difficult to treat via combustion or other 
destructive procedures. Hence, we expect that all constituents of 
concern for these wastes can be treated with equal effectiveness (i.e., 
destroyed or removed so as to be no longer detectable) by similar 
methods of treatment. The obvious most effective treatment for 
nonwastewater forms of these wastes is combustion. For wastewaters 
derived from K181, a treatment train of wet air oxidation (WETOX) or 
chemical oxidation (CHOXD) followed by carbon adsorption (CARBN), or 
application of combustion (CMBST) is the BDAT for the constituents of 
concern for which treatment standards have not previously been 
developed.
    We also assessed the potential of developing numerical standards 
for those constituents with current technology-based treatment 
standards and those constituents of concern in K181 that lack current 
treatment requirements. Numerical treatment standards have been 
promulgated for only nine of the organic constituents of concern. 
Commenters to the July 23, 1999 listing proposal (64 FR 40192) 
suggested that EPA establish numerical standards, because they allow 
any treatment, other than impermissible dilution, to be used to comply 
with the land disposal restrictions. We find that there is adequate 
documentation in existing SW-846 methods 8270, 8315, and 8325 to 
calculate numerical standards for all but benzaldehyde; 1,3-
phenylenediamine; 1,2-phenylenediamine; and 2,4-dimethylaniline. For 
these constituents, with the exception of 1,2-phenylenediamine, we 
propose to transfer the numerical standards of similar constituents as 
the universal treatment standards.
    For 1,2-phenylenediamine, we have found during past method 
performance evaluations that it can be difficult to achieve reliable 
recovery from aqueous matrixes and precise measurements. Therefore, for 
this constituent we propose that wastewaters be treated by CMBST; or 
CHOXD followed by BIODG or CARBN; or BIODG followed by CARBN, and all 
nonwastewaters would be treated by CMBST. If data adequate for the 
development of a numerical standard is presented in comments, the 
Agency may promulgate a numerical standard as an alternative, or as the 
treatment requirement.
    If these numerical standards are shown in comments not to be 
achievable or otherwise appropriate, we could adopt methods of 
treatment as the exclusive treatment standard. Under this technology 
only approach, all nonwastewaters identified as K181 would be treated 
by CMBST, and all derived from wastewaters would be treated by either 
WETOX or CHOXD, followed by CARBN or CMBST.
    The proposed treatment standards are presented in the following 
table.

                       Table VI-1.--Proposed Treatment Standards for Constituents in K181
----------------------------------------------------------------------------------------------------------------
       Constituents of concern          CAS No.         Wastewater  (mg/L)            Nonwastewater (mg/kg)
----------------------------------------------------------------------------------------------------------------
Aniline.............................      65-53-3  0.81 *......................  14 *
o-Anisidine (2-methoxyaniline)......      90-04-0  0.010.......................  0.66
Azobenzene **.......................     103-33-3  0.010.......................  0.66
Benzaldehyde **.....................     100-52-7  0.065.......................  4.3
4-Chloroaniline.....................     106-47-8  0.46 *......................  16 *
p-Cresidine.........................     120-71-8  0.010.......................  0.66
2,4-Dimethylaniline (2,4-xylidine)..      95-68-1  0.010.......................  0.66
1,2-Phenylenediamine................      95-54-5  CMBST; or CHOXD fb (BIODG or  CMBST
                                                    CARBN); or BIODG fb CARBN.
1,3-Phenylenediamine................     108-45-2  0.010.......................  0.66
p-Toluidine **......................     106-49-0  0.010.......................  0.66

[[Page 66209]]

 
Toluene-2,4-diamine.................      95-80-7  0.020.......................  1.30
----------------------------------------------------------------------------------------------------------------
* Existing Universal Treatment Standard. No change is proposed.
** Treatment standards would be proposed for this constituent if zero biodegradation is assumed. See section
  IV.A.4.

D. What Changes to Existing Treatment Requirements Are Proposed?

    We also propose to add the constituents in K181 with numerical 
treatment standards to the Universal Treatment Standards (UTS) listed 
at 40 CFR 268.48. This action would potentially add five chemicals with 
the standards in Table VI-1 to the UTS if biodegradation rates are 
assigned for all constituents based upon structural similarity, namely: 
o-anisidine, p-cresidine, 2,4-dimethylaniline, 1,3-phenylenediamine, 
and toluene-2,4-diamine. If biodegradation rates are assumed to be zero 
for constituents that do not have a reported value, then there are 
three additional constituents that may require promulgation of 
universal treatment standards. The three are azobenzene, benzaldehyde, 
and p-toluidine. As a result, characteristic wastes that also contain 
these constituents will require additional treatment before disposal, 
if constituent concentrations exceed the proposed levels.
    We propose to amend the constituents of concern in F039 as 
necessary to include the constituents identified in K181 not already 
specified in F039 (the same constituents named above for the UTS). F039 
applies to landfill leachates generated from multiple listed wastes in 
lieu of the original waste codes. F039 wastes are subject to numerical 
treatment standards equivalent to the universal treatment standards 
listed at 40 CFR 268.48. Without this change in existing regulations, 
F039 landfill leachates may not receive proper treatment for the 
constituents of K181.
    The proposed treatment standards reflect the performance of best 
treatment technologies, and are not based on the listing levels of 
concern derived from the risk assessment for dyes and/or pigments 
wastes. In that risk assessment, our analysis focused on the plausible 
management practices for only the dyes and pigments industries. As a 
result, our models did not attempt to assess all possible pathways, 
because the plausible management practice (disposal in a municipal 
Subtitle D landfill) provides a certain level of control over some 
potential release pathways. In addition, our assessment of potential 
releases modeled engineered barriers, in the form of various types of 
liner systems.
    It is not appropriate to use the mass loading levels derived from 
these risk assessments as levels at which threats to human health and 
to the environment are minimized. The risk analysis does not address 
all of the long-term uncertainties associated with land disposal of 
these wastes. (See section 3004 (g)(5) and 55 FR 6640, 6642 (February 
26, 1990).) Nor is it permissible to consider artificial liner systems, 
or other engineered barriers, in assessing whether threats posed by 
land disposal of a hazardous waste have been minimized. API v. EPA, 906 
F. 2d 726, 735-36 (threats to human health and the environment must be 
minimized before land disposal occurs); cf. S. Rep. 284, 98th Cong. 1st 
Sess. at 15 (``Artificial barriers cannot provide the assurances 
necessary to meet the standard,'' referring to the parallel no-
migration standard for determining if a method of land disposal is 
protective without the need for pretreating the waste before land 
disposal occurs).
    Because there remain significant uncertainties as to what levels of 
hazardous constituents in these wastes would minimize threats to human 
health and to the environment posed by these wastes' land disposal, we 
are choosing to develop treatment standards for these wastes based on 
performance of the Best Demonstrated Available Technology for these 
wastes. HWTC III, 886 F. 2d at 361-363 (accepting this approach). For 
the same reason, we are finding that these technology-based treatment 
standards are not more stringent than the risk-based levels at which we 
could find that threats to human health and to the environment are 
minimized.

E. Other LDR-Related Provisions

    EPA has adopted special LDR treatment standards for debris 
contaminated by hazardous waste. See Sec.  268.45. EPA is proposing 
that these provisions would also apply to hazardous debris cross-
contaminated with K181. Debris contaminated with K181 would be required 
to be treated prior to land disposal, using specific technologies from 
one or more of the following families of debris treatment technologies: 
extraction, destruction, or immobilization. If such debris is treated 
by immobilization, it remains a hazardous waste and must be managed in 
a hazardous waste facility. Residuals generated from the treatment of 
debris contaminated with K181 would remain subject to the treatment 
standards proposed today. (See 57 FR 37277, August 18, 1992, for 
additional information on the applicability, scope, and content of the 
hazardous debris provisions.)
    Lastly, because land disposal also includes placement in injection 
wells (40 CFR 268.2(c)) application of the land disposal restrictions 
to K181 requires the modification of injection well requirements found 
in 40 CFR part 148. We propose that K181 be prohibited from underground 
injection. (See 40 CFR part 148.) Therefore, K181 wastes may not be 
underground injected unless they have been treated in compliance with 
the LDR treatment standards or are injected into a Class 1 well from 
which it has been determined that there will be no migration of 
hazardous constituents for as long as the wastes remain hazardous.

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

1. What Is a Capacity Determination?
    When EPA develops new hazardous waste LDR regulations, we must 
determine whether adequate alternative treatment capacity exists 
nationally to manage the waste and meet the new treatment standards. 
The LDRs are effective when promulgated unless EPA grants a national 
capacity variance from the otherwise-applicable date and establishes a 
different date (not to exceed two years beyond the statutory deadline) 
based on ``. . . the earliest date on which adequate alternative 
treatment, recovery, or disposal capacity which protects human health 
and the environment will be available'' (RCRA section 3004(h)(2)).
    Our capacity analysis methodology focuses on the amount of waste 
currently disposed on the land, which will require alternative or 
additional treatment as a result of the LDRs. The quantities of wastes 
that are not subject to LDRs, such as discharges regulated

[[Page 66210]]

under NPDES, discharges to a POTW, or treatment in a RCRA exempt tank, 
are not included in the quantities requiring additional treatment as a 
result of the LDRs. Also, land disposed wastes that do not require 
alternative or additional treatment (i.e., those that are currently 
treated to meet standards) are excluded from the required capacity 
estimates. Land disposed wastes requiring alternative or additional 
treatment or recovery capacity that is available onsite or within the 
same company also are excluded from the required commercial capacity 
estimates. The resulting estimates of required commercial capacity are 
then compared to estimates of available commercial capacity. If 
adequate commercial capacity exists, the waste is restricted from 
further land disposal. If adequate capacity does not exist, EPA has the 
authority to grant a national capacity variance.
    In making the estimates described above, the volume of waste 
requiring treatment depends on the current waste management practices 
employed by the waste generators before this proposed regulation is 
finalized and becomes effective. We collected data on waste management 
practices for the affected facilities from publicly available sources 
during the development of this proposed rule. However, we realize that 
as the regulatory process proceeds, generators of these wastes may 
decide to minimize or recycle their wastes or otherwise alter their 
management practices. Thus, EPA will monitor changes and update data on 
current management practices as these changes will affect the volume of 
wastes ultimately requiring commercial treatment or recovery capacity.
    The commercial hazardous waste treatment industry can change 
rapidly. For example, national commercial treatment capacity changes as 
new facilities come on-line or old facilities go off-line and as new 
units and new technologies are added at existing facilities. The 
available capacity at commercial facilities also changes as facilities 
change their commercial status (e.g., changing from a fully commercial 
to a limited commercial or ``captive''--company owned--facility). Thus, 
EPA also continues to update and monitor changes in available 
commercial treatment capacity.
    We request available data on the industry-wide total annual 
generation volumes of wastes affected by this proposed rule, including 
K181 in wastewater and nonwastewater forms, soil or debris contaminated 
with these wastes, the current and planned management practices for the 
wastes, and waste mixtures. We also request data on the current 
treatment or recovery capacity capable of treating these wastes, 
facility and unit permit status related to treatment of the proposed 
wastes and any plans that facilities may have to expand or reduce 
existing capacity, or construct new capacity. Of particular interest to 
us is available information related to factors that may limit the 
availability of treatment technologies.
2. What Are the Capacity Analysis Results?
    This preamble only provides a brief summary of the capacity 
analysis performed to support this proposed regulation. For additional 
and more detailed information, please refer to the ``Background 
Document for Capacity Analysis for Land Disposal Restrictions: Newly 
Identified Dye and Pigment Process Wastes (Proposed Rule), November 
2003'' (``Capacity Background Document''), available in the RCRA docket 
established for today's proposed rule.
    For this capacity analysis, we examined data on waste 
characteristics and management practices gathered for the purpose of 
the dyes and pigments hazardous waste listing determination based on 
the publicly available information. The data sources are described in 
detail in section II.H of this preamble.
    If K181-derived wastewaters are generated, there is adequate 
wastewater treatment capacity existing for these wastes. As discussed 
in section IV.C above, EPA is proposing to treat the wastewater form of 
K181 by wet air oxidation or chemical oxidation followed by carbon 
adsorption or applying combustion for the constituents of concern. 
There is adequate wastewater treatment capacity available should the 
need for treatment of the wastewater form of the waste arise. The 
wastewater treatment capacity is detailed in the Capacity Background 
Document. Therefore, we are proposing not to grant a national capacity 
variance from LDR treatment standards for the wastewater form of K181. 
We are proposing that LDRs become effective when the listing 
determination becomes effective. In addition, we are not listing 
wastewaters generated at these facilities, so there is no need for 
additional treatment of wastewater from the production of dyes and/or 
pigments (other than K181-derived wastewaters).
    As described in section IV.C above, EPA is proposing to establish 
numerical treatment standards or a method of treatment as the treatment 
standards for the constituents of concern of the newly proposed waste. 
We expect that the constituents of concern in the nonwastewater form of 
the newly proposed waste are amenable to the treatment by combustion or 
other destructive technologies. EPA estimates, at most, 69,000 metric 
tons of nonwastewater forms of K181 that may require alternative 
commercial treatment and be managed offsite at a commercial hazardous 
waste treatment facility. Furthermore, EPA anticipates that much less 
than 69,000 metric tons of the wastes may require combustion capacity 
because not all of these wastes are expected to exceed the mass loading 
limits, and of those wastes that do exceed the loading limits, they may 
be managed in a Subtitle C combustion unit or may meet the proposed 
conditional exemption for nonwastewaters that are managed in landfills 
that meet or exceeds the design criteria in Sec.  258.40 or in a 
Subtitle C landfill cell subject to either Sec.  264.301 or Sec.  
265.301. We estimate that the commercially available sludge and solid 
combustion capacity is approximately 0.6 million tons per year and 
therefore sufficient to treat the newly proposed waste which might 
newly require treatment. We also expect that adequate landfill capacity 
exists for managing the residuals from treating this waste. Therefore, 
we are proposing to not grant a national capacity variance from the LDR 
treatment standards for the nonwastewater form of K181. We are 
proposing that the LDRs become effective when the listing determination 
becomes effective.
    As discussed in section VI.D, we are also proposing to add the 
constituents of concern in K181 with numerical standards to the 
constituent lists for F039 and universal treatment standards (UTS). EPA 
does not anticipate that waste volumes subject to the treatment 
standards for F039 or characteristic wastes would increase because of 
the addition of these organic constituents to F039 and the UTS lists. 
Based on available data, waste generators already appear to be required 
to comply with the treatment requirements for other organic 
constituents in F039 and characteristic wastes. Therefore, additional 
treatment due to the addition of the constituents to the F039 and UTS 
lists may not be required. We also do not anticipate laboratory 
analytical problems as a result of this addition. However, we solicit 
comments regarding additional treatment needed, as well as the ability 
and capacity of laboratories to analyze wastes for these contaminants.
    For soil and debris contaminated with these wastes, we believe that 
the vast

[[Page 66211]]

majority of contaminated soil and debris, if any, will be managed 
onsite and therefore would not require substantial commercial treatment 
capacity. Therefore, we are proposing to not grant a national capacity 
variance for hazardous soil and debris contaminated with the newly 
listed waste covered under this proposal. Based on the public 
information used, there are no data showing mixed radioactive wastes or 
underground injected wastes associated with the proposed listing. As a 
result, we are also proposing to not grant a national capacity variance 
for mixed radioactive waste (i.e., radioactive wastes mixed with K181) 
or waste being injected underground.
    The ultimate volume of waste estimated to require alternative or 
additional commercial treatment may change if the final listing 
determination changes; should this occur, we will revise the capacity 
analysis accordingly. The actual quantity of waste requiring commercial 
treatment may be smaller due to facility closures and changes in 
product formulations which may not be subject to LDR treatment 
standards. We recognize the batch process nature of this industry and 
the speed at which facilities may change product formulations. We 
solicit any updated or additional information pertinent to the national 
capacity variance determinations for all forms of the newly proposed 
waste. We also request comment on current and future management 
practices and the volumes managed for these wastes.

VII. State Authority and Compliance

A. How Are States Authorized Under RCRA?

    Under section 3006 of RCRA, EPA may authorize qualified states to 
administer their own hazardous waste programs in lieu of the federal 
program within the state. Following authorization, EPA retains 
enforcement authority under sections 3008, 3013, and 7003 of RCRA, 
although authorized states have primary enforcement responsibility. The 
standards and requirements for state authorization are found at 40 CFR 
part 271.
    Prior to enactment of the Hazardous and Solid Waste Amendments of 
1984 (HSWA), a State with final RCRA authorization administered its 
hazardous waste program entirely in lieu of EPA administering the 
Federal program in that state. The Federal requirements no longer 
applied in the authorized state, and EPA could not issue permits for 
any facilities in that state, since only the state was authorized to 
issue RCRA permits. When new, more stringent federal requirements were 
promulgated, the state was obligated to enact equivalent authorities 
within specified time frames. However, the new federal requirements did 
not take effect in an authorized state until the state adopted the 
federal requirements as state law.
    In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), which 
was added by HSWA, new requirements and prohibitions imposed under HSWA 
authority take effect in authorized states at the same time that they 
take effect in unauthorized states. EPA is directed by the statute to 
implement these requirements and prohibitions in authorized states, 
including the issuance of permits, until the state is granted 
authorization to do so. While states must still adopt HSWA related 
provisions as state law to retain final authorization, EPA implements 
the HSWA provisions in authorized states until the states do so.
    Authorized states are required to modify their programs only when 
EPA enacts Federal requirements that are more stringent or broader in 
scope than existing Federal requirements. RCRA section 3009 allows the 
states to impose standards more stringent than those in the federal 
program (see also 40 CFR 271.1). Therefore, authorized states may, but 
are not required to, adopt federal regulations, both HSWA and non-HSWA, 
that are considered less stringent than previous federal regulations.

B. How Would This Rule Affect State Authorization?

    We are proposing today's rule pursuant to HSWA authority. The 
listing of the new K-waste is promulgated pursuant to RCRA section 
3001(e)(2), a HSWA provision. Therefore, we are adding this rule to 
Table 1 in 40 CFR 271.1(j), which identifies the Federal program 
requirements that are promulgated pursuant to HSWA and take effect in 
all States, regardless of their authorization status. The land disposal 
restrictions for these wastes are promulgated pursuant to RCRA section 
3004(g) and (m), also HSWA provisions. Table 2 in 40 CFR 271.1(j) is 
modified to indicate that these requirements are self-implementing.
    States may apply for final authorization for the HSWA provisions in 
40 CFR 271.1(j), as discussed below. Until the States receive 
authorization for these more stringent HSWA provisions, EPA would 
implement them. The procedures and schedule for final authorization of 
State program modifications are described in 40 CFR 271.21.
    Section 271.21(e)(2) of EPA's State authorization regulations (40 
CFR part 271) requires that States with final authorization modify 
their programs to reflect Federal program changes and submit the 
modifications to EPA for approval. The deadline by which the States 
would need to modify their programs to adopt this proposed regulation 
is determined by the date of promulgation of a final rule in accordance 
with Sec.  271.21(e)(2). Once EPA approves the modification, the State 
requirements would become RCRA Subtitle C requirements.
    States with authorized RCRA programs already may have regulations 
similar to those in this proposed rule. These State regulations have 
not been assessed against the Federal regulations proposed today to 
determine whether they meet the tests for authorization. Thus, even 
after promulgation of final rules, a State would not be authorized to 
implement these regulations as RCRA requirements until State program 
modifications are submitted to EPA and approved, pursuant to 40 CFR 
271.21. Of course, States with existing regulations that are more 
stringent than or broader in scope than current Federal regulations may 
continue to administer and enforce their regulations as a matter of 
State law. In implementing the HSWA requirements, EPA will work with 
the States under agreements to avoid duplication of effort.

C. Who Would Need To Notify EPA That They Have a Hazardous Waste?

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

[[Page 66212]]

dispose of these hazardous wastes within 90 days after the effective 
date.
    Note that under this proposal, nonwastewaters would not become 
newly listed K181 waste if the constituent mass loadings do not meet 
the levels in Sec.  261.32(c)(1); the wastes would also not be listed 
if the constituent mass loadings are below the less stringent levels in 
Sec.  261.32(c)(2) and if the nonwastewaters are disposed in a landfill 
that meets or exceeds the design criteria in Sec.  258.40 or in a 
Subtitle C landfill cell subject to either Sec.  264.301 or Sec.  
265.301. Persons who generate only wastes that meet these conditions 
need not notify EPA or obtain an identification number.

D. What Would Generators and Transporters Have To Do?

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

E. Which Facilities Would Be Subject to Permitting?

1. Facilities Newly Subject to RCRA Permit Requirements
    Facilities that treat, store, or dispose of wastes that are subject 
to RCRA regulation for the first time by this proposed rule (that is, 
facilities that have not previously received a permit pursuant to 
section 3005 of RCRA and are not currently operating pursuant to 
interim status), could be eligible for interim status (see section 
3005(e)(1)(A)(ii) of RCRA). To obtain interim status based on 
treatment, storage, or disposal of such newly identified wastes, 
eligible facilities would be required to comply with 40 CFR 270.70(a) 
and 270.10(e) by providing notice under section 3010 and submitting a 
Part A permit application no later than 6 months after date of 
publication in the Federal Register of the final rule. Such facilities 
would be subject to regulation under 40 CFR part 265 pending final 
administrative disposition of the permit application (e.g., until a 
permit is issued).
    In addition, under section 3005(e)(3) and 40 CFR 270.73(d), not 
later than 6 months after date of publication of the final rule, land 
disposal facilities newly qualifying for interim status under section 
3005(e)(1)(A)(ii) would also need to submit a Part B permit application 
and certify that the facility is in compliance with all applicable 
groundwater monitoring and financial responsibility requirements. If 
the facility fails to submit these certifications and a permit 
application, then interim status would terminate on that date.
2. Existing Interim Status Facilities
    Pursuant to 40 CFR 270.72(a)(1), all existing hazardous waste 
management facilities (as defined in 40 CFR 270.2) that treat, store, 
or dispose of the newly listed hazardous wastes and are currently 
operating pursuant to interim status under section 3005(e) of RCRA, 
would need to file an amended Part A permit application with EPA no 
later than six months after the date of publication of a final rule. By 
doing this, the facility could continue managing the newly listed 
wastes pending final disposition of the permit application. If the 
facility fails to file an amended Part A application by that date, the 
facility would not receive interim status for management of the newly 
listed hazardous wastes and may not manage those wastes until the 
facility receives either a permit or a change in interim status 
allowing such activity (40 CFR 270.1(b); 270.10(g)).
3. Permitted Facilities
    Facilities that already have RCRA permits would need to request 
permit modifications if they want to continue managing the newly listed 
wastes (see 40 CFR 270.42(g)). This provision states that a permittee 
may continue managing the newly listed wastes by following certain 
requirements, including submitting a Class 1 permit modification 
request by the date on which the waste or unit becomes subject to the 
new regulatory requirements (i.e., the effective date of a final rule), 
complying with the applicable standards of 40 CFR parts 265 and 266 and 
submitting a Class 2 or 3 permit modification request within 180 days 
of the effective date. Generally, a Class 2 modification is appropriate 
if the newly listed wastes will be managed in existing permitted units 
or in newly regulated tanks, container units or containment buildings 
and will not require additional or different management practices than 
those authorized in the permit.
    A Class 2 modification requires the facility owner to provide 
public notice of the modification request, a 60-day public comment 
period, and an informal meeting between the owner and the public within 
the 60-day period. The Class 2 process includes a ``default 
provision,'' which provides that if the Agency does not reach a 
decision within 120 days, the modification is automatically authorized 
for 180 days. If the Agency does not reach a decision by the end of 
that period, the modification is authorized for the life of the permit 
(see 40 CFR 270.42(b)).
    A Class 3 modification is generally appropriate if management of 
the newly listed wastes requires additional or different management 
practices than those authorized in the permit or if newly regulated 
land-based units are involved. The initial public notification and 
public meeting requirements are the same as for Class 2 modifications. 
However, after the end of the 60-day public comment period, the Agency 
will grant or deny the permit modification request according to the 
more extensive procedures of 40 CFR part 124. There is no default 
provision for Class 3 modifications (see 40 CFR 270.42(c)).
    Under 40 CFR 270.42(g)(1)(v), for newly regulated land disposal 
units, permitted facilities must certify that the facility is in 
compliance with all applicable 40 CFR part 265 groundwater monitoring 
and financial responsibility requirements no later than 6 months after 
the date of publication of a final rule. If the facility fails to 
submit these certifications, authority to manage the

[[Page 66213]]

newly listed wastes under 40 CFR 270.42(g) will terminate on that date.
    For states which have not yet picked up the permit modification 
tables of 40 CFR 270.42, ``major'' and ``minor'' permit modifications 
should be applied as appropriate to the permit modification request.
4. Units
    Units in which the newly listed hazardous wastes are generated or 
managed would be subject to all applicable requirements of 40 CFR part 
264 for permitted facilities or 40 CFR part 265 for interim status 
facilities, unless the unit is excluded from such permitting by other 
provisions, such as the wastewater treatment tank exclusions (40 CFR 
264.1(g)(6) and 265.1(c)(10)) and the product storage tank exclusion 
(40 CFR 261.4(c)). Examples of units to which these exclusions could 
never apply include landfills, waste piles, incinerators, and any other 
miscellaneous units in which these wastes may be generated or managed. 
However, as noted above, under this proposal nonwastewaters would not 
become newly listed K181 waste if the constituent loadings do not meet 
the levels in Sec.  261.32(c)(1); the wastes would also not be listed 
if the constituent mass loadings are below the levels in Sec.  
261.32(c)(2) and if the nonwastewaters are disposed in a landfill that 
meets or exceeds the design criteria in Sec.  258.40 or in a Subtitle C 
landfill cell subject either to Sec.  264.301 or Sec.  265.301.
5. Closure
    All units in which the newly listed hazardous wastes are treated, 
stored, or disposed after the effective date of this regulation that 
are not excluded from the requirements of 40 CFR parts 264 and 265 
would be subject to both the general closure and post-closure 
requirements of subpart G of 40 CFR parts 264 and 265 and the unit-
specific closure requirements set forth in the applicable unit 
technical standards subpart of 40 CFR part 264 or 265 (e.g., Subpart N 
for landfill units). In addition, EPA promulgated a final rule that 
allows, under limited circumstances, regulated landfills or surface 
impoundments to cease managing hazardous waste, but to delay Subtitle C 
closure to allow the unit to continue to manage nonhazardous waste for 
a period of time prior to closure of the unit (see 54 FR 33376, August 
14, 1989). Units for which closure is delayed continue to be subject to 
all applicable 40 CFR parts 264 and 265 requirements. Dates and 
procedures for submittal of necessary demonstrations, permit 
applications, and revised applications are detailed in 40 CFR 
264.113(c) through (e) and 265.113(c) through (e).

VIII. CERCLA Designation and Reportable Quantities

A. What Is the Relationship Between RCRA and CERCLA?

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

B. How Does EPA Determine Reportable Quantities?

    Under CERCLA, all new hazardous substances automatically have a 
statutory one-pound RQ. EPA adjusts the RQ of a newly added hazardous 
substance based on an evaluation of its intrinsic physical, chemical, 
and toxic properties. These intrinsic properties called ``primary 
criteria'' are aquatic toxicity, mammalian toxicity (oral, dermal, and 
inhalation), ignitability, reactivity, chronic toxicity, and potential 
carcinogenicity. EPA evaluates the data for a hazardous substance for 
each primary criterion. To adjust the RQs, EPA ranks each criterion on 
a scale that corresponds to an RQ value of 1, 10, 100, 1,000, or 5,000 
pounds. For each criterion, EPA establishes a tentative RQ. A hazardous 
substance may receive several tentative RQ values based on its 
particular intrinsic properties. The lowest of the tentative RQs 
becomes the ``primary criteria RQ'' for that substance.
    After the primary criteria RQs are assigned, EPA further evaluates 
substances for their susceptibility to certain degradative processes. 
These are secondary adjustment criteria. The natural degradative 
processes are biodegradation, hydrolysis, and photolysis (BHP). If a 
hazardous substance, when released into the environment, degrades 
rapidly to a less hazardous form by one or more of the BHP processes, 
EPA generally raises its RQ (as determined by the primary RQ adjustment 
criteria) by one level. Conversely, if a hazardous substance degrades 
to a more hazardous product after its release, EPA assigns an RQ to the 
original substance equal to the RQ for the more hazardous substance.
    The standard methodology used to adjust the RQs for RCRA hazardous 
waste streams differs from the methodology applied to individual 
hazardous substances. The procedure for assigning RQs to RCRA waste 
streams is based on the results of an analysis of the hazardous 
constituents of the waste streams. The constituents of each RCRA 
hazardous waste stream are identified in 40 CFR part 261, Appendix VII. 
EPA first determines an RQ for each hazardous constituent within the 
waste stream using the methodology described above. The lowest RQ value 
of these constituents becomes the adjusted RQ for the waste stream. 
When there are hazardous constituents of a RCRA waste stream that are 
not CERCLA hazardous substances, the Agency develops an RQ, called a 
``reference RQ,'' for these constituents in order to assign an 
appropriate RQ to the waste stream (see 48 FR 23565, May 25, 1983). In 
other words, the Agency derives the RQ for waste streams based on the 
lowest RQ of all the hazardous constituents, regardless of whether they 
are CERCLA hazardous substances.

C. EPA Will Assign an RQ of One-Pound for the Waste

    In today's proposed rule, EPA will assign a one-pound RQ to the 
K181 waste. The RQ for each constituent contained in the proposed waste 
is presented in the table below.

      Table VIII-1.--RQs for Constituents Identified in K181 Waste
------------------------------------------------------------------------
                                                          Constituent RQ
            Constituents in K181 waste stream              (kg) (40 CFR
                                                              302.4)
------------------------------------------------------------------------
Aniline.................................................     5000 (2270)
o-Anisidine.............................................      100 (45.4)
4-Chloroaniline.........................................      1000 (454)
p-Cresidine.............................................     * 1 (0.454)
2,4-Dimethylaniline.....................................     * 1 (0.454)
Toluene-2,4-diamine.....................................       10 (4.54)
1,2-Phenylenediamine....................................     * 1 (0.454)
1,3-Phenylenediamine....................................     * 1 (0.454)
------------------------------------------------------------------------
* RQ of 1 pound assigned to this constituent because we have not yet
  developed a ``waste constituent RQ'' for this substance.

    We are not adjusting the RQ for K181 at this time because we have 
not yet developed a ``waste constituent RQ'' for

[[Page 66214]]

the following constituents of concern in this waste: p-cresidine; 2,4-
dimethylaniline; 1,2-phenylenediamine; and 1,3-phenylenediamine.

D. How Does a Mass Loading Limit Hazardous Waste Listing Approach 
Relate to My Reporting Obligations Under CERCLA? When Would I Need To 
Report a Release of These Wastes Under CERCLA?

    Today's proposed hazardous waste listings are based on the mass 
loadings of the hazardous constituents in the wastes. An RQ of one-
pound is assigned for the waste based on the lowest RQ of the hazardous 
constituents in the waste. Notification is required under CERCLA when a 
waste meeting the listing description and threshold for that hazardous 
waste is released into the environment in a quantity that equals or 
exceeds the RQ for the waste.
    For CERCLA reporting purposes, the Clean Water Act mixture rule (40 
CFR 302.6) may be adapted to apply to releases of this waste when the 
quantity (or mass limit) of all of the K181 hazardous constituents in 
the waste are known and the waste meets the K181 listing description 
(i.e., any of the K181 mass loading levels are met or exceeded). In 
such a case, notification is required where an amount of waste is 
released that contains an RQ or more of any hazardous substance 
contained in the waste. When the quantity (or mass limit) of one or 
more of the K181 hazardous constituents is not known, notification is 
required when the quantity of K181 waste released equals or exceeds the 
RQ for the waste stream.

E. How Would I Report a Release?

    To report a release of proposed K181 (or any other CERCLA hazardous 
substance) that equals or exceeds its RQ, you must immediately notify 
the National Response Center (NRC) as soon as you have knowledge of 
that release. The toll-free telephone number of the NRC is 1-800-424-
8802; in the Washington, DC, metropolitan area, the number is (202) 
267-2675.
    You may also need to notify State and local authorities. The 
Emergency Planning and Community Right-to-Know Act (EPCRA) requires 
that owners and operators of certain facilities report releases of 
CERCLA hazardous substances and EPCRA extremely hazardous substances 
(see list in 40 CFR Part 355, Appendix A) to State and local 
authorities. After the release of an RQ or more of any of those 
substances, you must report immediately to the community emergency 
coordinator of the local emergency planning committee for any area 
likely to be affected by the release, and to the State emergency 
response commission of any State likely to be affected by the release.

F. What Is the Statutory Authority for This Program?

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

G. How Can I Influence EPA's Thinking on Regulating K181 Under CERCLA?

    In developing this proposal, EPA tried to address the concerns of 
all our stakeholders. Your comments will help us to improve this 
proposal. We invite you to provide your views on this proposal and how 
it may affect you. We also are interested in receiving any comments 
that you have on the information provided in Table VIII-1, including 
the hazardous constituents identified for proposed K181.

IX. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735 (October 4, 1993)) the 
Agency must determine whether a regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that this rule is a ``significant regulatory action'' under 
point number four above. This rule, as proposed may raise novel legal 
or policy issues due to the unique mass loading-based approach used in 
development of the risk assessment. As such, this action was submitted 
to OMB for review. Any substantive changes to this Preamble, the 
regulatory language, or supporting documentation made in response to 
OMB review are documented in the public record.
    Under the terms of Executive Order 12866, we have determined that 
the annual economic effects of this proposed rule are less than $100 
million. Furthermore, this proposed 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 
annualized benefits associated with today's rule have not been 
monetized but are believe to be less than $100 million.
    The information presented in this Section is derived from the 
following document: ``Economic Assessment for the Proposed Loadings-
Based Listing of Non-Wastewaters from the Production of Selected 
Organic Dyes, Pigments, and Food, Drug, and Cosmetic Colorants Economic 
Assessment,'' November 2003. This document is available in the docket 
established for today's action. EPA seeks public comment on all aspects 
of this document, including both the magnitude and timing of the costs 
and benefits.
1. Background
    This proposal presents a mass loadings-based listing approach. 
Historically, the Agency's listing program has captured entire 
categories of wastes posing unacceptable risks to human health and the 
environment. Today's approach proposes listing only those wastes from 
any single facility that contain specific constituents in quantities 
above acceptable risk levels. This is a new and unique hazardous

[[Page 66215]]

waste listings approach for the Office of Solid Waste.
    We have prepared two economic support documents for this proposed 
action. These are: ``Economic Assessment for the Proposed Loadings-
Based Listing of Non-Wastewaters from the Production of Selected 
Organic Dyes, Pigments, and Food, Drug, and Cosmetic Colorants,'' and, 
``Regulatory Flexibility Screening Analysis for the Proposed Loadings-
Based Listing of Non-Wastewaters from the Production of Selected 
Organic Dyes, Pigments, and Food, Drug, and Cosmetic Colorants.'' The 
Economic Assessment focuses primarily on compliance costs to the 
regulated community, industry economic impacts, and a qualitative 
benefits discussion. Also covered are findings related to children's 
health, unfunded mandates, regulatory takings, federalism, tribalism, 
energy effects, and environmental justice. The Regulatory Flexibility 
Screening Analysis (RFSA) examines impacts to small entities that may 
result from this action, as proposed. A summary of findings from this 
Economic Assessment and the RFSA is presented below. The complete 
Economic Assessment and RFSA documents are available for public review 
and comment. These documents are located in the RCRA docket established 
for this action.
2. Need for the Proposed Rule
    The Agency has determined that selected constituents found in 
certain wastes generated by organic dye, pigment, and food, drug, and 
cosmetic (FD&C) colorant manufacturers may pose unacceptable risks to 
human health and the environment when improperly disposed in quantities 
above specified mass loading levels. We believe that the market and 
other private sector institutions have failed to adequately address 
pollution issues associated with these wastes.
    In most cases of environmentally related market failure, private 
industry costs of production do not fully reflect the pollution costs 
to human health and the environment. This may occur when individuals 
not responsible for the pollution bear the costs in human health and 
ecological damages. Environmental economists refer to this situation as 
a negative environmental externality. If negatively impacted 
individuals are economically, politically, and/or culturally weaker 
than the polluter, insufficient incentives are likely to exist for 
polluters to incur the additional costs necessary for implementation of 
appropriate pollution control measures. Furthermore, weaker parties 
harmed by the pollution are not likely to obtain compensation from the 
polluter due to the high transaction costs, property rights 
limitations, and the difficulty these citizens may have in establishing 
a causal relationship between the damage incurred and activity at the 
polluting facility.
    In addition to market failures, we believe that existing State 
programs designed to protect human health and the environment from 
unacceptable risks associated with these wastes have resulted in 
inconsistent protections. Individual State programs often result in a 
patchwork of inconsistent programs that fail to ensure uniform 
nationwide protection. Furthermore, variability among State programs 
covering the management of many wastes tends to reward manufacturers in 
some states while penalizing manufacturers in other states.
    Finally, today's rule implements mandates specifically and 
explicitly set forth by the U.S. Congress without the exercise of any 
policy discretion by EPA. This action is proposed under the authority 
of sections 3001 (b)(1), and 3001(e)(2) of the Hazardous and Solid 
Waste Amendments (HSWA) of 1984. These sections direct EPA to make a 
hazardous waste listing determination for wastes from the production of 
``dyes and pigments.''
    We believe this proposed rule is necessary, as required under RCRA, 
in order to sufficiently minimize risk to human health and the 
environment. We further believe that federal government intervention is 
necessary as the most efficient means to correct for market failures 
resulting from pollution caused by these wastes. The proposed rule will 
effectively internalize much of the costs associated with the existing 
negative externalities. Furthermore, while the Agency is sensitive to 
Federalism issues, we believe this proposal will help ensure consistent 
nationwide protection of human health and the environment from 
potentially inadequate disposal of these wastes, while, at the same 
time, establishing a more level economic playing field for all affected 
manufacturers.
3. Consideration of Non-Regulatory Alternatives
    Executive Order 12866 recognizes and emphasizes the need for 
comprehensive, high quality analytical support for all economically 
significant regulatory actions (as defined under Section 3(f)(1) of EO 
12866). While not economically significant, we have completed an 
Economic Assessment for this proposed action, as discussed above. We 
have also considered non-regulatory alternatives to this proposed rule. 
Section 1(b)(3) of the Executive Order instructs Executive Branch 
Agencies to consider and assess available alternatives to direct 
regulation prior to making a determination for regulation. This 
regulatory determination assessment should be considered, ``to the 
extent permitted by law, and where applicable.'' The ultimate purpose 
of the regulatory determination assessment is to ensure that the most 
efficient tool, regulation, or other type of action is applied in 
meeting the targeted statutory objective(s).
    We are currently subject to both a statutory mandate and a Consent 
Decree requiring a listing determination for specific dye, pigment, and 
FD&C production wastes. Because of this legal action, we are not at 
liberty to address this pollution problem through non-regulatory 
approaches (unless of course, we determine that these dyes and/or 
pigments wastes do not warrant listing as hazardous wastes). However, 
in the spirit of the Executive Order, we have contemplated reasonably 
feasible non-regulatory alternatives.
    Reasonably feasible alternatives to regulation may include diverse 
tools such as market-based incentives, education program(s), voluntary 
waste minimization/pollution prevention programs, and targeted 
negotiated agreements. A non-regulatory approach, such as educational 
outreach programs would be largely ineffective because the people who 
are made aware of the potential health risks (e.g., those people living 
near landfills where these wastes are disposed) have limited ability to 
reduce exposure without incurring significant costs. While we believe 
that our mass loadings-based approach may stimulate affected 
manufacturers to improve waste minimization activities, we recognize 
that various waste minimization and pollution prevention procedures are 
currently in place. These procedures, however, may be further 
stimulated in response to our mass loadings-based approach, thereby 
helping to reduce the toxic loadings from the wastes of concern. Other 
programs such as market-based incentives or negotiated agreements would 
be overly difficult, costly, and cumbersome to implement and monitor 
due to the quantities of waste involved and generation patterns of 
these wastes. However, we are open to stakeholder comments on non-
regulatory alternatives that, when applied in conjunction with a 
regulatory option, may help ensure cost-efficient protection of human 
health and the environment.

[[Page 66216]]

4. Evaluation of Regulatory Options
    We considered the proposed regulatory approach and two primary 
regulatory options for management of the waste streams examined in this 
assessment. These were: the proposed mass loadings-based approach 
(combined with a contingent management approach), a no list status quo 
option, and the standard listing or traditional approach. The no-list 
option would result in manufacturers not incurring any incremental 
management and/or administrative costs under RCRA. This option, 
however, may result in affected facilities facing future human health 
and environmental liabilities for groundwater or other damages. In 
addition, those exposed to the targeted contaminants above the loading 
levels of concern may continue to suffer adverse health and welfare 
impacts. The traditional listing option would require that all 
manufacturers generating any waste meeting a categorical listing 
description comply with RCRA Subtitle C requirements. Under this 
option, the entire quantity of the waste of concern would be defined as 
hazardous, regardless of any mass loadings-based determination. Most of 
the affected manufacturers would incur waste management and 
administrative procedure costs incremental to current baseline 
practices. Our mass loadings-based (with contingent management) 
approach, as proposed, requires affected manufacturers to determine 
whether or not their wastes contain the regulated constituents, and, if 
such constituents are generated in quantities of concern. Wastes with 
constituent levels exceeding the primary set of thresholds proposed for 
these wastes may be exempted from the listing if they show that their 
wastes do not contain constituent loadings above the Sec.  261.32(c)(2) 
listing levels and their wastes will be disposed of in a landfill 
subject to the design requirements in 40 CFR 258.40 or in a Subtitle C 
landfill cell subject to either Sec.  264.301 or Sec.  265.301. Only 
the incremental quantity above the annual mass loadings limit is 
affected. The affected manufacturer is not expected to incur any 
incremental costs if the waste does not contain constituents of concern 
or meet the applicable mass loading threshold. Furthermore, even if the 
wastes exceed the threshold mass loadings, the contingent management 
aspect of the proposed listing allows wastes to be handled as 
nonhazardous, provided the waste is disposed in a landfill that meets 
or exceeds the Sec.  258.40 design standards or in a Subtitle C 
landfill cell subject to either Sec.  264.301 or Sec.  265.301, and if 
the conditional mass loading limit is not met for toluene-2,4-diamine.
    Five out of the eight constituents of concern do not have UTS 
levels or LDR standards. The establishment of UTS levels and LDR 
standards for these constituents may result in sampling/analysis and 
treatment costs to industries beyond the manufacturers generating K181. 
We have examined these potential cost impacts under two scenarios: no 
listing--status quo, and UTS/LDR standards for these constituents.
    Finally, today's action, as proposed, may also impact Subtitle D 
landfills who have previously received the newly listed dye, pigment, 
perylene and FD&C wastes. Leachate collected from landfills that 
previously received these wastes may be considered hazardous if such 
waste is determined to have met the hazardous waste definition at the 
time of disposal, and the leachate generated from these landfills 
contains the K181 constituents. We considered two regulatory options 
for these landfills: the no-list option, and, a Clean Water Act 
temporary deferral option (Agency preferred).
5. Assessment of Costs, Economic Impacts, and Benefits
    Today's proposed action is projected to result in incremental 
compliance costs to selected organic dye, pigment, and FD&C 
manufacturers subject to the requirements of this rule. In most cases, 
these manufacturers may face no more than increased analytical and 
waste disposal costs. Non dyes and/or pigments manufacturers may be 
impacted by today's action if they generate wastes containing 
constituents that receive new LDR standards and are newly added to 
Appendix VIII. There may also be cost impacts to Subtitle D landfill 
operators if they would need to install tanks and/or piping systems in 
order to take advantage of the proposed temporary deferral under the 
Clean Water Act.
a. Introduction and Scope of This Section
    The value of any regulatory action is traditionally measured by the 
net change in social welfare that it generates. The Economic Assessment 
conducted in support of today's proposed rule examines both costs and 
qualitative benefits in an effort to assess the overall net change in 
social welfare. The primary focus of the Economic Assessment document 
is on compliance costs and economic impacts. In this section, we 
summarize our analytical methodology and findings for the dyes and 
pigments production industries. We also briefly review our findings 
relative to impacts on other industries and potential impacts on 
landfill operators. General benefits anticipated from the rule, as 
proposed, are examined in a qualitative format. The information 
presented here is derived from the Economic Assessment. This document 
is available in the docket established for today's action. Interested 
readers are encouraged to read and comment on the data, methodology, 
findings, and limitations presented in this document.
b. Industry Profile
    This proposed listing action affects the Synthetic Organic Dye and 
Pigment Manufacturing industries. These industries are identified under 
the Standard Identification Classification (SIC) as 2865, and under the 
North American Industrial Classification System (NAICS) as 325132. Our 
review of publically available data, combined with comments from the 
dyes and/or pigments industry associations has identified a total of 37 
facilities that may be subject to the proposed listing. Of this total, 
twenty are pigment producers, eighteen are dye producers, and six 
produce FD&C products. Six of the facilities produce both dyes and 
pigments and one facility produces all three. The 37 facilities are 
operated by 29 different companies, fifteen of which are defined as 
``small businesses'' under the Small Business Administration size 
standards.
    The World market value for all organic dyes and pigments is 
estimated at $14 billion for 2003, with the U.S. market representing 
about 20 to 24 percent of this total. The U.S. market for all organic 
dyes and/or pigments products generating wastes of concern represents 
approximately 60 to 65 percent of the total market. The U.S. market for 
organic dyes and pigments is forecast to grow by about 3 percent per 
year through 2005.
    Increased imports, pricing pressures, and rising costs are forcing 
some U.S. based organic dyes and/or pigments manufacturers to 
discontinue or modify production. Other manufacturers appear to be 
switching from onsite manufacturers to importers and/or formulators. 
Mergers and consolidations have been the general trend over the past 
ten years for many U.S. based manufacturers. However, recent years have 
also seen an increase in the number of small, low-cost entrepreneurial 
manufacturers, finishers and formulators who have been able to carve 
out market shares which were once held by the major companies. U.S. 
owned dye companies supply

[[Page 66217]]

approximately 25 percent of the total U.S. dye market, while European-
owned manufacturers hold the remaining 75 percent. Pigment production 
ownership is similarly structured.
c. Analytical Methodology
    Our first step in the development of the cost and economic impacts 
analysis was the preparation of an industry profile (briefly discussed 
above). This profile established the potentially regulated universe, 
market structure, gross revenues, and estimated value of affected 
production. We then established baseline conditions for the producers 
of concern. This included an assessment of waste quantities generated, 
management practices, and unit costs. Compliance management practices 
and unit costs were developed next. Compliance costs include 
implementation costs (waste sampling, and analysis, plus recordkeeping 
and reporting, if any), transport costs, and compliant treatment and/or 
disposal costs, as appropriate. Baseline costs less total costs of rule 
compliance were calculated to determine incremental costs of compliance 
and economic impacts. All data were derived from publically available 
government and industry sources. No confidential business information 
(CBI) was used in the preparation of this analysis.
d. Affected Waste Quantities
    This rule proposes a mass loadings-based listing for selected 
organic dye, pigment, and FD&C production nonwastewaters, to be 
identified as K181, if they meet or exceed either of two mass-based 
constituent thresholds. Non-wastewater quantities were estimated for 
the 37 facilities potentially subject to the rule requirements. 
Wastewater quantities were first estimated in order to derive 
wastewater treatment sludge quantities. Annual wastewater generation 
was estimated for the 37 facilities based on several sources. Facility 
specific information was available for eight direct dischargers and 
five indirect dischargers. Wastewater flow rates were estimated for the 
remaining 24 indirect dischargers based on estimated dyes and/or 
pigments production and wastewater flow data derived from a 1987 U.S. 
EPA Office of Water guidance document.\62\
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    \62\ U.S. EPA. October 1987. ``Development Document for Effluent 
Limitations Guidelines, New Source Performance Standards, and 
Pretreatment Standards for the Organic Chemicals and the Plastics 
and Synthetic Fibers Point Source Category Volume I.'' Industrial 
Technology Division, Office of Water Regulations and Standards.
---------------------------------------------------------------------------

    We developed a log normal distribution of wastewater quantities 
from the statistics available in the above referenced document. A log-
normal distribution is widely used under the following conditions: 
values are positively skewed with most of the values near the lower 
limit, the variable can increase without limits, but cannot fall below 
zero; and where the coefficient of variability (the ratio of the 
standard deviation to the mean) is greater than 30 percent. The 
wastewater flow statistics met these criteria. The coefficient of 
variability for the wastewater flow data was 453 percent.We used a 
commercially available software program to develop a distribution curve 
for the wastewater data. This program used a Monte Carlo technique to 
create a distribution of outcomes over thousands of iterations (50,000 
in this case). From the distribution created by this program, the 
wastewater quantities were determined for every fifth percentile. Based 
on the production revenue data obtained for each facility, a 
corresponding production revenue percentile was assigned to each of the 
indirect dischargers. It was assumed that the production revenue 
directly correlated with the quantity of wastewater generated. For 
example, if a facility's product production revenue was at the 90th 
percentile level, it will generate wastewater at the 90th percentile 
level as well.
    Annual wastewater treatment sludge generation rates were estimated 
for the 37 facilities based on two sources. Facility specific 
information was available for one facility who reported using a reverse 
osmosis wastewater treatment system. The wastewater treatment sludge 
generation rate for one other facility who reported using reverse 
osmosis, was estimated based on the calculated generation ratio. 
Wastewater treatment sludge generation rates for the remaining 35 
facilities were based on total suspended solids (TSS) data from the 
1987 Effluent Guidelines report. The total quantity of potentially 
impacted solid waste generated annually from the 37 facilities is 
estimated to range from 44,000 to 69,000 metric tons.
    Other non-liquid wastes, in addition to wastewater treatment 
sludges, are expected to be impacted by this rule. These include: spent 
catalysts, spent adsorbent, equipment cleaning sludge, product 
standardization filter cake, and dust collector filter fines. The 
quantity of solids generated by these waste streams are assumed to be 
very minor. Furthermore, some of these wastes may be included in the 
wastewater treatment sludge estimates. No publicly available 
information regarding the actual generation rates of these wastes 
within the dyes and/or pigments industry was found.
e. Baseline Waste Management Procedures and Unit Costs
    Baseline waste management methods were derived through a review of 
industry and trade group comments, the 1999 TRI Report, and general 
public sources (including internet sources).
    Baseline management practices for the wastes of concern include 
sludge dewatering for handling and disposal purposes (based on economic 
feasibility), then disposal in an unregulated clay-lined or unlined 
landfill, Subtitle D landfill, or a Subtitle C landfill (bulk or super 
sack). Three facilities with available site-specific information 
pertaining to sludge management methods have been identified. Two of 
these facilities report offsite Subtitle D landfill, while one reported 
onsite Subtitle C incineration followed by onsite Subtitle C landfill. 
The remaining facilities are assumed to manage sludge offsite in 
unregulated clay-lined landfills. This assumption will result in an 
overestimation of compliance costs if facilities are currently 
disposing of their wastes in composite lined landfills meeting Part 258 
requirements.
    Costs for landfill disposal were developed from the Remedial Action 
Cost Engineering and Requirements (RACER) cost estimating software, and 
the March 2000 Remediation Market Report Published by Chartwell. Costs 
in RACER are based on the 2002 Environmental Cost Handling Options and 
Solutions (ECHOS) cost database. The RACER disposal cost for hazardous 
and nonhazardous wastes is presented as a 30 city average of major 
cities across the United States. Chartwell reports the average costs of 
Subtitle D commercial landfill by state. For the purposes of this 
analysis, the state averages were averaged for a national average cost 
of disposal. All costs were inflated to 2003 dollars for this estimate 
using the Consumer Price Index. Disposal of solid waste in unregulated 
unlined landfills was estimated using the Subtitle D landfill disposal 
unit cost. Fifty percent of the Subtitle D landfill cost was used as a 
proxy for unregulated clay-lined landfill disposal costs. Unit costs 
are as follows: Subtitle D Landfill--$42.60/ton, Unregulated clay-lined 
landfill--$21.30/ton.
    Costs for commercial incineration were developed from RACER and the 
Hazardous Waste Resource Center's ``January 2002 Incinerator and 
Landfill

[[Page 66218]]

Cost Data'' survey \63\ (HWRC). The HWRC data present the results of a 
survey of the Environmental Technology Council (ETC). All costs were 
inflated to 2003 dollars for this estimate using the Consumer Price 
Index. Incineration costs for shipment quantities less than ten tons 
were estimated using jumbo sack disposal costs and 55-gallon drum 
disposal costs for dry sludges/solids and pumpable sludges, 
respectively. Costs for small quantities of non-pumpable sludge was 
estimated using a 30 percent markup over the bulk incineration unit 
cost to account for additional handling costs. The markup for small 
quantities was approximated using the unit cost increase between jumbo 
sack and bulk Subtitle C landfill (approximately 37 percent).
---------------------------------------------------------------------------

    \63\ Hazardous Waste Resource Center http://www.etc.org/costsurvey6.cfm.
---------------------------------------------------------------------------

    Onsite incineration (rotary kiln) costs were estimated from several 
workbook methodologies.64 65 Costs were inflated to 2003 
dollars using the Chemical Engineering Plant Cost Index for capital 
costs and the Consumer Price Index for O&M costs.
---------------------------------------------------------------------------

    \64\ Vogel, Gregory A., MITRE Corporation, ``The Estimation of 
Hazardous Waste Incineration Costs,'' sponsored by U.S. EPA, 
January, 1983.
    \65\ K. Lim, R. DeRosier, R. Larkin, and R. McCormick, Acurex 
Corporation, Energy & Environmental Division, ``Retrofit Cost 
Relationships for Hazardous Waste Incineration,'' prepared for the 
U.S. EPA, Office of Research and Development, Industrial 
Environmental Research Laboratory, Incineration Research Branch, 
January, 1984.
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    Incineration cost estimates are as follows: Onsite Rotary Kiln 
Incineration of non-pumpable sludge: 147.2 * (tons) + $927,503, Offsite 
Bulk Incineration of non-pumpable Sludges: $560.14\ton, Offsite Bulk 
Incineration of pumpable Sludge: $1,033.2/ton, Offsite Small Quantity 
Incineration of non-pumpable Sludges: $728.2/ton, and Offsite Bulk 
Incineration of pumpable sludge (drummed): $1,947.5/ton.
f. Compliance Waste Management Procedures and Unit Costs
    Compliance with the proposed rule may include one or more of the 
following incremental cost elements: alternative waste management 
procedures, additional waste sampling and analysis requirements, 
alternative waste transport procedures and patterns, manifest 
requirements, RCRA Part B permit requirements, administrative 
requirements, and corrective action requirements. Compliance with the 
waste management procedures for affected sludge quantities may be 
disposal in a composite lined Part 258 or equivalent Subtitle D 
landfill, or hazardous waste incineration, depending upon option 
analyzed. Unit costs for these procedures are identified above.
    The annual cost for sampling and analysis of non-aqueous waste 
streams is estimated to range from $10,509 to $10,858.\66\ This 
estimate includes costs for sample collection, development of 
procedure, feasibility studies, five annual samples of each analysis 
for mass loading determination, and 15 samples for characterization of 
the wastes. Feasibility studies, procedure development, and 
characterization are annualized over five years at a 7 percent rate for 
borrowing capital (0.24389). A feasibility study is assumed for all 
CoCs without a prescribed method in the EPA document SW-846 at an 
estimated cost of $1,559. Four of the eight CoCs do not have standard 
methods listed in SW-846. Procedure development is required for these 
CoCs. Procedure development consists of performing the analysis 
multiple times (to develop calibration curves, identify spike and 
dilution rates, etc.). Three laboratories are assumed to develop 
methods and procedures for analysis of constituents without methods and 
procedures already established. Costs incurred by the laboratories are 
divided across all 37 generating facilities.
---------------------------------------------------------------------------

    \66\ See ``Economic Assessment for the Proposed Loadings-Based 
Listing of Non-Wastewaters from the Production of Selected Organic 
Dyes, Pigments, and Food, Drug, and Cosmetic Colorants.''
---------------------------------------------------------------------------

    Hazardous waste shipments are tracked through the use of a 
hazardous waste manifest which accompanies each waste shipment. 
Manifesting costs were obtained from the ``Hazardous Waste Manifest 
Cost Benefit Analysis,'' prepared by the Logistics Management Institute 
in October 2000. Costs were inflated to 2003 dollars using the Consumer 
Price Index. An average cost of $122 (2003 dollars) per manifest was 
assumed to be incurred by any generator shipping hazardous waste. The 
transporter and generator costs were combined to estimate a total 
manifesting cost per shipment of $239. Costs for shipping papers for 
nonhazardous wastes are also estimated. These include, costs to 
prepare, carry, and retain shipping papers. These costs were derived 
from the ``Hazardous Waste Manifest Cost Benefit Analysis.'' Total 
costs are estimated at $90.40 per shipment for the transporter and 
generator, combined. This covers costs to prepare, carry and retain all 
nonhazardous shipping papers. Cost for disposal of wastes in 
unregulated or Subtitle D landfills include costs for shipping papers. 
All other methods of offsite disposal include costs for hazardous waste 
manifest.
    Hazardous waste transportation costs (excluding manifesting costs) 
were estimated based on van trailer (small quantity) and roll-off bin 
(bulk) trucking unit costs reported in RACER. Costs are based on 
distance and maximum truck load size of 18 tons.\67\ A minimum of four 
loads per year is assumed based on the maximum accumulation period of 
90 days. Otherwise, the number of loads per year is calculated by 
dividing the total annual generation quantity by the assumed maximum 
truck load size of 18 tons. For small businesses, a truck load size of 
5 tons was assumed. The ECHOS minimum shipment fee of $730 was used to 
determine transportation unit costs below 200 miles for hazardous 
waste. The distances presented in the EPA report: ``Evaluation of Cost 
and Economic Impacts of F006 Recycling Rulemaking Options'' from 
December 2001 for landfill disposal of electroplating wastes (based on 
a sample of 75 facilities) were utilized as a proxy for the 
transportation distances for sludge disposal. Nonhazardous waste 
transportation costs (excluding manifesting costs) also were estimated 
based on bulk hazardous waste transportation costs reported in RACER. 
Costs are based on distance and a maximum load size of 18 tons. Due to 
the relatively close transportation distances estimated for Subtitle D 
landfills, a unit cost of $2.21 per mile ($0.12 per ton-mile) was used. 
The transportation cost is estimated to be less than the hazardous 
transportation unit cost due to the regularly scheduled, full 18-ton, 
bulk nonhazardous waste shipments. For nonhazardous waste and post rule 
product recovery, no minimum number of loads is assumed. The number of 
shipments per year is calculated by dividing the total annual 
generation quantity by the assumed maximum truck load size of 18 tons.
---------------------------------------------------------------------------

    \67\ RACER indicates a maximum truck load size of 18 tons.
---------------------------------------------------------------------------

    The weighted average hazardous waste transportation unit cost to a 
Subtitle C landfill was estimated at $3.81/mile with a weighted average 
distance of 338 miles. The average hazardous waste transportation unit 
cost to an incineration facility was estimated at $3.26/mile, with an 
average distance of 577 miles. The assumed average nonhazardous waste 
transportation unit cost to a Subtitle D landfill was $2.21/mile and an 
average distance of 50 miles.
    Cost for administrative duties were derived using hour estimates 
for each administrative task based on ``best

[[Page 66219]]

engineering judgement'' and are described further in the economic 
analysis background document.
    Costs for the RCRA Part B Permit were estimated using ``Estimated 
Costs for the Economic Benefits of RCRA Noncompliance'' dated September 
1997. General facility requirements and incinerator requirements were 
included for the construction and operation of an onsite sludge rotary 
kiln. Under the traditional listing option, we estimate that between 
four and eight of the 37 facilities would seek a RCRA permit to operate 
an onsite incinerator, because it is more economical than managing the 
waste in an offsite commercial incinerator. A cost of $51,924 for the 
general facility requirements and $26,495 for the incinerator 
requirements was determined. Permit costs were annualized over 10 years 
at a 7 percent rate for borrowing capital (0.14238).
    Incremental corrective action costs associated with unpermitted 
facilities include the cost to conduct a RCRA Facility Investigation 
(RFI), a Corrective Measures Study (CMS), and remediate solid waste 
management units (SWMUs) and areas of concern (AOCs). Depending upon 
the option analyzed, some of the unpermitted facilities may be brought 
into the RCRA program if they seek a RCRA Part B permit for 
incinerators. RCRA corrective action is typically triggered by 
facilities seeking a RCRA permit. As noted above, under the traditional 
listing option, we estimate that between four and eight of the 37 
facilities will seek a RCRA permit to operate an onsite incinerator 
because it is more economical than managing it in an offsite commercial 
incinerator. These facilities may incur corrective action costs. 
Potential corrective action costs were not estimated for this analysis.
g. Costs and Economic Impacts on the Affected Industries
    Our analysis for this proposed rulemaking evaluated the Agency's 
preferred approach for management of the wastes of concern, and two 
primary regulatory options. The Agency's preferred approach is a mass 
loadings-based (with contingent management) rulemaking. The two options 
are a no-list--no action determination, and the standard or traditional 
listing approach. Beyond the time and effort required to read and 
understand the final rule, the no-list option would result in affected 
manufacturers incurring no incremental waste management and/or 
administrative costs. The Agency preferred mass loadings-based 
approach, and the traditional listing option are discussed below.
    Incremental compliance costs for the proposed mass loadings-based 
approach with contingent management were found to range from $0.6 to 
$4.3 million per year, depending upon total waste quantity managed, 
nonconditional mass loading levels, and the number of affected 
facilities. These findings generally assume baseline waste management 
in an unregulated clay-lined landfill and compliance management in a 
Subtitle D landfill meeting Sec.  258.40 standards.\68\ Actual baseline 
nonwastewater management may be in lined municipal landfills meeting 
Sec.  258 .40 standards for most or all potentially impacted 
facilities. If this is the case, incremental costs and any associated 
benefits under the Agency preferred approach would be less than 
estimated. See Section 4.4.1 and Table 4-7 in the Economic Assessment 
background document for a complete discussion. The high-end estimate 
assumes, in part, Subtitle C incineration for all nonwastewaters 
generated at facilities identified as using toluene-2,4-diamine. Under 
this scenario, the conditional mass loading level for toluene-2,4-
diamine is assumed to be exceeded at these facilities. Additional 
sampling and analysis, transport, and administrative costs are 
included, where appropriate. Corporate level economic impacts under 
this approach were found to be less than 3 percent of total gross 
annual revenues for but one of the affected companies.
---------------------------------------------------------------------------

    \68\ Baseline nonwastewater management in an unregulated clay 
lined landfill was assumed where facility-specific informaiton was 
restricted or not available.
---------------------------------------------------------------------------

    Incremental compliance costs for the standard, or traditional 
listing option are estimated to range from $9.4 to $15.9 million per 
year, depending upon the total quantity of waste impacted.\69\ This 
estimate also includes additional sampling and analysis, transport, 
administrative, RCRA Part B, and corrective action costs, where 
appropriate. Corporate level economic impacts under this option were 
found to be less than 3 percent of total gross annual revenues for 93 
percent of all affected companies.
---------------------------------------------------------------------------

    \69\ Note: An extreme high-end scenario was examined where all 
facilities were required to burn all waste under full Subtitle C 
requirments. Total annualized costs under this scenario were 
estimated at $26 million. This scenario was examined for high-end 
bounding purposes only and is not considered to be a feasible 
regulatory option.
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h. Impacts on Other Industries
    This regulation may result in impacts to other industries. 
Specifically, two categories may be impacted: Municipal and industrial 
solid waste landfill operators who previously accepted the wastes of 
concern, and, non dyes and/or pigments generators of hazardous waste 
containing one or more of the five Constituents of Concern that are not 
currently on Appendix VIII or have LDR requirements.
    Landfills: A common disposal practice for currently nonhazardous 
dye, pigment, and FD&C waste is offsite disposal in municipal solid 
waste landfills. The leachate derived from this waste has traditionally 
been collected and recirculated, treated, and/or disposed. Because of 
the proposed listing, collected leachate from landfills (i.e., cells) 
that have accepted these wastes may be hazardous under the Derived-from 
Rule (see Section IV.E). Also, when the leachate from these two wastes 
mixes with leachate from other wastes, the entire leachate quantity 
from the affected landfill (or cell) may be considered hazardous under 
the Mixture Rule. By changing the regulatory status of the proposed 
wastes, the collected leachate from the disposal of these wastes may be 
covered under Subtitle C of RCRA. Municipal Solid Waste (MSW) and other 
landfills that have previously accepted and generated leachate from 
these wastes (received in quantities above mass loadings levels of 
concern) may face increased leachate management costs. This would be an 
indirect impact of the rule, as proposed.
    The EPA report, ``Characterization of Municipal Solid Waste in the 
United States: 1997 Update,'' EPA 530-R-98-007, May 1998, estimates 
there were approximately 2,400 MSW landfills in the contiguous U.S. for 
1996. Based on the total number of potentially affected dye, pigment, 
and FD&C facilities, and their locations, it is likely that no more 
than fifty MSW landfills received wastes of concern (in any quantity). 
Leachate quantities generated by each of these landfills are dependent 
upon the geographic location, area, leachate collection system design, 
and operation of the landfill.
    We are proposing a Clean Water Act temporary deferral for 
potentially affected landfills under today's action. This temporary 
deferral would exempt the landfill leachate from RCRA Subtitle C 
regulation if it is managed pursuant to certain conditions. After two 
years, impacted facilities would no longer be allowed to manage the 
exempt leachate in surface impoundments as nonhazardous. Under this 
approach, selected landfills may choose to modify their facilities, or 
implement expanded personnel training programs and/or alternative 
operation and maintenance procedures. Costs associated with these 
activities have not been quantified but are likely to be negligible.

[[Page 66220]]

    Non Dyes and/or Pigments Waste Generators: Five of the eight 
constituents of concern \70\ are not currently on Appendix VIII. These 
are: o-anisidine, p-cresidine, 2,4-dimethylaniline, 1,2-
phenylenediamine, and 1,3-phenylenediamine. The proposed listing would 
also add five chemicals with the standards in Table VI-1 to the UTS, 
namely: o-anisidine, p-cresidine, 2,4-dimethylaniline, 1,3-
phenylenediamine, and toluene-2,4-diamine. The proposed rule will 
result in the addition of these constituents to Appendix VIII and 
establishment of the additional UTS standards. This would be a direct 
impact of the rule potentially affecting an expanded universe of 
facilities.
---------------------------------------------------------------------------

    \70\ The eight constituents of concern are: aniline, o-
anisidine, p-cresidine, 4-chloroaniline, 2,4-dimethylaniline, 1,2-
phenylenediamine, 1,3-phenylenediamine, and toulene-2,4-diamine.
---------------------------------------------------------------------------

    We examined the TRI database, Material Safety Data Sheets (MSDS), 
Chemchannels.com \71\ and Biennial Report System (BRS) data in an 
effort to identify other facilities that may be generating hazardous 
wastes containing any of the constituents of concern.
---------------------------------------------------------------------------

    \71\ http://www.chemchannels.com/chemchannel/default.asp.
---------------------------------------------------------------------------

    Based on available data, we identified 13 non dye and/or pigment 
facilities that may be impacted by the expanded scope of this proposed 
rule. The constituents of concern appear to be contained in other 
hazardous organic nonwastewaters and currently managed by either energy 
recovery or incineration. This is the common management procedure for 
these wastes. This procedure is assumed to continue after the rule is 
promulgated given that it will comply with the LDR requirements. 
Incremental costs to impacted expanded scope facilities are expected to 
be limited to additional sampling and analysis requirements necessary 
to fully characterize the wastes. We estimate that the additional 
sampling and analysis costs would average $2,183.50 per facility, per 
year. The total cost for all 13 facilities is estimated to be no more 
than $28,400 per year.
    Remediation of Hazardous Waste Sites: Adding constituents to 
Appendix VIII, by itself, is not expected to have a significant impact 
on remediation of hazardous waste sites. The RCRA regulations in 40 CFR 
Part 264 establish management standards for hazardous waste treatment, 
storage and disposal facilities. Subpart F of 264 sets standards for 
addressing releases from solid waste management units. Appendix VIII is 
identified in section 264.93 of Subpart F as the list from which 
facility-specific groundwater protection standards are developed as 
part of a compliance monitoring program under 264.99. These ground-
water protection standards are comprised of the Appendix VIII 
constituents that are ``reasonably expected to be in or derived from 
waste contained in a regulated unit.'' The addition of these substances 
to Appendix VIII, therefore, would only potentially affect those 
facilities in compliance monitoring that (1) would reasonably be 
expected to use or make these chemicals, or (2) manage these wastes. 
Throughout the remainder of this Subpart, the Agency directs permit 
writers to Appendix IX, a list specifically designed to be used in 
monitoring groundwater. We are not proposing to add any constituents to 
Appendix IX.
    We have addressed the potential impact on the first category of 
facilities (i.e., those that would reasonably be expected to use or 
make these chemicals, beyond the Dye and Pigment industries we 
evaluated) explicitly in our expanded scope analysis. For the second 
category of facilities, those that manage hazardous wastes that might 
contain the constituents being added to Appendix VIII, we believe these 
costs to be negligible. Our analysis indicates that these compounds are 
not widely used in commerce, and thus be unlikely to trigger the 264.93 
standard of ``reasonably expected to be in or derived from waste 
contained in a regulated unit'' standard. Adding chemicals to Appendix 
VIII may also result in the remediation of these constituents at 
Superfund sites. However, for the same reasons noted above, we believe 
that the addition of these constituents to Appendix VIII will have a 
very limited impact (if any) on Superfund cleanups.
i. Lead as a Potential K181 Constituent
    We have considered whether a K181 lead standard may significantly 
change our assessment of the costs and economic impacts estimated for 
the Agency Preferred Approach. Our preliminary assessment indicates 
that there would be no substantive impacts. Three facilities were found 
to generate wastes that may contain toluene-2,4-diamine. These three 
facilities were assumed to generate this constituent above 
nonconditional loading levels under our ``high'' analytical scenario 
for the Agency Preferred Approach. If we add lead as a K181 
constituent, any of these facilities with lead in their wastes would 
need to stabilize post incineration residuals to comply with land 
disposal restrictions. Assuming all waste is incinerated, the maximum 
aggregate incremental costs associated with stabilization, if required, 
are likely to be insignificant for these facilities on an individual 
basis. Aggregate cost impacts for all three facilities would be no more 
than $340,000 per year.
    We also considered the potential impact of a K181 standard for lead 
for Eastman and Engelhard (Harshaw Chemical). Both of these facilities 
have reported significant quantities of lead in the Toxic Release 
Inventory (TRI). We believe that Eastman currently combusts it's 
commingled (largely non-dyes) wastes, and then manages the resultant 
residues in an onsite landfill. Based on available data, this landfill 
does not appear to meet the description of the exempt landfill cells, 
as detailed in the listing description (i.e., it is not a municipal 
solid waste landfill or a Subtitle C landfill). Eastman, therefore, may 
pursue one of a variety of actions. These include: Segregating the 
wastes in the least costly manner feasible, eliminating the waste 
altogether, or sending all affected ash to a Sec.  258.40 compliant MSW 
landfill. Eastman also has a Subtitle C landfill onsite, which could be 
used for some or all of the incinerated waste of concern. We have not 
assessed cost impacts associated with these options. Based on 1999 
Biennial Reporting data, Engelhard already manages the majority of 
their lead-bearing wastes as hazardous, while the remainder appears to 
go to a MSW landfill. We believe, therefore, that the Engelhard 
facility is not likely to incur any additional costs of concern. 
Section 5.3 of the Economic Assessment background document provides a 
more complete discussion of these findings.
j. Risk Assessment and Benefits
    As described in detail in Section III, we set the levels for 
nonwastewaters by modeling disposal in MSW landfills using several 
liner assumptions. We set the baseline loading limits using the results 
from clay-lined landfills, and we used the composite-liner results to 
set the loading limit for one constituent in MSWLFs meeting the liner 
design criteria in Sec.  258.48. The mass loading limits are based on 
risks from residential use of groundwater from wells positioned near 
the landfills.
    Groundwater generally moves relatively slowly, such that the 
constituents of concern are not expected to reach the nearby wells for 
a number of years. For the eight chemicals for which we are proposing 
loading limitations, we examined the groundwater travel times to the 
receptor wells for the 90th percentile runs of the Monte Carlo 
simulations (these runs were the bases of the loading limits).

[[Page 66221]]

The average groundwater travel time was 189 years, and the range of 
travel times across the eight constituents was 74 to 424 years.
    As noted in the next section, due to data limitations, we have not 
attempted to estimate the change in net welfare potentially resulting 
from this proposed rule, nor have we been able to quantify human health 
or environmental benefits. Thus, the benefits in terms of reduced human 
health risk are unquantified, but are expected to occur some time after 
the rule is effective (between 74 to 424 years after the effective 
date).
k. Social Costs and Benefits
    The social costs of any regulatory action should describe the total 
value of resources used to comply with the rule, resulting in a 
comprehensive measurement of change in economic net welfare. These 
impacts are measured following market adjustments based on industry 
supply and demand functions. Due to our lack of data, limited 
analytical budget, and strict schedule, we have not attempted to 
estimate the change in net welfare potentially resulting from this 
proposed rule. Due to these same limitations, we have not been able to 
quantify or monetize human health or environmental benefits. Additional 
data are necessary to make a firm determination as to whether there 
will be quantifiable net benefits (i.e., benefits exceeding social 
costs) from the proposed rule.
    Below we qualitatively describe those groups who are likely to be 
positively and negatively impacted by this proposed rule.

Positively Impacted Groups

    [sbull] Dye, pigment, and FD&C manufacturers who may be producing 
acceptable lower cost substitutes to the products generating the wastes 
of concern,
    [sbull] Population groups surrounding dye, pigment, and FD&C 
production facilities, plus those near unlined landfills and other 
landfills that do not meet the design standards in Sec.  258.40. These 
populations may benefit from lower health risks due to increased 
management control and/or improved waste treatment, thereby 
theoretically experiencing reduced health care costs and increased 
productivity.

Negatively Impacted Groups

    [sbull] Dye, pigment, and FD&C manufacturers who are subject to 
requirements of the proposed rule.
    [sbull] Non dyes and/or pigments manufacturers who may be impacted 
by expanded scope requirements,
    [sbull] Consumers who may be impacted if there are increases in 
dye, pigment, and FD&C prices as a result of the rule,
    [sbull] Municipal landfills that may need to install new tanks or 
piping systems, or implement other procedures in order to take 
advantage of the proposed temporary deferral under the Clean Water Act.

B. Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The 
Information Collection Request (ICR) document prepared by EPA has been 
assigned EPA ICR number 2120.01.
    EPA is proposing to list dyes and/or pigments nonwastewaters (i.e., 
K181 waste) under the authority of sections 2002(a), 3001(b), 
3001(e)(2), 3004(d)-(m), and 3007(a) of RCRA, as amended by the 
Hazardous and Solid Waste Amendments of 1984 (HSWA). Section 3001(e)(2) 
directs EPA to make a determination of whether or not to list under 
section 3001(b)(1) dyes and pigments, among other wastes. Under this 
authority, EPA has examined dyes and/or pigments production wastes 
(e.g., using risk assessment tools), identified CoCs and their 
potential risks, and established a mass ``loadings-based'' approach 
that would qualify the waste as hazardous under RCRA. Under sections 
2002(a) and 3007(a) of RCRA, EPA is establishing information collection 
requirements that are needed to ensure that the listed wastes are 
managed and disposed of properly.
    In addition, the proposed rule satisfies EPA's duty under a Consent 
Decree between EPA and the Environmental Defense (formerly 
Environmental Defense Fund (EDF)). Under this Consent Decree, the 
Agency is required to ``promulgate final listing determinations for 
azo/benzidine, anthraquinone, and triarylmethane dye and pigment 
production wastes on or before February 16, 2005 * * * These listing 
determinations shall be proposed for public comment on or before 
November 10, 2003.''
    EPA is proposing that the mass loadings-based listing be self-
implementing, which means that no prior governmental review or approval 
is needed for the waste to be claimed as nonhazardous. Because of this, 
EPA believes that the recordkeeping requirements in the proposal are 
needed to ensure that generators characterize their wastes accurately 
and reliably, and keep records of the claims on site.
    EPA believes the proposed mass loadings-based approach allows 
generators to evaluate the variable wastes they generate individually 
for hazard, so only wastes that are hazardous are listed. As a result, 
there should be less burden on dyes and/or pigments manufacturers than 
would be imposed by a traditional listing that would bring entire 
wastes into the hazardous waste system, regardless of the 
characteristics of the wastes generated by individual generators. 
Finally, a mass loadings-based listing approach may provide an 
incentive for hazardous waste generating facilities to modify their 
manufacturing processes or treat their wastes.
    EPA estimates that 37 respondents will be subject to the new 
paperwork requirements under the proposed rule. The hourly 
recordkeeping burden from the new requirements ranges between one and 
11 hours per respondent per year. This burden includes time for reading 
the regulations (once per respondent over three years), determining 
whether dyes and/or pigments nonwastewaters exceed regulatory listing 
levels, and keeping documentation on site, as specified.
    EPA estimates the total cost to respondents subject to the new 
paperwork requirements under the proposed rule to be $76,626 per year. 
This includes a total labor cost per year of $33,066, a total 
operations and maintenance cost per year of $43,560, and no capital 
costs. Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.
    To comment on the Agency's need for this information, the accuracy 
of the provided burden estimates, and any suggested methods for 
minimizing

[[Page 66222]]

respondent burden, including the use of automated collection 
techniques, EPA has established a public docket for this rule, which 
includes this ICR, under Docket ID number RCRA-2003-0001. Submit any 
comments related to the ICR for this proposed rule to EPA and OMB. See 
Addresses section at the beginning of this notice for where to submit 
comments to EPA. Send comments to OMB at the Office of Information and 
Regulatory Affairs, Office of Management and Budget, 725 17th Street, 
NW., Washington, DC 20503, Attention: Desk Office for EPA. Since OMB is 
required to make a decision concerning the ICR between 30 and 60 days 
after November 25, 2003, a comment to OMB is best assured of having its 
full effect if OMB receives it by December 26, 2003. The final rule 
will respond to any OMB or public comments on the information 
collection requirements contained in this proposal.

C. Regulatory Flexibility Act

    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, generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, a small entity is defined as: (1) A small business that is 
defined by the Small Business Administration by category of business 
using the North American Industrial Classification System (NAICS) and 
codified at 13 CFR 121.201; (2) a small governmental jurisdiction that 
is a government of a city, county, town, school district or special 
district with a population of less than 50,000; and (3) a small 
organization that is any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.
    We have identified a total of 37 organic dye, pigment, and FD&C 
facilities in operation in the U.S., which are owned by 29 different 
companies that are believed to be generating wastes of concern. Of 
these, 16 facilities are owned by 15 small companies. This 
determination is based on the Small Business Administration (SBA) 
definition of ``small business'' for these industries, defined as fewer 
than 750 employees at the corporate level.\72\ A number of these 
companies are very small, with fewer than 50 total full-time employees. 
Of the 13 expanded scope companies, one was determined to be a small 
business.
---------------------------------------------------------------------------

    \72\ ``Table of Small Business Size Standards--Matched to North 
American Industrial Classification System (NAICS) Codes,'' revised 
May 5, 2003. Small Business Adminsitration (SBA).
---------------------------------------------------------------------------

    The cost of compliance impacts for all small companies potentially 
affected by the rule were found to range from 0.00 percent to 0.52 
percent of gross annual corporate revenues, depending upon the level of 
nonwastewater quantities generated. The percent of annual corporate 
sales impact for the one expanded scope small business is estimated at 
0.08 percent.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not result in 
significant economic impacts on a substantial number of small dyes and/
or pigments production businesses subject to the rule requirements. The 
reader is encouraged to review and comment on the regulatory 
flexibility screening analysis prepared in support of this 
determination: ``Regulatory Flexibility Screening Analysis for the 
Proposed Loadings-Based Listing of Non-Wastewaters from the Production 
of Selected Organic Dyes, Pigments, and Food, Drug, and Cosmetic 
Colorants.'' This document is available in the public docket.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 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 
one 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, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials 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.
    EPA has determined that this proposed rule would not contain a 
Federal mandate that may result in expenditures of $100 million or more 
for state, local, and tribal governments, in the aggregate, or the 
private sector in any one year. The nationwide annual cost for this 
rule, as proposed, is estimated to be less than five million dollars. 
This proposed rule does not impose an enforceable duty on any State, 
local or tribal government; consequently it does not include any 
Federal mandate with the potential to result in expenditures of $100 
million of more to State, local, or tribal governments. EPA also has 
determined that this rule contains no regulatory requirements that 
might significantly or uniquely affect small governments. In addition, 
the private sector is not expected to incur costs exceeding $100 
million. Thus, today's rule is not subject to the requirements of 
sections 202 and 205 of the Unfunded Mandates Reform Act. EPA has 
determined that this proposed rule contains no regulatory requirements 
that might significantly or uniquely affect small governments.

E. Executive Order 13132: Federalism

    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'' is 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.''

[[Page 66223]]

    Under Executive Order 13132, EPA may not issue a regulation that 
has federalism implications, that imposes substantial direct compliance 
costs, and that is not required by statute, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by State and local governments, or EPA consults with 
State and local officials early in the process of developing the 
proposed regulation.
    This proposed rule does not have federalism implications. It will 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. The proposed rule focuses on 
requirements for facilities generating wastes of concern. Marginal 
administrative burden impacts may occur to selected States and/or EPA 
Regional Offices such as increased administrative needs, enforcement 
requirements, or voluntary information requests. However, this rule, as 
proposed, will not have substantial direct effects on the States or the 
relationships between governments in its implementation. Thus, 
Executive Order 13132 does not apply to this rule. Although section 6 
of Executive Order 13132 does not apply to this rule, EPA did consult 
with State officials in the development of this rule. State officials 
were contacted concerning baseline waste management procedures for the 
wastes of concern.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed rule 
from State and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175,\73\ entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 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.'' This proposed rule does not 
have tribal implications, as specified in Executive Order 13175. The 
proposed rule focuses on requirements for all regulated sources without 
affecting the relationships between tribal governments in its 
implementation, and applies to all regulated sources, without 
distinction of the surrounding populations affected. Thus, Executive 
Order 13175 does not apply to this rule. EPA specifically solicits 
additional comment on this proposed rule from tribal officials.
---------------------------------------------------------------------------

    \73\ Executive Order 13084 is revoked by this Executive Order.
---------------------------------------------------------------------------

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    The Executive Order 13045, entitled ``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 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. EPA 
interprets Executive Order 13045 as applying only to those regulatory 
actions that are based on health or safety risks, such that the 
analysis required under section 5-501 of the Order has the potential to 
influence the regulation. This proposal is not subject to Executive 
Order 13045 because it is determined to not be economically significant 
under Executive Order 12866, and does not concern an environmental 
health or safety risk that we have reason to believe may cause a 
disproportionate effect on children. Concerned stakeholders are 
encouraged to submit any relevant data and provide comments on this 
determination.

H. 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 
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. Our goal is to ensure that all 
citizens live in clean and sustainable communities. In response to 
Executive Order 12898, and to concerns voiced by many groups outside 
the Agency, EPA's Office of Solid Waste and Emergency Response (OSWER) 
formed an Environmental Justice Task Force to analyze the array of 
environmental justice issues specific to waste programs and to develop 
an overall strategy to identify and address these issues (OSWER 
Directive No. 9200.3-17).
    We have assessed whether today's proposed rule may help mitigate, 
or result in disproportionate effects on minority or low-income 
populations. Due to budgeting and scheduling constraints, we have not 
compiled data correlating individual facility locations with minority/
low income populations. However, our risk assessment did not identify 
risks from the management of dye, pigment, and FD&C production 
wastewaters in onsite tanks or surface impoundments at the generating 
facilities. In fact, based on this assessment, we are not proposing to 
list these wastewaters as hazardous waste. Therefore, we believe that 
any populations in proximity to these manufacturing facilities are not 
adversely affected by common waste management practices for these 
wastewaters. This proposed listing will reduce risks associated with 
managing the targeted nonwastewaters in nonhazardous Subtitle D 
landfills. This may reduce risks for any sensitive populations living 
in proximity to such facilities who rely on ground water for drinking 
water supplies.
    This proposed rule is expected to provide incentives for reducing 
the use of hazardous constituents and may thereby reduce environmental 
risks associated with the facilities generating these wastes. Thus, the 
Agency believes that this rule may help mitigate health risks to 
minority and low income communities living near impacted facilities. 
Furthermore, we have no data indicating that today's proposal would 
result in disproportionately negative impacts on minority or low income 
communities.

I. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not 
an economically significant regulatory action under Executive Order

[[Page 66224]]

12866. Furthermore, it is not expected to have a significant adverse 
impact on the supply, distribution, or use of energy.

J. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law No. 104-113, 12(d) (15 U.S.C. 272 
note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards. This 
proposed rulemaking does not involve the use of any voluntary consensus 
standards.

List of Subjects

40 CFR Part 148

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

40 CFR Part 261

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

40 CFR Part 268

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

40 CFR Part 271

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

40 CFR Part 302

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

    Dated: November 10, 2003.
Michael O. Leavitt,
Administrator.
    For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is proposed to be amended as follows:

PART 148--HAZARDOUS WASTE INJECTION RESTRICTIONS

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

    Authority: Sec. 3004, Resource Conservation and Recovery Act, 42 
U.S.C. 6901, et seq.

    2. Section 148.18 is amended by revising the paragraph (l) and 
adding (m) to read as follows:


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

* * * * *
    (l) Effective [insert date six months after date of publication of 
final rule], the waste specified in 40 CFR 261.32 as EPA Hazardous 
Waste Number K181 is prohibited from underground injection.
    (m) The requirements of paragraphs (a) through (l) of this section 
do not apply:
    (1) If the wastes meet or are treated to meet the applicable 
standards specified in subpart D of 40 CFR part 268; or
    (2) If an exemption from a prohibition has been granted in response 
to a petition under subpart C of this part; or
    (3) During the period of extension of the applicable effective 
date, if an extension has been granted under Sec.  148.4.

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

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

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

    4. Section 261.4 is amended by revising paragraph (b)(15) to read 
as follows.


Sec.  261.4  Exclusions.

* * * * *
    (b) * * *
    (15) Leachate or gas condensate collected from landfills where 
certain solid wastes have been disposed, provided that:
    (i) The solid wastes disposed would meet one or more of the listing 
descriptions for Hazardous Waste Codes K169, K170, K171, K172, K174, 
K175, K176, K177, K178 and K181 if these wastes had been generated 
after the effective date of the listing;
    (ii) The solid wastes described in paragraph (b)(15)(i) of this 
section were disposed prior to the effective date of the listing;
    (iii) The leachate or gas condensate do not exhibit any 
characteristic of hazardous waste nor are derived from any other listed 
hazardous waste;
    (iv) Discharge of the leachate or gas condensate, including 
leachate or gas condensate transferred from the landfill to a POTW by 
truck, rail, or dedicated pipe, is subject to regulation under sections 
307(b) or 402 of the Clean Water Act.
    (v) As of February 13, 2001, leachate or gas condensate derived 
from K169-K172 is no longer exempt if it is stored or managed in a 
surface impoundment prior to discharge. As of November 21, 2003, 
leachate or gas condensate derived from K176, K177, and K178 is no 
longer exempt if it is stored or managed in a surface impoundment prior 
to discharge. After [date 24 months from date of final publication], 
leachate or gas condensate derived from K181 will no longer be exempt 
if it is stored or managed in a surface impoundment prior to discharge. 
There is one exception: if the surface impoundment is used to 
temporarily store leachate or gas condensate in response to an 
emergency situation (e.g., shutdown of wastewater treatment system), 
provided the impoundment has a double liner, and provided the leachate 
or gas condensate is removed from the impoundment and continues to be 
managed in compliance with the conditions of this paragraph after the 
emergency ends.
* * * * *
    5. Section 261.32 is amended by:
    a. Designating the existing text and table as paragraph (a),
    b. In the table by adding a new entry in alphanumeric order (by 
first column) under the heading ``Organic Chemicals'',
    c. Adding paragraphs (b), (c) and (d).
    The revisions and additions read as follows:


Sec.  261.32  Hazardous wastes from specific sources.

    (a) * * *

[[Page 66225]]



------------------------------------------------------------------------
Industry and EPA hazardous
         waste No.              Hazardous waste          Hazard code
------------------------------------------------------------------------
 
                              * * * * * * *
Oganic Chemicals:
 
                              * * * * * * *
    K181..................  Nonwastewaters from     (T)
                             the production of
                             dyes and/or pigments
                             (including
                             nonwastewaters
                             commingled at the
                             point of generation
                             with nonwastewaters
                             from other processes)
                             that, at the point of
                             generation, contain
                             mass loadings of any
                             of the constituents
                             identified in
                             paragraph (c)(1) of
                             this section that are
                             equal to or greater
                             than the
                             corresponding
                             paragraph (c)(1)
                             levels, as determined
                             on a calendar year
                             basis. These wastes
                             would not be
                             hazardous if: (i) The
                             nonwastewaters do not
                             contain annual mass
                             loadings of the
                             constituent
                             identified in
                             paragraph (c)(2) of
                             this section at or
                             above the
                             corresponding
                             paragraph (c)(2)
                             level; and (ii) the
                             nonwastewaters are
                             disposed in a
                             Subtitle D landfill
                             cell subject to the
                             design criteria in
                             Sec.   258.40 or in a
                             Subtitle C landfill
                             cell subject to
                             either Sec.   264.301
                             or Sec.   265.301.
                             For the purposes of
                             this listing, dyes
                             and/or pigments
                             production is defined
                             in paragraph (b)(1)
                             of this section.
                             Paragraph (d) of this
                             section describes the
                             process for
                             demonstrating that a
                             facility's
                             nonwastewaters are
                             not K181. This
                             listing does not
                             apply to wastes that
                             are otherwise
                             identified as
                             hazardous under Sec.
                             Sec.   261.21-24 and
                             261.31-33 at the
                             point of generation.
                             Also, the listing
                             does not apply to
                             wastes generated
                             before any annual
                             mass loading limit is
                             met.
 
                              * * * * * * *
------------------------------------------------------------------------

* * * * *
    (b) Listing Specific Definitions: (1) For the purposes of the K181 
listing, dyes and/or pigments production is defined to include 
manufacture of the following product classes: Dyes, pigments, or FDA 
certified colors that are classified as azo, triarylmethane, perylene 
or anthraquinone classes. Azo products include azo, monoazo, diazo, 
triazo, polyazo, azoic, benzidine, and pyrazolone products. 
Triarylmethane products include both triarylmethane and 
triphenylmethane products.
    (2) [Reserved]
    (c)(1) K181 Listing Levels. Nonwastewaters containing constituents 
in amounts equal to or exceeding the following levels during any 
calendar year are subject to the K181 listing unless the conditions in 
the K181 listing are met:

------------------------------------------------------------------------
                                             Chemical       Mass levels
               Constituent                 abstracts No.      (kg/yr)
------------------------------------------------------------------------
Aniline.................................         62-53-3           9,300
o-Anisidine.............................         90-04-0             110
4-Chloroaniline.........................        106-47-8           4,800
p-Cresidine.............................        120-71-8             660
2,4-Dimethylaniline.....................         95-68-1             100
1,2-Phenylenediamine....................         95-54-5             710
1,3-Phenylenediamine....................        108-45-2           1,200
Toluene-2,4-diamine.....................         95-80-7            0.99
------------------------------------------------------------------------

    (2) K181 Exemption Levels. The K181 listing does not include 
nonwastewaters that, at the point of generation, contain no waste 
constituents meeting or exceeding the following levels during any 
calendar year, and which meet the landfill disposal condition set out 
in the listing description:

------------------------------------------------------------------------
                                             Chemical       Mass levels
               Constituent                 abstracts No.      (kg/yr)
------------------------------------------------------------------------
Toluene-2,4-diamine.....................         95-80-7             140
------------------------------------------------------------------------

    (d) Procedures for demonstrating that dyes and/or pigments 
nonwastewaters are not K181. The following procedures establish when 
nonwastewaters from production of dyes/pigments can be managed as 
nonhazardous.
    (1) Determination based on no K181 constituents. Generators that 
have knowledge (e.g., knowledge of constituents in wastes based on 
prior sampling and analysis data and/or information about raw materials 
used, production processes used, and reaction and degradation products 
formed) that their wastes contain none of the K181 constituents (see 
paragraph (c) of this section) can use their knowledge to determine 
that their waste is not K181. The generator must document the basis for 
all such determinations on an annual basis and keep each annual 
documentation for three years.
    (2) Determination for generated quantities less than 1,000 MT/yr. 
for wastes that contain K181 constituents. If the total annual quantity 
of dyes and/or pigments nonwastewaters generated is 1,000 metric tons 
or less, the generator can use knowledge of the wastes (e.g., knowledge 
of constituents in wastes based on prior analytical data and/or 
information about raw materials used, production processes used, and 
reaction and degradation products formed) to conclude that annual mass 
loadings for the K181 constituents are below either the paragraph 
(c)(1) or (c)(2) listing levels of this section. To make this 
determination, the generator must:

[[Page 66226]]

    (i) Each year document the basis for determining that the annual 
quantity of nonwastewaters expected to be generated will be less than 
1,000 metric tons.
    (ii) Track the actual quantity of nonwastewaters generated from 
January 1 through December 31 of each year. If, at any time within the 
year, the actual waste quantity exceeds 1,000 metric tons, the 
generator must comply with the requirements of paragraph (d)(3) of this 
section for the remainder of the year.
    (iii) Keep a running total of the K181 constituent mass loadings 
over the course of the calendar year.
    (iv) Keep the following records onsite for three years:
    (A) The quantity of dyes and/or pigments nonwastewaters generated.
    (B) The relevant process information used.
    (C) The calculations performed to determine annual total mass 
loadings for each K181 constituent in the nonwastewaters during the 
year.
    (3) Determination for generated quantities greater than 1,000 MT/
yr. for wastes that contain K181 constituents:
    (i) Determine which K181 constituents (see paragraph (c) of this 
section) are reasonably expected to be present in the wastes based on 
knowledge of the wastes (e.g., based on prior sampling and analysis 
data and/or information about raw materials used, production processes 
used, and reaction and degradation products formed).
    (ii) Develop a waste sampling and analysis plan (or modify an 
existing plan) to collect and analyze representative waste samples for 
the K181 constituents reasonably expected to be present in the wastes. 
At a minimum, the plan must include:
    (A) A discussion of the number of samples needed to characterize 
the wastes fully;
    (B) The planned sample collection method to obtain representative 
waste samples;
    (C) A discussion of how the sampling plan accounts for potential 
temporal and spatial variability of the wastes.
    (D) A detailed description of the test methods to be used, 
including sample preparation, clean-up (if necessary), and 
determinative methods.
    (iii) Collect and analyze samples in accordance with the waste 
sampling and analysis plan.
    (A) The sampling and analysis must be unbiased, precise, and 
representative of the wastes.
    (B) The analytical measurements must be sufficiently sensitive, 
accurate and precise to support any claim that the constituent mass 
loadings are below the paragraph (c) listing levels of this section.
    (iv) Record the analytical results.
    (v) Record the waste quantity represented by the sampling and 
analysis results.
    (vi) Calculate constituent-specific mass loadings (product of 
concentrations and waste quantity).
    (vii) Keep a running total of the K181 constituent mass loadings 
over the course of the calendar year.
    (viii) Determine whether the mass of any of the K181 constituents 
listed in either paragraph (c)(1) or (c)(2) of this section generated 
between January 1 and December 31 of any year is below the K181 listing 
levels.
    (ix) Keep the following records onsite for three years:
    (A) The sampling and analysis plan.
    (B) The sampling and analysis results (including QA/QC data)
    (C) The quantity of dyes and/or pigment nonwastewaters generated.
    (D) The calculations performed to determine annual mass loadings.
    (x) Nonhazardous waste determinations must be conducted annually to 
verify that the wastes remain nonhazardous.
    (A) The annual testing requirements are suspended after three 
consecutive successful annual demonstrations that the wastes are 
nonhazardous. The generator can then use knowledge of the wastes to 
support subsequent annual determinations.
    (B) The annual testing requirements are reinstated if the 
manufacturing or waste treatment processes generating the wastes are 
significantly altered, resulting in an increase of the potential for 
the wastes to exceed the listing levels.
    (C) If the annual testing requirements are suspended, the generator 
must keep records of the process knowledge information used to support 
a nonhazardous determination. If testing is reinstated, a description 
of the process change must be retained.
    (4) Recordkeeping for (c)(2) exemption. For the purposes of meeting 
the landfill disposal condition set out in the K181 listing 
description, the generator must maintain onsite for three years 
documentation demonstrating that each shipment of waste was received by 
a landfill cell subject to the landfill design standards set out in the 
listing description.
    (5) Waste holding and handling. During the interim period, from the 
point of generation to completion of hazardous waste determination, the 
generator is responsible for storing the wastes appropriately. If the 
wastes are determined to be hazardous and the generator has not 
complied with the subtitle C requirements during the interim period, 
the generator would be subject to an enforcement action for improper 
management.
    6. Appendix VII to part 261 is amended by adding the following 
entry in alphanumeric order (by the first column) to read as follows.

       Appendix VII to Part 261--Basis for Listing Hazardous Waste
------------------------------------------------------------------------
                                     Hazardous constituents for which
     EPA hazardous waste No.                      listed
------------------------------------------------------------------------
 
                              * * * * * * *
K181............................  Aniline, o-anisidine, 4-chloroaniline,
                                   p-cresidine, 2,4- dimethylaniline,
                                   1,2-phenylenediamine, 1,3-
                                   phenylenediamine, toluene-2,4-
                                   diamine.
 
                              * * * * * * *
------------------------------------------------------------------------

* * * * *

Appendix VIII to Part 261--Hazardous Constituents

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

[[Page 66227]]



----------------------------------------------------------------------------------------------------------------
                                                                        Chemical
              Common name                  Chemical abstracts name    abstracts No.      Hazardous waste No.
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
o-Anisidine (o-Aminoanisole)...........  Benzenamine, 2-Methoxy-...         90-04-0
 
                                                  * * * * * * *
p-Cresidine............................  2-Methoxy-5-                      120-71-8
                                          methylbenzenamine.
 
                                                  * * * * * * *
2,4-Dimethylaniline (2,4-xylidine).....  Benzenamine, 2,4-dimethyl-         95-68-1
 
                                                  * * * * * * *
1,2-...................................  1,2-Phenylenediamine               95-54-5
                                          Benzenediamine.
 
                                                  * * * * * * *
1,3-...................................  1,3-Phenylenediamine              108-45-2
                                          Benzenediamine.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

PART 268--LAND DISPOSAL RESTRICTIONS

    8. The authority citation for part 268 continues to read as 
follows:

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

Subpart C--Prohibitions on Land Disposal

    9. Subpart C is amended by adding Sec.  268.20 and adding and 
reserving Sec. Sec.  268.21 through 268.29 to read as follows:


Sec.  268.20  Waste specific prohibitions--Dyes and/or pigments 
production wastes.

    (a) Effective [date six months from date of publication of final 
rule], the waste specified in 40 CFR Part 261 as EPA Hazardous Waste 
Number K181, and soil and debris contaminated with this waste, 
radioactive wastes mixed with this wastes, and soil and debris 
contaminated with radioactive wastes mixed with this waste are 
prohibited from land disposal.
    (b) The requirements of paragraph (a) of this section do not apply 
if:
    (1) The wastes meet the applicable treatment standards specified in 
Subpart D of this Part;
    (2) Persons have been granted an exemption from a prohibition 
pursuant to a petition under Sec.  268.6, with respect to those wastes 
and units covered by the petition;
    (3) The wastes meet the applicable treatment standards established 
pursuant to a petition granted under Sec.  268.44;
    (4) Hazardous debris has met the treatment standards in Sec.  
268.40 or the alternative treatment standards in Sec.  268.45; or
    (5) Persons have been granted an extension to the effective date of 
a prohibition pursuant to Sec.  268.5, with respect to these wastes 
covered by the extension.
    (c) To determine whether a hazardous waste identified in this 
section exceeds the applicable treatment standards specified in Sec.  
268.40, the initial generator must test a sample of the waste extract 
or the entire waste, depending on whether the treatment standards are 
expressed as concentrations in the waste extract or the waste, or the 
generator may use knowledge of the waste. If the waste contains 
regulated constituents in excess of the applicable Subpart D levels, 
the waste is prohibited from land disposal, and all requirements of 
Part 268 are applicable, except as otherwise specified.
    10. In Sec.  268.40, the Table of Treatment Standards is amended by 
revising the entry for F039 to add constituents in alphabetical 
sequence, and by adding in alphanumeric order the new entry for K181 to 
read as follows:


Sec.  268.40  Applicability of treatment standards.

* * * * *

[[Page 66228]]



                                                        Treatment Standards for Hazardous Wastes
                                                             [Note: NA means not applicable]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           Regulated hazardous constituent                                 Nonwastewaters--concentration
                               Waste description and  ---------------------------------------- Wastewaters--concentration   in mg/kg \5\ unless noted as
         Waste code             treatment/regulatory                                           in mg/L \3\, or technology   ``mg/L TCLP'', or technology
                                  subcategory \1\            Common name         CAS \2\ No.            code \4\                        code
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
F039........................  Leachate (liquids that   * * *
                               have percolated         o-Anisidine (2-                90-04-0                 0.010                          0.66
                               through land disposed    methoxyaniline).       ..............  ..........................  .............................
                               wastes) resulting from  * * *.................        120-71-8                 0.010                          0.66
                               the disposal of more    p-Cresidine...........  ..............  ..........................  .............................
                               than one restricted     * * *.................         95-68-1                 0.010                          0.66
                               waste classified as     2,4-Dimethylaniline     ..............  ..........................  .............................
                               hazardous under          (2,4-xylidine).              108-45-2                 0.010                          0.66
                               Subpart D of this       * * *.................  ..............  ..........................  .............................
                               part. (Leachate         1,3-Phenylenediamine..         95-80-7                 0.020                          1.30
                               resulting from the      * * *.................
                               disposal of one or      Toluene-2,4-diamine...
                               more of the following   * * *.................
                               EPA Hazardous Wastes
                               and no other Hazardous
                               Waste retains its EPA
                               Hazardous Waste
                               Number(s): F020, F021,
                               F022, F026, F027, and/
                               or F028).
 
                                                                      * * * * * * *
K181........................  Nonwastewaters from the  Aniline...............         65-53-3                  0.81                            14
                               production of dyes and/ o-Anisidine (2-                90-04-0                 0.010                          0.66
                               or pigments (including   methoxyaniline).             106-47-8                  0.46                            16
                               nonwastewaters          4-Chloroaniline.......        120-71-8                 0.010                          0.66
                               commingled at the       p-Cresidine...........         95-68-1                 0.010                          0.66
                               point of generation     2,4-Dimethylaniline            95-54-5                 \(6)\                         \(7)\
                               with nonwastewaters      (2,4xylidine).               108-45-2                 0.010                          0.66
                               from other processes)   1,2-Phenylenediamine..         95-80-7                 0.020                          7.30
                               that, at the point of   1,3-Phenylenediamine..
                               generation, contain     Toluene-2,4-diamine...
                               mass loadings of any
                               of the constituents
                               identified in
                               paragraph (c)(1) of
                               this section that are
                               equal to or greater
                               than the corresponding
                               paragraph (c)(1)
                               levels, as determined
                               on a calendar year
                               basis.
 
                                                                     * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Footnotes to Treatment Standard Table 268.40:
\1\ The waste descriptions provided in this table do not replace waste descriptions in 40 CFR part 261. Descriptions of Treatment/Regulatory
  Subcategories are provided, as needed, to distinguish between applicability of different standards.
\2\ CAS means Chemical Abstract Services. When the waste code and/or regulated constituents are described as a combination of a chemical with its salts
  and/or esters, the CAS number is given for the parent compound only.
\3\ Concentration standards for wastewaters are expressed in mg/L and are based on analysis of composite samples.
\4\ All treatment standards expressed as a Technology Code or combination of Technology Codes are explained in detail in 40 CFR 268.42 Table 1--
  Technology Codes and Descriptions of Technology-Based Standards.
\5\ Except for Metals (EP or TCLP) and Cyanides (Total and Amenable) the nonwastewater treatment standards expressed as a concentration were
  established, in part, based upon incineration in units operated in accordance with the technical requirements of 40 CFR part 264, subpart O or 40 CFR
  part 265, subpart O, or based upon combustion in fuel substitution units operating in accordance with applicable technical requirements. A facility
  may comply with these treatment standards according to provisions in 40 CFR 268.40(d). All concentration standards for nonwastewaters are based on
  analysis of grab samples.
\6\ CMBST; or CHOXD fb (BIODG or CARBN); or BIODG fb CARBN.
\7\ CMBST.

* * * * *
    11. The Table--Universal Treatment Standards in Sec.  268.48 is 
revised by adding in alphabetical sequence the following entries under 
the heading organic constituents:


Sec.  268.48  Universal treatment standards.

    (a) * * *

[[Page 66229]]



                                          Universal Treatment Standards
                                         [Note: NA means not applicable]
----------------------------------------------------------------------------------------------------------------
                                                                                         Nonwastewater standard--
                                                                 Wastewater standard--    concentration in mg/kg
       Regulated constituent common name          CAS \1\ No.    concentration in mg/L     \3\ unless noted as
                                                                          \2\                 ``mg/L TCLP''
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
o-Anisidine (2-methoxyaniline)................         90-04-0                0.010                     0.66
 
                                                  * * * * * * *
p-Cresidine...................................        120-71-8                0.010                     0.66
 
                                                  * * * * * * *
2,4-Dimethylaniline (2,4-xylidine)............         95-68-1                0.010                     0.66
 
                                                  * * * * * * *
1,3-Phenylenediamine..........................        108-45-2                0.010                     0.66
 
                                                  * * * * * * *
Toluene-2,4-diamine...........................         95-80-7                0.020                     1.30
 
                                                 * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ CAS means Chemical Abstract Services. When the waste code and/or regulated constituents are described as a
  combination of a chemical with its salts and/or esters, the CAS number is given for the parent compound only.
\2\ Concentration standards for wastewaters are expressed in mg/L and are based on analysis of composite
  samples.
\3\ Except for Metals (EP or TCLP) and Cyanides (Total and Amenable) the nonwastewater treatment standards
  expressed as a concentration were established, in part, based upon incineration in units operated in
  accordance with the technical requirements of 40 CFR part 264, subpart O, or part 265, subpart O, or based
  upon combustion in fuel substitution units operating in accordance with applicable technical requirements. A
  facility may comply with these treatment standards according to provisions in 40 CFR 268.40(d). All
  concentration standards for nonwastewaters are based on analysis of grab samples.

* * * * *

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

    12. The authority citation for part 271 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), and 6926.

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


Sec.  271.1  Purpose and scope.

* * * * *
    (j) * * *

               Table 1.--Regulations Implementing the Hazardous and Solid Waste Amendments of 1984
----------------------------------------------------------------------------------------------------------------
                                                                    Federal Register
          Promulgation date              Title of regulation           reference              Effective date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
[insert date of signature of final     Listing of Hazardous     [insert Federal          [insert effective date
 rule].                                 Waste K181.              Register page numbers    of final rule]
                                                                 for final rule].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


                  Table 2.--Self-Implementing Provisions of the Solid Waste Amendments of 1984
----------------------------------------------------------------------------------------------------------------
                                          Self-implementing                                  Federal Register
            Effective date                    provision              RCRA citation              reference
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
[Insert effective date of final        Prohibition on land      3004(g)(4)(C) and        [Insert date of
 rule]..                                disposal of K181         3004(m)                  publication date of
                                        waste, and prohibition                            final rule Federal
                                        on land disposal of                               Register page numbers]
                                        radioactive waste                                 [FR page numbers].
                                        mixed with K181
                                        wastes, including soil
                                        and debris
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


[[Page 66230]]

PART 302--DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION

    14. The authority citation for part 302 continues to read as 
follows:

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

    15. In Sec.  302.4, Table 302.4 is amended by adding the following 
new entry in alphanumeric order at the end of the table to read as 
follows:


Sec.  302.4  Designation of hazardous substances.

* * * * *

                      Table 302.4.--List of Hazardous Substances and Reportable Quantities
                         [Note: All comments/notes are located at the end of this table]
----------------------------------------------------------------------------------------------------------------
                                                     Statutory
       Hazardous substance             CASRN       code[dagger]       RCRA waste No.       Final RQ pounds (Kg)
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
K181............................  ..............               4  K181..................  ()
Nonwastewaters from the
 production of dyes and/or
 pigments (including
 nonwastewaters commingled at
 the point of generation with
 nonwastewaters from other
 processes) that, at the point
 of generation, contain mass
 loadings of any of the
 constituents identified in
 paragraph (c)(1) of this
 section that are equal to or
 greater than the corresponding
 paragraph (c)(1) levels, as
 determined on a calendar year
 basis.
----------------------------------------------------------------------------------------------------------------
[dagger]--Indicates the statutory source defined by 1, 2, 3, and 4, as described in the note preceding Table
  302.4.
* * * * * * *
---The Agency may adjust the statutory RQ for this hazardous substance in a future rulemaking;
  until then, the statutory RQ applies.

* * * * *
[FR Doc. 03-28783 Filed 11-24-03; 8:45 am]
BILLING CODE 6560-50-P