Rule: Air Quality Implementation Plans Approval and Promulgation Various States: Nonwastewaters From Productions of Dyes, Pigments, and Food, Drug, and Cosmetic Colorants Mass Loadings-Based Listing

Thursday,
February 24, 2005
Part II
Environmental
Protection Agency
40 CFR Parts 148, 261, et al.
Hazardous Waste—Nonwastewaters From
Productions of Dyes, Pigments, and Food,
Drug, and Cosmetic Colorants; Mass
Loadings-Based Listing; Final Rule
VerDate jul<14>2003 18:48 Feb 23, 2005 Jkt 205001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\24FER2.SGM 24FER2
9138 Federal Register / Vol. 70, No. 36 / Thursday, February 24, 2005 / Rules and Regulations
ENVIRONMENTAL PROTECTION wastes, unless the wastes are either This Docket Facility is open from 8:30
AGENCY disposed in a landfill unit that meets a.m.–4:30 p.m., Monday through Friday,
certain liner design criteria, or treated in excluding legal holidays.
40 CFR Parts 148, 261, 268, 271, and a combustion unit as specified in the FOR FURTHER INFORMATION CONTACT: For
302 listing description. This rule also adds general information, review our website
[RCRA–2003–0001; FRL–7875–8] five toxic constituents to the list of at http://www.epa.gov/epaoswer/
hazardous constituents that serves as hazwaste/id/dyes/index.htm. For
RIN 2050–AD80 the basis for classifying wastes as information on specific aspects of the
hazardous. In addition, this rule rule, contact Robert Kayser, Hazardous
Hazardous Waste Management
establishes Land Disposal Restrictions Waste Identification Division, Office of
System; Identification and Listing of
(LDR) treatment standards for the Solid Waste (5304W), Environmental
Hazardous Waste; Dyes and/or
wastes, and designates these wastes as Protection Agency, 1200 Pennsylvania
Pigments Production Wastes; Land
hazardous substances subject to the Avenue, NW., Washington, DC 20460;
Disposal Restrictions for Newly
Comprehensive Environmental telephone number: (703) 308–7304; fax
Identified Wastes; CERCLA Hazardous
Response, Compensation, and Liability number: (703) 308–0514; e-mail address:
Substance Designation and Reportable
Act (CERCLA). This rule does not adjust kayser.robert@epa.gov. For technical
Quantities; Designation of Five
Chemicals as Appendix VIII the one pound statutory reportable information on the CERCLA aspects of
Constituents; Addition of Four quantity (RQ) for the waste. this rule, contact Ms. Lynn Beasley,
Chemicals to the Treatment Standards DATES: This final rule is effective on Office of Emergency Prevention,
of F039 and the Universal Treatment August 23, 2005. Preparedness, and Response, Emergency
Standards ADDRESSES: EPA has established a Response Center (5204G), U.S.
docket for this action under Docket ID Environmental Protection Agency, 1200
AGENCY: Environmental Protection Pennsylvania Avenue, NW.,
Agency (EPA). No. RCRA–2003–0001. All documents
in the docket are listed in the EDOCKET Washington, DC 20460; telephone
ACTION: Final rule. number: (703) 603–9086; e-mail address:
index at http://www.epa.gov/edocket.
SUMMARY: The Environmental Protection Although listed in the index, some beasley.lynn@epa.gov.
Agency (EPA) is today listing as information may not be publicly SUPPLEMENTARY INFORMATION:
hazardous nonwastewaters generated available, e.g., Confidential Business
Readable Regulations
from the production of certain dyes, Information (CBI) or other information
pigments, and FD&C colorants. EPA is whose disclosure is restricted by statute. Today’s preamble and regulations are
promulgating this regulation under the Certain other material, such as written in ‘‘readable regulations’’
Resource Conservation and Recovery copyrighted material, is not placed on format. The authors tried to use active
Act (RCRA), which directs EPA to the Internet and will be publicly rather than passive voice, plain
determine whether these wastes pose a available only in hard copy form. language, a question-and-answer format,
substantial present or potential hazard Publicly available docket materials are the pronouns ‘‘we’’ for EPA and ‘‘you’’
to human health or the environment available either electronically in for the owner/generator, and other
when they are improperly treated, EDOCKET or in hard copy at the RCRA techniques to make the information in
stored, transported, disposed of or Docket, EPA/DC, EPA West, Room today’s rule easier to read and
otherwise managed. This listing sets B102, 1301 Constitution Ave., NW, understand. This format is part of our
annual mass loadings for constituents of Washington, DC. The Public Reading efforts toward regulatory improvement.
concern, such that wastes would not be Room is open from 8:30 a.m. to 4:30 We believe this format helps readers
hazardous if the constituents are below p.m., Monday through Friday, excluding understand the regulations, which
the regulatory thresholds. If the wastes legal holidays. The telephone number should then increase compliance, make
meet or exceed the regulatory levels for for the Public Reading Room is (202) enforcement easier, and foster better
any constituents of concern, the wastes 566–1744, and the telephone number for relationships between EPA and the
must be managed as listed hazardous the RCRA Docket is (202) 566–0270. regulated community.
ACRONYMS USED IN THE RULE

Acronym Definition
BDAT ................. Best Demonstrated Available Technology.

BIODG ............... Biodegradation.
CAA ................... Clean Air Act.
CARBN .............. Carbon absorption.
CAS ................... Chemical Abstract Services.
CBI ..................... Confidential Business Information.
CCL ................... Compacted clay liner.
CERCLA ............ Comprehensive Environmental Response Compensation and Liability Act.
CFR ................... Code of Federal Regulations.
CHOXD .............. Chemical or electrolytic oxidation.
CMBST .............. Combustion.
CoC ................... Constituent of concern.
CI ....................... Colour Index.
CPMA ................ Color Pigments Manufacturers Association.
CWA .................. Clean Water Act.
CWTP ................ Centralized wastewater treatment plant.
ED ...................... Environmental Defense (previously the Environmental Defense Fund or EDF).
E.O. ................... Executive Order.
EP ...................... Extraction Procedure.
Federal Register / Vol. 70, No. 36 / Thursday, February 24, 2005 / Rules and Regulations 9139
ACRONYMS USED IN THE RULE—Continued

Acronym Definition
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.
GCL ................... Geosynthetic clay liner.
GC/MS ............... Gas Chromatography/Mass Spectroscopy.
GM ..................... Geomembrane.
GSCM ................ General Soil Column Model.
HELP ................. Hydrologic Evaluation of Landfill Performance.
HGDB ................ Hydrogeologic Database.
HPLC ................. High Performance Liquid Chromatography.
HQ ..................... Hazard Quotient.
HSWA ................ Hazardous and Solid Waste Amendments.
ICR .................... Information Collection Request.
kg/yr ................... Kilogram/year.
LDR ................... Land Disposal Restriction.
mg/kg ................. Milligram per kilogram.
mg/L ................... Milligram per liter.
MSW .................. Municipal Solid Waste.
MT ..................... Metric ton.
NAICS ................ North American Industrial Classification System.
OMB .................. Office of Management and Budget.
OSW .................. Office of Solid Waste.
OSWER ............. Office of Solid Waste and Emergency Response.
POTW ................ Publicly owned treatment works.
ppm .................... Parts per million.
PRA ................... Paperwork Reduction Act.
QA ..................... Quality Assurance.
QC ..................... Quality Control.
RCRA ................ Resource Conservation and Recovery Act.
RFA ................... Regulatory Flexibility Act.
RFSA ................. Regulatory Flexibility Screening Analysis.
RQ ..................... Reportable Quantity.
SAB ................... Science Advisory Board.
SBA ................... Small Business Administration.
SBREFA ............ Small Business Regulatory Enforcement Fairness Act.
SIC ..................... Standard Industry Code.
SW–846 ............. Test Methods for Evaluating Solid Wastes.
TRI ..................... Toxic Release Inventory.
UCLM ................ Upper confidence limit of the mean.
UMRA ................ Unfunded Mandates Reform Act.
U.S.C. ................ United States Code.
UTS ................... Universal Treatment Standard.
WETOX ............. Wet air oxidation.
Contents of This Final Rule D. What Was the Proposed Status of 8. Risk Assessment
Landfill Leachate From Previously 9. Implementation
I. Overview Disposed Wastes? 10.Exemption for Non-Municipal Landfills
A. Who Will Be Affected by This Final E. What Were the Proposed Treatment B. Final ‘‘No List’’ Determination for
Rule? Standards Under RCRA’s Land Disposal Wastewaters
B. What Are the Statutory Authorities for Restrictions Standards? C. What Is the Status of Landfill Leachate
This Final Rule? F. What Risk Assessment Approach Was Derived From Newly-Listed K181
C. How Does the ED v. Johnson Consent Used for the Proposed Rule? Wastes?
Decree Impact This Final Rule? IV. What Is the Rationale for Today’s Final D. What Are the Final Treatment Standards
II. Summary of Today’s Action Rule? Under RCRA’s Land Disposal
III. Summary of Proposed Rule A. Final Listing Determination Restrictions for the Newly-Listed
1. Toluene-2,4-diamine Hazardous Wastes?
A. What Wastes Did EPA Propose To List
2. Use of Clay-Lined and Composite-Lined 1. What Are EPA’s Land Disposal
as Hazardous?
Landfills Restrictions (LDRs)?
B. How Was This Proposal Different From 3. Status of Wastes That Are Combusted 2. How Does EPA Develop LDR Treatment
Prior Hazardous Waste Listing 4. Scope of Listing Definition Standards?
Determinations? 5. Waste Quantities 3. What Are the Treatment Standards for
C. Which Constituents Did EPA Propose To 6. Prevalence of Constituents of Concern K181?
Add to Appendix VIII of 40 CFR Part 7. Availability of Analytical Methods for E. Is There Treatment Capacity for the
261? Constituents of Concern Newly Listed Wastes?
1. Introduction C. Regulatory Flexibility Act concern, may be indirectly impacted.

2. What Are the Capacity Analysis Results D. Unfunded Mandates Reform Act This is because we are adding new
for K181? E. Executive Order 13132: Federalism treatment standards for four chemicals,
V. When Must Regulated Entities Comply F. Executive Order 13175: Consultation
With the Provisions in Today’s Final and Coordination With Indian Tribal
and we are adding five new constituents
Rule? Governments to the list of hazardous constituents on
A. Effective Date G. Executive Order 13045: Protection of Appendix VIII of part 261. Thus, these
B. Section 3010 Notification Children From Environmental Health actions may result in indirect impacts
C. Generators and Transporters and Safety Risks on these manufacturers. In addition,
D. Facilities Subject to Permitting H. Executive Order 12898: Environmental landfill owners/operators who
1. Facilities Newly Subject to RCRA Permit Justice
Requirements previously accepted these wastes may
I. Executive Order 13211: Actions Affecting
2. Existing Interim Status Facilities be indirectly impacted. This action may
Energy Supply, Distribution, or Use
3. Permitted Facilities J. National Technology Transfer and also affect entities that need to respond
4. Units Advancement Act to releases of these wastes as CERCLA
5. Closure K. The Congressional Review Act (5 U.S.C. hazardous substances. Impacts on
VI. State Authority and Compliance 801 et seq., as Added by the Small potentially affected entities, direct and
A. How Are States Authorized Under Business Regulatory Enforcement
RCRA?
indirect, are summarized in section VIII
Fairness Act of 1996) of this Preamble. The document,
B. How Does This Rule Affect State
Authorization? I. Overview ‘‘Economic Assessment for the Proposed
VII. CERCLA Designation and Reportable Loadings-Based Listing of Non-
Quantities A. Who Will Be Affected by This Final Wastewaters from the Production of
A. How Does EPA Determine Reportable Rule? Selected Organic Dyes, Pigments, and
Quantities?
Today’s final action will affect those Food, Drug, and Cosmetic Colorants,’’
B. What Is the RQ for the K181 Waste?
C. When Would I Need To Report a Release who handle the wastes that we are November 2003 (hereafter known as the
of These Wastes Under CERCLA? adding to EPA’s list of hazardous wastes Economic Assessment Document)
D. How Would I Report a Release? under the RCRA program. This presents a comprehensive analysis of
VIII. Statutory and Executive Order Reviews regulation could directly impact potentially impacted entities. Further
A. Executive Order 12866: Regulatory businesses that generate and manage updated analysis is also presented in the
Planning and Review ‘‘Revised Impacts Assessment.’’ 1 These
1. Summary of Proposed Rule Findings:
certain organic dyes and/or pigment
Costs, Economic Impacts, Benefits production wastes. In addition, documents are available in the docket
2. Public Comments and Agency Responses manufacturers that do not make dyes or for today’s rule. A summary of
3. Revised Findings pigments, but that generate wastes potentially affected businesses is
B. Paperwork Reduction Act containing selected constituents of provided in the table below.
TABLE 1.—SUMMARY OF FACILITIES POTENTIALLY AFFECTED BY THE U.S. EPA’S 2005 DYES AND/OR PIGMENTS
MANUFACTURING WASTE LISTING FINAL RULE
Estimated number of
SIC code NAICS code Industry sector name relevant facilities*
Directly Impacted:
2865 .............................. 325132–1 ........................... Synthetic Organic Dyes ................................................. 31.
325132–4 ........................... Synthetic Organic Pigments, Lakes, and Toners.
Indirectly Impacted:
2800 (except 2865) ...... 325 (except 325132) ......... Chemical Manufacturing ................................................ Less than 50 facilities
total.**
4953 .............................. 562212 ............................... Solid Waste Landfills and Disposal Sites, Nonhaz-
ardous.
5169 .............................. 42269 ................................. Other Chemicals and Allied Products (wholesale).
SIC—Standard Industrial Classification.
NAICS—North American Industry Classification System.
*Note: The figures in this column represent individual facilities, not companies. A total of 22 companies are expected to be impacted under this
NAICS.
**Estimate based on 13 expanded scope facilities plus no more than 37 separate solid waste landfills (562212) potentially receiving wastes of
concern.
The list of potentially affected entities action, you should examine 40 CFR B. What Are the Statutory Authorities
in the above table may not be parts 260 and 261 carefully in concert for This Final Rule?
exhaustive. Our aim is to provide a with the final rules amending these
guide for readers regarding entities regulations that are found at the end of Today’s hazardous waste regulations
likely to be regulated by this action. this Federal Register document. If you are promulgated under the authority of
This table lists those entities that we are have questions regarding the Sections 2002(a), 3001(b), 3001(e)(2),
aware of that potentially could be applicability of this action to a 3004(d)–(m) and 3007(a) of the Solid
affected by this action. However, this particular entity, consult the person Waste Disposal Act, 42 U.S.C. 6912(a),
action may affect other entities not listed in the preceding section entitled 6921(b) and (e)(2), 6924(d)–(m) and
listed in the table. To determine FOR FURTHER INFORMATION CONTACT. 6927(a), as amended several times, most
whether your facility is regulated by this importantly by the Hazardous and Solid
1 Memorandum from Lyn D. Luben to the RCRA
Docket, July 21, 2004.
Waste Amendments of 1984 (HSWA). generated by the dyes and/or pigments the manufacture of dyes and/or
These statutes commonly are referred to manufacturing industries to the list of pigments warranted listing. We
as the Resource Conservation and hazardous waste in 40 CFR 261.32: evaluated the risks potentially posed by
Recovery Act (RCRA), are codified at K181—Nonwastewaters from the these residuals using quantitative risk
Volume 42 of the United States Code production of dyes and/or pigments assessment techniques.
(U.S.C.), Sections 6901 to 6992(k) (42 (including nonwastewaters commingled at After assessing public comments
U.S.C. 6901–6992(k)). the point of generation with nonwastewaters submitted in response to our proposal,
Section 102(a) of the Comprehensive from other processes) that, at the point of we are finalizing the K181 hazardous
Environmental Response, generation, contain mass loadings of any of waste listing, with several
Compensation, and Liability Act of 1980 the constituents identified in paragraph (c) of
this section that are equal to or greater than
modifications. The final rule continues
(CERCLA), 42 U.S.C. 9602(a) is the to establish mass-loading limits for
the corresponding paragraph (c) levels, as
authority under which the CERCLA determined on a calendar year basis. These seven of the eight proposed constituents
aspects of this rule are promulgated. wastes will not be hazardous if the of concern (CoCs), and continues to
C. How Does the ED v. Johnson Consent nonwastewaters are: (i) Disposed in a subtitle allow for the contingent exemption of
D landfill unit subject to the design criteria wastes that meet or exceed these limits
Decree Impact This Final Rule? in § 258.40, (ii) disposed in a subtitle C but that are managed in landfill units
HSWA established deadlines for landfill unit subject to either § 264.301 or that are subject to the design criteria of
completion of a number of listing § 265.301, (iii) disposed in other subtitle D
either § 258.40, § 264.301, or § 265.301.
determinations, including for dyes and landfill units that meet the design criteria in
§ 258.40, § 264.301, or § 265.301, or (iv) We revised the exemption to also
pigment production wastes (see RCRA include wastes that are disposed in
section 3001(e)(2)). Due to competing treated in a combustion unit that is permitted
under subtitle C, or an onsite combustion other non-municipal landfills
demands for Agency resources and unit that is permitted under the Clean Air (industrial landfills) that meet the liner
shifting priorities, these deadlines were Act. For the purposes of this listing, dyes design requirements in § 258.40,
not met. As a result, in 1989, the and/or pigments production is defined in § 264.301 or § 265.301. We also added
Environmental Defense Fund (EDF, paragraph (b)(1) of this section. Paragraph (d) an exemption for wastes that are treated
currently Environmental Defense or ED) of this section describes the process for in combustion units that are either
filed a lawsuit to enforce the statutory demonstrating that a facility’s
permitted under subtitle C, or that are
deadlines for listing decisions in RCRA nonwastewaters are not K181. This listing
does not apply to wastes that are otherwise onsite units permitted under the Clean
section 3001(e)(2). (Environmental Air Act (CAA). We are not, however,
Defense v. Johnson, D.D.C. Civ. No. 89– identified as hazardous under §§ 261.21–
261.24 and 261.31–261.33 at the point of finalizing the proposed mass-loading
0598, subsequently referred to in this generation. Also, the listing does not apply levels for toluene-2,4-diamine; neither
notice as the ED consent decree.) To to wastes generated before any annual mass are we adding this constituent to
resolve most of the issues in the case, in loading limit is met. Appendix VII of part 261 or to part
1991 ED and EPA entered into a consent 268.20 or 268.40 of the Land Disposal
This listing provides a flexible approach
decree which has been amended several Restriction (LDR) standards.
that focuses the regulation on wastes
times to revise the deadlines for EPA
that present a risk to human health and Upon the effective date of today’s
action. Paragraph 1.h.(i) (as amended in
the environment. All quantities of final rule, wastes meeting the K181
December 2002) of the consent decree
wastes generated during a calendar year listing description will become
addresses the organic dyes and pigment
up to the mass loading limits are not hazardous wastes and must be managed
production industries:
listed hazardous waste. Only wastes in accordance with RCRA subtitle C
EPA shall promulgate final listing subsequently generated that meet or requirements, unless the wastes are to
determinations for azo/benzidine, exceed the annual limits would be managed in a manner that complies
anthraquinone, and triarylmethane dye and with the contingent management
potentially become hazardous waste.
pigment production wastes on or before
February 16, 2005* * * These listing However, the listing includes a exemptions contained in the listing
determinations shall be proposed for public conditional exemption for wastes that description. Residuals from the
comment on or before November 10, 2003. are disposed of in a subtitle D or subtitle treatment, storage, or disposal of this
C landfill unit that meet the design newly listed hazardous waste also will
Furthermore, paragraph 6.e. (as amended)
stipulates that: standards specified in the listing be classified as hazardous waste
description and for wastes treated in pursuant to the ‘‘derived-from’’ rule (40
On or before November 10, 2003, EPA’s certain combustion units with the CFR 261.3(c)(2)(i)). Also, any mixture of
Administrator shall sign a notice of proposed a listed hazardous waste and a solid
specified permits. Therefore, wastes that
rulemaking proposing land disposal
restrictions for dye and pigment wastes are below the mass loading limits, or waste is itself a RCRA hazardous waste
proposed for listing under paragraph 1.h.(i). wastes that meet the conditional (40 CFR 261.3(a)(2)(iii) and (iv), ‘‘the
EPA shall promulgate a final rule exemption as described in the mixture rule’’). We are not promulgating
establishing land disposal restrictions for dye regulation, are excluded from the listing any exemption for treatment residuals
and pigment wastes listed under paragraph from their point of generation, and from the derived-from rule for the
1.h.(i) on the same date that it promulgates would not be subject to any RCRA reasons set out in the proposed rule (68
a final listing determination for such wastes. subtitle C management requirements for FR 66199). The mass-based approach
Today’s final rule satisfies EPA’s duty generation, storage, transport, treatment, already builds in an exemption for
under paragraphs 1.h and 6.e of the ED or disposal (including the land disposal wastes that are generated with
consent decree to finalize listing restrictions). constituent masses below the loading
determinations and land disposal EPA is listing this waste as hazardous limit, are disposed of in landfills with
restrictions for the specified organic based on the criteria set out in 40 CFR liner design requirements, or are treated
dyes and/or pigment production wastes. 261.11. As described in the November in certain combustion units. Once a
25, 2003 proposed rule (68 FR 66164), waste meets the classification for K181,
II. Summary of Today’s Action we assessed and considered these any treatment residuals remain
In today’s notice, EPA is promulgating criteria to determine whether hazardous wastes, unless delisted under
regulations that add one waste nonwastewaters and wastewaters from § 260.22.
Today’s rule also takes final action on specific constituents in the newly-listed and 1,3-phenylenediamine. The effect of
our proposed decision not to list as waste. adding these constituents to the UTS
hazardous, as discussed in the proposal, Also, as a result of this final rule, this Table (in addition to the requirements
wastewaters from the production of listed waste becomes a hazardous for treatment of these constituents in
dyes and/or pigments. substance under CERCLA. Therefore, in K181 wastes) would be to require all
Descriptions of wastes from the today’s rule we are designating these characteristic hazardous wastes that
production of dyes and/or pigments can wastes as CERCLA hazardous contain any of these constituents as
be found in the document entitled substances. These changes are described underlying hazardous constituents
‘‘Background Document for in section VII of today’s final rule. above their respective UTS levels to be
Identification and Listing of Wastes treated for those constituents prior to
III. Summary of Proposed Rule
from the Production of Organic Dyes land disposal.
and Pigments,’’ November 2003 A. What Wastes Did EPA Propose To We also proposed to add K181 to the
(hereafter referred to as the Listing List as Hazardous? list of CERCLA hazardous substances.
Background Document), available in the In the November 25, 2003 proposed B. How Was This Proposal Different
docket for the rulemaking. Responses to rule (68 FR 66164), EPA proposed to list From Prior Hazardous Waste Listing
public comments submitted on the one waste generated by the dyes and/or Determinations?
November 25, 2003 proposal can be pigments manufacturing industry as
found in the ‘‘Response to Comments In previous hazardous waste listings
hazardous waste under RCRA: promulgated by EPA, we typically
Background Document—Hazardous
K181: Nonwastewaters from the describe the scope of the listing in terms
Waste Listing Determination for Dyes production of dyes and/or pigments
and/or Pigments Manufacturing Wastes of the waste material and the industry
(including nonwastewaters commingled at or process generating the waste.
(Final Rule),’’ dated February 2005 the point of generation with nonwastewaters
(hereafter referred to as the ‘‘Response However, we proposed to use a newly
from other processes) that, at the point of
to Comments Background Document’’), generation, contain mass loadings of any of developed ‘‘mass loadings-based’’
also available in the docket. In addition, the constituents identified in paragraph (c)(1) approach for listing dyes and/or
a number of commenters incorporated of this section that are equal to or greater pigment production wastes. In a mass
comments submitted in prior than the corresponding paragraph (c)(1) loadings-based listing, a waste would be
levels, as determined on a calendar year hazardous once a determination is made
rulemakings into their 2003 public basis. These wastes would not be hazardous
comments. Our responses to these that it contains any of the constituents
if: (i) The nonwastewaters do not contain of concern (CoC) at or above the
‘‘incorporated’’ comments are also annual mass loadings of the constituent
specified mass-based levels of concern.
available in the docket for today’s final identified in paragraph (c)(2) of this section
at or above the corresponding paragraph
In the proposed rule, we identified
rule in a document entitled,
(c)(2) level; and (ii) the nonwastewaters are CoCs likely to be present in
‘‘Background Document—Responses to nonwastewaters which may pose a risk
Incorporated Historical Comments on disposed in a Subtitle D landfill cell subject
to the design criteria in § 258.40 or in a above specified mass loading levels.
Prior Rulemakings,’’ dated February Subtitle C landfill cell subject to either Using risk assessment tools developed
2005. § 264.301 or § 265.301. For the purposes of to support our hazardous waste
We are also promulgating other this listing, dyes and/or pigments production identification program, we assessed the
changes to the RCRA regulations as a is defined in paragraph (b)(1) of this section. potential risks associated with the CoCs
result of this final listing determination. Paragraph (d) of this section describes the in plausible waste management
These changes include adding process for demonstrating that a facility’s
scenarios. From this analysis, we
constituents to Appendices VII and VIII nonwastewaters are not K181. This listing
does not apply to wastes that are otherwise developed ‘‘listing loading limits’’ for
of part 261, and setting land disposal each of the CoCs.
restrictions for the newly listed waste. identified as hazardous under §§ 261.21–24
and 261.31–33 at the point of generation. We proposed that if you generate any
We are adding the following seven Also, the listing does not apply to wastes dyes and/or pigment production
constituents to Appendix VII of 40 part generated before any annual mass loading nonwastewaters addressed by the
CFR 261 due to the fact that these limit is met. proposed rule, you would be required
constituents serve as the basis for the either to determine whether or not your
A summary of the proposed listing
new listing: Aniline, o-anisidine, 4- waste is hazardous or assume that it is
determination is presented below. More
chloroaniline, p-cresidine, 2,4- hazardous as generated under the
detailed discussions are provided in the
dimethylaniline, 1,2-phenylenediamine, proposed K181 listing. (Note, we
preamble to the proposed rule and in
and 1,3-phenylenediamine. We are proposed that if wastes are otherwise
the Background Documents included in
adding the following five constituents to hazardous due to an existing listing in
the docket for the proposed rule.
Appendix VIII of 40 CFR part 261 as In connection with the proposed K181 §§ 261.31–261.33 or the hazardous
‘‘hazardous constituents’’ because listing, EPA proposed to amend waste characteristics in §§ 261.21–
scientific studies show the chemicals Appendix VIII of 40 CFR part 261 to add 261.24, the listing under K181 would
have toxic, carcinogenic, mutagenic, or o-anisidine, p-cresidine, 2,4- not apply.) We proposed a three-step
teratogenic effects on humans or other dimethylaniline, 1,2-phenylenediamine, determination process. The first step
life forms (see § 261.11(a)(3)): o- and 1,3-phenylenediamine to the list of was a categorical determination where
anisidine, p-cresidine, 2,4- hazardous constituents. you would determine whether your
dimethylaniline, 1,2-phenylenediamine, We proposed to establish treatment waste falls within the categories of
and 1,3-phenylenediamine.2 Section standards for K181. We also proposed to wastes covered by the listing (e.g.,
IV.D of today’s rule describes the add the following constituents to the nonwastewaters generated from the
changes to the land disposal restrictions Universal Treatment Standards (UTS) production of dyes and/or pigments that
establishing treatment standards for the Table in 268.24 and to the F039 fall within the product classes of azo,
2 For toxicity information, see section 7 of the
treatment standards applicable to triarylmethane, perylene or
‘‘Risk Assessment Technical Background Document
hazardous waste landfill leachate: o- anthraquinone) and whether any of the
for the Dye and Pigment Industries Listing anisidine, p-cresidine, 2,4- regulated constituents could be in your
Determination,’’ November 2003 in the docket. dimethylaniline, toluene-2,4-diamine, waste. We proposed that if you
determine under this first step that your our assessment of the available toxicity CoCs for which treatment standards had
waste meets the categorical description data, we believed that these chemicals not previously been developed.
of K181 and that your waste may met the § 261.11(a) criteria for inclusion We also assessed the potential of
contain any K181 constituent, you on Appendix VIII. Therefore, we developing numerical standards for
would then in the second step proposed to add them to Appendix VIII those constituents with current
determine whether your waste meets the of 40 CFR part 261. technology-based treatment standards
numerical standards for K181 (e.g., and those CoCs in K181 that lack
D. What Was the Proposed Status of
compare the mass loadings of the current treatment requirements.
Landfill Leachate From Previously
regulated constituents in your waste to Commenters to the July 23, 1999 listing
Disposed Wastes?
the numerical standards). Your waste proposal (64 FR 40192) suggested that
would be a listed hazardous waste if it We proposed to amend the existing EPA establish numerical standards,
contains any of the CoCs at a mass exemption from the definition of because they allow any treatment, other
loading equal to or greater than the hazardous waste for landfill leachate than impermissible dilution, to be used
annual hazardous mass limit identified generated from certain previously to comply with the land disposal
for that constituent (unless the waste is disposed hazardous waste (40 CFR restrictions. We found that there was
eligible for a conditional exemption 261.4(b)(15)) to include leachate adequate documentation in existing
under step three). Under the proposed collected from non-hazardous waste SW–846 3 methods 8270, 8315, and
approach, all waste handlers could landfills that previously accepted the 8325 to calculate numerical standards
manage as nonhazardous all wastes proposed K181 waste. We proposed to for the CoCs, with the exception of 1,3-
generated up to the mass loading limit, temporarily defer the application of the phenylenediamine; 1,2-
even if the waste subsequently exceeds proposed new waste code to such phenylenediamine; and 2,4-
one or more annual mass loading limits. leachate to avoid disruption of ongoing dimethylaniline. For 1,3-
Finally, in the third step, we proposed leachate management activities. phenylenediamine and 2,4-
that you would be able to determine The Agency proposed the deferral dimethylaniline, we proposed to
whether your waste is eligible for a because information available to EPA at transfer the numerical standards of
conditional exemption from the K181 the time indicated that the wastes
similar constituents as the universal
listing. We proposed that you would proposed to be listed as hazardous have
treatment standards.
need to demonstrate that your waste been managed previously in non- For 1,2-phenylenediamine, we found
does not exceed a higher mass loading hazardous waste landfills. Leachate during past method performance
limit for one constituent and that it is derived from the treatment, storage, or evaluations that it can be difficult to
being disposed of in a landfill subject to disposal of listed hazardous wastes is achieve reliable recovery from aqueous
design standards set out in § 258.40, classified as hazardous waste by the matrixes and precise measurements.
§ 264.301, or § 265.301. derived-from rule in 40 CFR 261.3(c)(2). Therefore, for this constituent, we
The 2003 proposal (and today’s final Without such a deferral, we were proposed that wastewaters be treated by
rule) differs markedly from two prior concerned about forcing pretreatment of CMBST; or CHOXD followed by BIODG
proposed listing determinations for the leachate even though pretreatment is or CARBN; or BIODG followed by
dyes and/or pigment manufacturing neither required by nor needed under CARBN, and all nonwastewaters would
wastes. On December 22, 1994, we the Clean Water Act (CWA). be treated by CMBST. We noted that if
previously proposed traditional listings E. What Were the Proposed Treatment data adequate for the development of a
of five specific wastes from these Standards Under RCRA’s Land Disposal numerical standard were presented in
industries (59 FR 66072). On July 23, Restrictions Standards? comments, the Agency might
1999, we subsequently proposed to list promulgate a numerical standard as an
an additional two wastes using a We proposed, where possible, to
apply existing universal treatment alternative, or as the treatment
concentration-based listing approach requirement.
(64 FR 40192). The 2003 proposal, and standards (UTS) for the proposed K181
constituents of concern (CoCs). We We indicated, however, that if these
the final rule promulgated today, numerical standards were shown in
completely supercede the prior 1994 proposed to apply the UTS to these
wastes because the waste compositions comments not to be achievable or
and 1999 proposals. See 68 FR 66171 for otherwise appropriate, we would adopt
further discussion of the early were found to be similar to other wastes
for which applicable treatment methods of treatment as the exclusive
background of this listing treatment standard. Under this
determination. technologies have been demonstrated.
We found that there is significant technology only approach, all
C. Which Constituents Did EPA Propose structural similarity among many of the nonwastewaters identified as K181
To Add to Appendix VIII of 40 CFR Part CoCs, including those for which we had would be treated by CMBST, and all
261? not previously set technology-specific derived from wastewaters would be
EPA proposed to add five constituents standards. We proposed that all CoCs treated by either WETOX or CHOXD,
to the list of hazardous constituents at for these wastes can be treated with followed by CARBN or CMBST.
40 CFR part 261. These chemicals and equal effectiveness (i.e., destroyed or We also proposed to add the
their Chemical Abstract Services (CAS) removed so as to be no longer constituents in K181 with numerical
numbers are: detectable) by similar methods of treatment standards to the Universal
treatment. We proposed combustion as Treatment Standards listed at 40 CFR
o-anisidine (CAS No. 90–04–0), 268.48. As a result, characteristic wastes
p-cresidine (CAS No. 120–71–8), the most effective BDAT treatment for
2,4-dimethylaniline (CAS No. 95–68–1), nonwastewater forms of these wastes. that also contain these constituents
1,2-phenylenediamine (CAS No. 95–54– For wastewaters derived from K181, we would require additional treatment
5), and proposed a treatment train of wet air before disposal, if constituent
1,3-phenylenediamine (CAS No. 108– oxidation (WETOX) or chemical 3 Manual of test methods from EPA/OSW: ‘‘Test
45–2). oxidation (CHOXD) followed by carbon Methods for Evaluating Solid Waste, Physical/
We proposed these chemicals as CoCs adsorption (CARBN), or application of Chemical Methods,’’ SW–846; see http://
for the proposed K181 listing. Based on combustion (CMBST) as BDAT for the www.epa.gov/epaoswer/hazwaste/test/sw846.htm.
concentrations exceed the proposed To establish these listing levels, we: and hydrogeologic data, location of the
levels. (1) Selected constituents of potential receptors relative to the waste
We proposed to amend the CoCs in concern in waste from dye and/or management units, and exposure factors
F039 as necessary to include the pigment production, (2) evaluated such as intake rates and residence times.
constituents identified in K181 not plausible waste management scenarios, The preamble to the proposed rule
already specified in F039. F039 applies (3) calculated exposure concentrations (see 68 FR 66181, November 25, 2003)
to landfill leachates generated from by modeling the release and transport of and the Risk Assessment Technical
multiple listed wastes in lieu of the the constituents from the waste Background Document for the Dye and
original waste codes. F039 wastes are management unit to the point of Pigment Industries Listing
subject to numerical treatment exposure, and (4) calculated waste Determination (hereafter known as the
standards equivalent to the universal constituent loadings that are likely to Risk Assessment Background
treatment standards listed at 40 CFR pose an unacceptable risk. In addition, Document) provide more detail on this
268.48. Without this change in existing we conducted a screening level risk assessment.
regulations, F039 landfill leachates may ecological risk assessment to ensure that
not receive proper treatment for the IV. What Is the Rationale for Today’s
the mass loading limits were protective
constituents of K181. Final Rule?
of the environment.
The proposed treatment standards The risk analysis for the dyes and/or A. Final Listing Determination
reflected the performance of best pigment production wastes estimated We are promulgating today a final
demonstrated treatment technologies, the mass loading of individual listing for nonwastewaters generated
and were not based on the listing levels constituents that can be present in each
from the production of dyes and/or
of concern derived from the risk waste without exceeding a specified
pigments. As explained below, we are
assessment for dyes and/or pigments level of protection to human health and
wastes. In that risk assessment, our revising the listing language slightly
the environment. The risk assessment
analysis focused on the plausible from the proposal in response to
evaluated waste management scenarios
management practices for only the dyes comments. The final listing description
that may occur nationwide. We selected
and pigment industries. As a result, our follows:
a national analysis that captures
models did not attempt to assess all variability in meteorological and K181: Nonwastewaters from the
possible pathways, because the hydrogeological conditions for this production of dyes and/or pigments
plausible management practice (including nonwastewaters commingled at
listing determination because facilities
the point of generation with nonwastewaters
(disposal in a municipal subtitle D that manage these wastes are found in from other processes) that, at the point of
landfill) provides a certain level of many areas of the country. generation, contain mass loadings of any of
control over some potential release For this listing determination, we the constituents identified in paragraph (c) of
pathways. In addition, our assessment defined the target level of protection for this section that are equal to or greater than
of potential releases modeled human health to be an incremental the corresponding paragraph (c) levels, as
engineered barriers in the form of lifetime cancer risk of no greater than determined on a calendar year basis. These
various types of liner systems. one in 100,000 (10-5) for carcinogenic wastes will not be hazardous if the
As discussed in the proposal, it was chemicals and a hazard quotient (HQ) of nonwastewaters are: (i) Disposed in a Subtitle
not appropriate to use the mass loading D landfill unit subject to the design criteria
1.0 for non-carcinogenic chemicals. The
in § 258.40, (ii) disposed in a Subtitle C
levels derived from these risk hazard quotient is the ratio of an landfill unit subject to either § 264.301 or
assessments as levels at which threats to individual’s daily dose of a constituent § 265.301, (iii) disposed in other Subtitle D
human health and to the environment to the reference dose for that landfill units that meet the design criteria in
are minimized. Because there remained constituent, where the reference dose is § 258.40, § 264.301, or § 265.301, or (iv)
significant uncertainties as to what an estimate of the daily dose that is treated in a combustion unit that is permitted
levels of hazardous constituents in these likely to be without appreciable risk of under Subtitle C, or an onsite combustion
wastes would minimize threats to harmful effects over a lifetime. unit that is permitted under the Clean Air
human health and to the environment To determine the allowable mass Act. For the purposes of this listing, dyes
loadings for CoCs, we used a and/or pigments production is defined in
posed by these wastes’ land disposal,
paragraph (b)(1) of this section. Paragraph (d)
we chose to develop treatment probabilistic analysis to calculate the of this section describes the process for
standards for these wastes based on exposure to nearby residents from demonstrating that a facility’s
performance of the Best Demonstrated disposal of those constituents in the nonwastewaters are not K181. This listing
Available Technology for these wastes. types of waste management units that does not apply to wastes that are otherwise
HWTC III, 886 F. 2d at 361–363 could be used by the dyes and pigments identified as hazardous under §§ 261.21–24
(accepting this approach). For the same industries. We then established the and 261.31–33 at the point of generation.
reason, we found that these technology- allowable mass loading level such that Also, the listing does not apply to wastes
the exposure to each constituent would generated before any annual mass loading
based treatment standards were not
not exceed the target level of protection limit is met.
more stringent than the risk-based levels
at which we could find that threats to for 90 percent of the nearby residents EPA is listing nonwastewaters from
human health and to the environment including both adults and children. the production of dyes and/or pigments
are minimized. Thus, the allowable mass loadings met as hazardous because this wastestream
a target cancer risk level of 10-5 or meets the criteria set out at 40 CFR
F. What Risk Assessment Approach Was hazard quotient of one for 90 percent of 261.11(a)(3) for listing a waste as
Used for the Proposed Rule? the receptor scenarios we evaluated. hazardous. As described in the proposal
For the proposed rule, we conducted In this probabilistic analysis, we (68 FR 66179), the criteria provided in
a risk assessment to calculate the varied sensitive parameters for the 40 CFR 261.11(a)(3) include eleven
maximum mass loading of individual distributions of data that were available. factors for determining ‘‘substantial
constituents that could be present in The parameters varied for this analysis present or potential hazard to human
dye and pigment waste and remain include waste management unit size, health or the environment.’’ Most of
below a specified level of risk to both parameters related to the location of the these factors were incorporated into
humans and the environment. waste management unit such as climate EPA’s risk assessment, as discussed
further below. The risk analyses improper management of the wastes of diamine.) As a result, we do not believe
conducted in support of our proposed concern (§ 261.11(a)(3)(ix)).6 We it is appropriate to include toluene-2,4-
listing determination are presented in concluded that the wastes in the damage diamine as a basis for listing K181 in
detail in the Risk Assessment cases may include wastes not in the today’s final rule. Accordingly, we have
Background Document, which is in the scope of today’s rule, and that the cases removed this constituent from the
docket for today’s rule. reflect management scenarios that are proposed § 261.31(c)(1) standards, and
We considered the toxicity of the not currently common or plausible (see have deleted entirely the proposed
chemicals potentially present in these 68 FR 66189). Thus, while the damage § 261.32(c)(2) standard in this action.
wastes (§ 261.11(a)(3)(i)). We found that cases indicated that some dyes and/or 2. Use of Clay-Lined and Composite-
the CoCs are toxic chemicals with pigment production wastes may Lined Landfills
established health-based benchmarks for sometimes pose risks, EPA relied on its
cancer and noncancer endpoints.4 We quantitative risk assessment in We proposed to list nonwastewaters
considered constituent concentrations formulating today’s final rule. from dye and/or pigment manufacturing
(§ 261.11(a)(3)(ii)) and the quantities of Significant comments submitted on that met or exceeded mass loading
waste generated (§ 261.11(a) (3)(viii)) in this proposal and the supporting limits for eight constituents of concern.
establishing mass loading limits for analyses are summarized below. The These ‘‘baseline’’ loading limits were
specific CoCs. Thus, the listing Response to Comment Background based on our risk assessment of
description for K181 includes mass Document provides all of the comments management of the waste in a clay-lined
loading limits for specific CoCs that and our responses to them. landfill. We also proposed to
present risk to consumers of conditionally exempt wastes managed
1. Toluene-2,4-diamine in landfills subject to liner regulations
groundwater. In setting the mass loading
limits, we used fate and transport Toluene-2,4-diamine was one of the for municipal or hazardous waste
models to determine the potential for eight constituents of concern (CoC) for landfills, if the mass of one constituent
migration, persistence, and degradation which EPA proposed a § 261.31(c)(1) of concern (toluene-2,4-diamine) was
of the hazardous constituents and any mass loading limits. We also proposed below a specified mass loading limit.
degradation products (§§ 261(a)(3)(iii), a higher mass loading limit for toluene- The basis for this conditional exemption
261.11(a)(3)(iv), and 261.11(a)(3)(v)).5 2,4-diamine under § (c)(2) that would was a risk assessment of wastes
Bioaccumulation of the constituents have identified a mass loading limit managed in a composite-lined landfill.
(§ 261.11(a)(3)(vi)) is not relevant to the above which wastes would no longer be A number of dye and pigment
key exposure pathway EPA assessed eligible for a contingent management manufacturers submitted comments
exemption and would have been a stating that they do not use unlined or
(consumption of groundwater).
As discussed in the proposal (68 FR hazardous waste. Toluene-2,4-diamine clay-lined landfills, and most indicated
66178), we considered two other factors, was the only CoC for which we that their waste is managed in landfills
plausible mismanagement and other proposed a § 261.32(c)(2) level. that have ‘‘synthetic liners.’’ The trade
regulatory actions ((§§ 261.11(a)(3)(vii) Commenters argued that it is association for the dye manufacturers
and 261.11(a)(3)(x)) in establishing the inappropriate to use toluene-2,4- (ETAD) surveyed their members and
waste management scenario(s) modeled diamine as a CoC because it is ‘‘not stated that there is ‘‘no use of
in the risk assessment. We considered typically or frequently used in dyes unregulated clay-lined landfills or
production’’ (Ecological and unlined landfills’’ and that ‘‘all known
mass loading limits based on two
Toxicological Association of Dyes and landfills currently in use are subtitle C
plausible waste management scenarios,
Organic Pigments Manufacturers or or subtitle D landfills that incorporate a
clay-lined and composite-lined
ETAD) and is ‘‘not used in any color synthetic liner into their liner system.’’
landfills. We are promulgating a final
pigment facility for the production of The association further noted that the
listing with mass loading limits for
color pigments’’ (Color Pigments design standards for municipal solid
wastes in a clay-lined landfill, and a
Manufacturing Association or CPMA). waste landfills promulgated in 1991 call
conditional exemption for wastes
In the proposal, we described data for use of a composite liner (§ 258.40).
managed in landfills that are subject to
collected from the Toxic Release The association also resubmitted a
(or otherwise meet) the liner design
Inventory (TRI), the Colour Index (CI), survey it originally submitted in 1999 in
requirements specified in the listing comments on the prior July 23, 1999
description for municipal landfills and two facilities’ websites that
potentially link use of toluene-2,4- proposal, claiming that this showed all
(§ 258.40) or hazardous waste landfills identified liner systems included a
(§ 264.301 or § 265.301). We are also diamine to facilities known to
manufacture dyes and/or pigments. The synthetic liner. The trade association for
adding an exemption for wastes treated pigment manufacturers (CPMA) also
in certain permitted combustion units. commenters have addressed these
potential links. Based on these surveyed their members and stated that
Thus, if generators of wastes potentially their members do not use unlined or
subject to the K181 listing use landfills arguments, we believe the commenters
have successfully demonstrated that clay-lined landfills, but rather use
meeting these design standards, or treat ‘‘synthetic lined industrial landfills’’
the waste in the specified combustion toluene-2,4-diamine is rarely used. Only
one dye manufacturer reported using and ‘‘synthetic lined municipal
units, then the loading limits set forth landfills’’ for their nonwastewaters.
in K181 would not apply and the waste this constituent, and this use does not
generate any waste containing this CoC; Based on this information, commenters
would not be hazardous. argued that the risk assessment EPA
We also considered one factor beyond it is not used at all by any pigment
manufacturers. (See Response to used to establish mass loading limits for
the risk assessment, that is, whether
Comments Background Document for K181 should have been based on
damage cases indicate impacts on
more detailed discussion regarding the composite-lined landfills with a
human health or the environment from
use, or lack of use of toluene-2,4- synthetic liner.
4 Risk Assessment Background Document,
We continue to believe that the clay-
Section 7. 6 The final factor allows EPA to consider other lined landfill is an appropriate scenario
5 Risk Assessment Background Document, factors as appropriate (§ 261.11(a)(3)(xi)), however for the baseline mass loading limits for
Sections 4 and 5. we did not consider such factors. K181 for several reasons. First, as noted
in the proposal, our data show that the the proposal, the final rule no longer fuels for commercial boilers and
industries use municipal solid waste sets a mass loading limit for toluene-2,4- combustion units.
(MSW) landfills, and the liner diamine, and thus there are no testing Commenters stated that regulating
requirements in § 258.40 are not requirements associated with this incineration in the absence of a risk
applicable to existing units in operation exemption. If generators of wastes assessment or data is not warranted, and
since before October 9, 1993, or certain potentially subject to the K181 listing that combustion provides at least as
exempt units (§ 258.1(f)(1)). Thus, our use composite-lined municipal or much protection for the environment as
data indicate that disposal of dye and subtitle C landfills, then the mass a synthetic-lined landfill. Commenters
pigment wastes into older clay-lined loading limits set forth in K181 would cited the preamble discussion in the
MSW landfills in operation is a not apply and the waste would not be proposal, which stated that previous
plausible management scenario (see hazardous. (The final listing also analyses for other wastes determined
proposal at 68 FR 66191). In addition, includes an exemption for combustion, that potential risks from the release of
the information provided by the as discussed in the following section). constituents through incineration would
commenters is insufficient to rebut this Therefore, given the uncertainties in the be several orders of magnitude below
finding for these industries. In fact, the types of liner systems that may be in potential air risks from releases from
information provided by the place in landfills used by dye and tanks or impoundments. Commenters
commenters shows that industrial pigment manufacturers, and based on also noted that EPA had concluded that
landfills are in use by some pigment the information available that indicates combustion was effective and protective
manufacturers. There are no Federal this is a plausible management scenario, in setting BDAT standards for K181.
liner requirements that are in place for we believe that it is appropriate to base One commenter submitted a risk
such units. While many states have the mass-loading limits on a clay-lined assessment for combustion of their
regulations for these type of industrial landfill. waste, which was previously submitted
landfills, the requirements for liners in their comments on the 1994 proposal,
3. Status of Wastes That Are Combusted and indicated that the risks are below
appear variable and do not necessarily
provide the same level of protection as While we proposed a conditional levels of concern.
the standards for municipal solid waste exemption for wastes managed in units After reviewing the comments and the
landfills in § 258.40. Finally, while meeting the liner design criteria for available information, we have decided
commenters claimed that the landfills municipal or hazardous waste landfills, to exempt wastes treated in certain
currently in use by respondents to their we proposed that wastes that met or combustion units from the K181 listing.
exceeded the baseline listing levels As we noted in the proposed rule, we
surveys have ‘‘synthetic’’ liners, they
would be hazardous if treated by expect risks from combustion of the key
did not confirm that all landfills in use
combustion. However, we solicited constituents of concern to be relatively
had composite liners that met the
comment in the preamble on the option low, based on the relatively low air risks
standards set out in § 258.40.
The specific landfill information to exempt wastes going to combustion, exhibited by these constituents from
resubmitted by ETAD was for seventeen provided the units are permitted under treatment in tanks and surface
landfills relevant to dye manufacturers subtitle C or have other relevant permits impoundments. Analyses in previous
under the Clean Air Act (CAA). listing determinations have shown that
only, and thus not representative of the
The comments generally supported air risks arising from releases of
landfills that could be used throughout
the option of exempting wastes destined constituents not destroyed in
the dye and pigment industries. (EPA
for combustion. Commenters stated that combustion are much lower than risks
estimated that there were about 2,300
EPA should exempt wastes being from releases of constituents from tanks
MSW landfills in operation in 2000.)
combusted or include combustion in the and surface impoundments (68 FR
Furthermore, ETAD originally
contingent management practices 66196). Thus, while we did not model
submitted this information in response
qualifying for an exemption from the the specific dye and pigment wastes at
to the proposed listing decision in 1999
listing. Surveys submitted by the trade issue in this rule, we believe that risks
for only three wastestreams generated
associations (ETAD and CPMA) from combustion would be relatively
by the dye and pigment industries; as low.
confirmed that some facilities treated
such, ETAD did not clarify if other As commenters pointed out, by
nonwastewaters by combustion, and
landfills may have been in use for other exempting wastes going to certain
other comments by specific companies
wastestreams. Finally, the limited landfills, but not wastes treated by
stated they want to have the option of
information provided in this submission combustion, we would effectively be
incineration in the future. Commenters
shows that the type of liner system was encouraging landfill disposal over
pointed out that the proposed approach
not specified for some landfills, and combustion. The exemption for landfill
would mean that wastes that met or
thus, it is not clear if the liner systems disposal may therefore cause some
exceeded the baseline listing levels and
are composite liners that would meet facilities with organic waste having
are incinerated would be hazardous,
the § 258.40 requirements. significant fuel (BTU) value to change
We proposed mass loading limits while the same waste would be
nonhazardous if it is managed in a from combustion (either offsite or
based on two specific types of lined and onsite) to disposal in landfills, to take
fills, clay-lined and composite-lined landfill meeting appropriate criteria.
Commenters contended that this would advantage of the landfill exemption.
landfills. We are promulgating a final Exempting wastes treated in appropriate
listing with a conditional exemption for encourage facilities to shift from
combustion to disposal in landfills, combustion units would avoid this
wastes managed in landfill units that unintended outcome of the listing.
meet the liner design requirements even for wastes with high organic
content. Commenters suggested that As noted in the proposal, we found
specified in the listing description ten facilities reporting in the TRI that
(§ 258.40, 264.301 or 265.301).7 Unlike wastes going to ‘‘permitted’’ combustion
units should be exempt, because they send wastes off site for combustion
7 Note that in the final rule we have replaced the permitting authorities consider input (e.g., incineration, energy recovery). All
term ‘‘landfill cell’’ with ‘‘landfill unit.’’ We made
of the treatment facilities are RCRA
this change so that the terminology used in this rule in the RCRA regulations for landfills (Part 258 and Subtitle C facilities. Because this is a
is more consistent with the use of the term ‘‘unit’’ in §§ 264.301 and 265.301). management practice we believe is
especially appropriate for waste with units that may be used for dye and the proposed rule. The commenter
high organic content, we have decided pigment wastes. Permits for offsite units further pointed out that in the 1994
to include an exemption for wastes under the CAA would not necessarily proposal (59 FR 66072), EPA proposed
treated in Subtitle C combustion units. consider the CoCs for the dye and a no-list decision for wastewater from
To the extent that these wastes are pigment wastes (e.g., of the seven CoCs, the production of anthraquinone dyes
already managed as hazardous because only aniline and o-anisidine are and pigments, and in the 1999 proposal
they exhibit a hazardous waste Hazardous Air Pollutants under the (64 FR 40192), EPA proposed a no-list
characteristic or meet another hazardous CAA), whereas permits for onsite units decision for wastewater treatment
waste listing description, today’s final are likely to be more specific for the dyesludge from the production of
rule will have no impact on them, and pigment industries. anthraquinone dyes and pigments. As
because the K181 listing does not apply discussed in the proposal, EPA
4. Scope of Listing Definition
to wastes that are hazardous for other identified the constituents by
reasons (see the listing description). Commenters identified several issues developing a list of chemicals that could
We are more concerned about the related to the scope of the proposed reasonably be expected to be associated
combustion of dye and pigment wastes listing, as summarized below, and with wastes from the production of
in units that are not subject to Subtitle discussed in more detail in the various classes of dyes and pigments,
C regulations. We know of only two Response to Comments Background including anthraquinone dyes and
facilities that use onsite thermal Document. pigments. See 68 FR at 66180–66182,
treatment of dye or pigment production a. Perylenes and Anthraquinones. One and ‘‘Background Document:
wastes. One of these facilities indicated trade association commented that EPA Development of Constituents of Concern
that it does not produce any in-scope erred in including perylenes in the for Dyes and Pigments Listing
wastes containing any of the CoCs. The proposed listing because Paragraph Determination’’ in the docket. This
other facility generates a still bottom l.h.(i) of the ED consent decree (as commenter did not provide any
that may exceed the mass loading limit amended in December 2002) states that documentation to support its argument
for aniline. This facility resubmitted a ‘‘EPA shall promulgate final listing that none of the eight CoCs are used to
risk assessment previously included in determinations for azo/benzidine, produce anthraquinone dyes or
comments on the 1994 proposal in an anthraquinone, and triarylmethane dye pigments, or otherwise specifically
attempt to show no significant risk for and pigment production wastes.’’ The address the information and findings
its onsite boiler. The risk assessment, commenter argued that perylenes are presented in the proposal. In addition,
while specific to this one combustion not a subclass of the anthraquinone none of the other companies or trade
unit, provides information on the unit category, and that none of the eight associations made similar claims.
that indicates that it has relatively high CoCs are used as raw materials in the Finally, we note that, as discussed in
destruction and removal efficiency manufacture of perylene color pigments. the 2003 proposal (68 FR 66171–2), our
(>99% in this case for the CoC known We note, as discussed previously in 2003 proposed rule completely
to be present, aniline). This particular the proposal, that the ED consent decree supercedes the 1994 and 1999
unit is also permitted by the state under (under which today’s listing proposals. In any case, unlike the 1999
the CAA, and the permit contains determination is mandated) further concentration-based listing in which we
specific limitations on the release of the specifies that ‘‘The anthraquinone evaluated specific waste types from the
key CoC (40 kg/year).8 Therefore, in this listing determination shall include the production of individual dyes/pigments
specific case, the state regulatory following anthraquinone dye and classes,9 the 2003 proposal grouped all
authority has evaluated and controlled pigment classes: anthraquinone and of the wastes that are identified in the
the releases of this CoC through this perylene’’ (68 FR 66173). Therefore, we ED consent decree into wastewaters and
permit. We find the comments must make listing determinations that nonwastewaters.
submitted by the company compelling, cover any corresponding wastes, Moreover, some of the listing
given that the waste has high organic regardless of whether or not perylenes constituents might be present in the
content (98.7%) and a high fuel value. are properly classified as dyes and/or pigments production
Therefore, we have also decided to anthraquinones. Furthermore, as nonwastewaters as a result of reaction
include an exemption for onsite discussed in the proposal and in the byproducts, impurities in raw materials,
combustion units (units that are located Response to Comments Background or as a result of degradation of raw
at the site of generation) that are Document, we are not differentiating materials or products. Therefore, we
permitted under the CAA. We are between dye manufacture and pigment believe it is appropriate to retain both
limiting the exemption to onsite manufacture. While the pigments perylene and anthraquinone production
combustion units because: (1) Currently industry may not use the K181 CoCs for within the scope of this final K181
we have no information that offsite manufacturing perylene pigments as listing. If, however, as the commenter
combustion is occurring in non-subtitle contended by the commenter, it is suggests, the CoCs are not present in the
C units, and (2) we lack information on possible that the dyes industry may still generators’ wastes, then the wastes
whether any permits for non-subtitle C use some of them for perylene dyes. would not be considered the K181 listed
offsite units would necessarily address Note that ETAD and its member dye waste.
all potential CoCs. Offsite combustion manufacturers did not provide b. Post-Production. Two commenters
units are likely to accept a wide variety comments in this respect. Finally, we stated that the proposed rule does not
of other wastes, and seem less likely to note that the consent decree does not adequately define ‘‘production’’ of dyes
address the specific constituents of limit EPA’s authority to list wastes, but and/or pigments, and that some wastes
concern for dye and pigment production merely identifies those wastes for which covered by the ED consent decree could
wastes. We have less information on the EPA must make a listing determination.
various kinds of existing or potential Another commenter argued that none 9 Spent filter aids, triarylmethane sludges and
of the eight CoCs are used to produce anthraquinone sludges were deferred from the 1994
permits relevant to offsite combustion proposed listing decisions for 11 of the wastes
anthraquinone dyes or pigments and, covered in the ED consent decree (59 FR 66072,
8 See the air permit for BASF in the docket for therefore, EPA should remove December 22, 1994). EPA did not take final action
this rule. anthraquinone dyes and pigments from on either of the 1994 and 1999 proposals.
be generated from certain types of ‘‘post- processes (i.e., that other process wastes processes would not be subject to the
production’’ activities. They contended commingled with in-scope process K181 listing. One trade association felt
that the listing should not apply to wastes would be covered by the that the general concept of segregating
‘‘post-production’’ activities, in proposed K181 listing). We requested waste which has no in-scope K181
reference to 68 FR 66173 in which the comment, however, on an alternative contribution is reasonable.11
Agency stated that the proposed rule approach which would allow facilities To help clarify these concepts, we
does not apply to the end-users of dyes to count only those mass loadings present below several examples of how
and/or pigments and similarly does not associated with azo/triarylmethane/ wastes might be commingled. (See also
apply to post-production formulation perylene/anthraquinone dyes and/or the examples previously presented in
and packaging. One commenter pigments manufacture when assessing the proposal at 68 FR 66205–66207.)
suggested that EPA should include the whether their wastes meet or exceed the Example 1: In-scope wastes without CoCs,
appropriate clarifications in the CFR K181 listing levels. One commenter, a commingled with out-of-scope wastes.
language that defines the scope of the trade association, favored this Facility A produces numerous chemical
proposed listing. alternative approach. This commenter products including a small amount of azo
In response to the commenters’ reasoned that not allowing facilities to dyes. This facility uses none of the K181
request for clarification, we are adding count only those mass loadings CoCs in the manufacture of azo dyes, and it
the following language to the final rule associated with covered production will finds no CoCs in the dye manufacturing
at the end of the Listing Specific result in ‘‘an artificial incentive to process wastewaters based on recent
analytical results. Thus, according to the
Definitions in § 261.32(b)(1): ‘‘Wastes inefficiently segregate wastes, procedure in § 261.32(d)(1), the facility
that are not generated at a dyes and/or potentially increasing risks associated determines that any resulting treatment
pigments manufacturing site, such as with their management.’’ However, this sludge is not K181. The in-scope azo dye
wastes from the off-site use, commenter did not elaborate or provide process wastewaters are commingled and co-
formulation, and packaging of dyes and/ any specifics. treated with a much larger volume of
or pigments, are not included in the We have carefully considered the nonhazardous wastewaters generated from
K181 listing.’’ Thus, we are specifically commenter’s argument, but we have the production of various out-of-scope
including this in the regulatory language decided to retain the proposed chemicals in a centralized wastewater
to clarify that we are not including in approach. The dye and pigment treatment plant (CWTP) prior to discharge to
a publicly owned treatment works (POTW).
K181 those wastes that are not generated industries use batch processes and
The facility uses aniline in some of the other
at a dyes and/or pigments numerous raw materials to produce a out-of-scope chemical production processes.
manufacturing site. However, wastes wide variety of products, thereby The facility determines that the resultant
resulting from the blending, generating various nonwastewaters.10 wastewater treatment sludges, though found
formulation, preparation, processing Therefore, we believe it would not only to contain aniline above the listing level, are
(grinding, dispersing, drying, finishing, be more difficult for the facilities to not subject to K181 because the azo dye
filtering, purification, product implement the proposed alternative process wastewaters treated in the plant do
standardization, etc.), dust collection, approach (i.e., tracking and keeping not contain any of the CoCs. The facility also
packaging and any other operations adequate documentation of all the mass determines that other nonwastewaters
(including filtration sludges, spent filter aids,
related to in-scope dyes and/or contributions prior to commingling), but and other process solids) generated from dye
pigments that occur on site at the it would also be very difficult for the manufacturing also do not contain any CoCs,
covered dyes and/or pigments regulating authorities to make their own based on its knowledge of the feed raw
manufacturers are potentially within the determinations for oversight and materials (including major and minor
scope of today’s final listing, if they enforcement purposes. For this reason ingredients, and impurities) and the
meet the relevant criteria. Note that, as and the reasons stated at 68 FR 66195, manufacturing processes (reaction, chemical
required under the ED consent decree, we have decided to take the more degradation, waste generation, etc.). The
we addressed a variety of dyes and/or straightforward approach of structuring facility documents its findings, and
pigment waste streams in this listing the mass-based K181 listing as appropriately manages all the CWTP sludges
and dye process nonwastewaters (also
determination. The ED consent decree proposed, and not to adopt the
determined to be not characteristically
states that ‘‘Listing determinations alternative approach. Therefore, the hazardous and not meeting any other listing
under paragraph 1(h) of this Decree K181 listing covers mass contributions descriptions) as nonhazardous.
shall include the following wastes, from other processes when in-scope and Example 2: In-scope wastes with traces of
where EPA finds such wastes are out-of-scope waste sources are CoCs, co-managed with out-of-scope wastes.
generated: spent catalysts, reactor still commingled, and the entire commingled Facility B is an organic pigment
overhead, vacuum system condensate, volume is included in the waste manufacturer operating a number of in-scope
process waters, spent adsorbent, quantity and mass loading calculations. and out-of-scope production process lines.
equipment cleaning sludge, product On the other hand, if the in-scope waste The facility generates a total of 450 metric
mother liquor, product standardization sources contain none of the K181 listing tons per year (MT/yr) of nonwastewaters,
consisting of 350 MT/yr of sludge from the
filter cake, dust collector fines, recovery constituents, the commingled volume is
facility’s onsite wastewater treatment system
still bottoms, treated wastewater not subject to the K181 listing even and as much as 100 MT/yr of production
effluent, and wastewater treatment though its mass loadings may meet or waste solids generated from all onsite
sludge.’’ Some of the wastes identified exceed the K181 listing levels. processes combined. Historically, all the
in the ED consent decree (such as As discussed in the proposal, a nonwastewaters were stored in dumpsters
product standardization filter cake and facility might choose to segregate K181 and periodically shipped off site for disposal
dust collector fines) can be generated sources from non-K181 sources, so that in a Subtitle D landfill. Following the
from various ‘‘post-production’’ nonwastewaters from noncovered promulgation of the K181 listing, the facility
activities at the dyes and/or pigments carefully examines the material safety data
facilities. 10 ETAD also indicated in its comment that ‘‘Dyes
c. Commingling. We described in the production involves batch processes, numerous 11 Facilities might also choose to treat the K181
distinct products and highly variable waste streams listing levels as valuable pollution prevention goals
proposal (68 FR 66195) that the scope of * * *’’ and that ‘‘The production mix and scale is and engage in process modifications designed to
the listing covers commingled wastes entirely subject to somewhat unpredictable reduce mass loadings (irrespective of their source)
with mass contributions from other customer demand.’’ below the K181 loading limits.
sheets and finds traces of p-cresidine in some information provided in portions of dye manufacturers ceased operation
of the raw materials used. Based on the RCRA Section 3007 surveys and public during the past year.
material purity information, the facility uses comments that were not claimed as CPMA similarly conducted a
its knowledge and, based on mass balance confidential survey of 21 organic
confidential business information (CBI).
(see § 261.32(d)(2) for generated quantities
We then used the average of the pigment manufacturers following the
less than 1,000 MT/yr), determines that a
maximum of 30 kg/yr of p-cresidine could be estimated annual waste quantities proposal, and provided masked waste
released to and contained in the combined (1,894 MT/yr) and a high-end waste quantity summary data for both total
volume of nonwastewaters generated for the constituent concentration of 5,000 parts and in-scope nonwastewaters as part of
year. Since the annual mass loading of p- per million (ppm) to calculate a mass their comments. CPMA commented
cresidine is less than the K181 listing level loading cutoff of 10,000 kilograms per that, based on its survey, EPA’s
of 660 kg/yr, the facility concludes that its in- year (kg/yr); that is, we assumed it estimates of nonwastewater quantities
scope nonwastewaters are not a K181 waste. overestimate the amount of
would be highly unlikely to find the
The facility thus documents its findings, and nonwastewater generated by the
appropriately continues to ship the CoC above this level in typical dyes
and/or pigment production pigments industry by at least 400
commingled wastes to a subtitle D landfill.
Example 3: Segregation of wastes destined nonwastewaters (see discussion at 68 FR percent, and that the actual amount of
for disposal in a municipal landfill; total in- 66186).12 In addition, we used the nonwastewaters generated by the dyes
scope waste quantities over 1,000 MT/yr. estimated waste quantities for cost and and pigments production industries is
Facility C uses some of the CoCs in its economic analyses of the potential much less than one-half the amount
production of various organic dyes and impacts of the proposed listing, and for estimated by the Agency.
pigments covered by the K181 listing. It Six organic dyes and/or pigments
waste treatment and management
commingles and co-treats all the manufacturers also presented their
manufacturing process wastewaters on site, capacity analyses. Below we address the
public comments on our use of the waste quantities and disputed the
generating 1,200 MT/yr of wastewater Agency’s estimates for their facilities.
treatment sludge. In addition, it generates 50 estimated waste quantities for
establishing the proposed mass loading Several other pigment manufacturers
MT/yr of process wastes with high organic
content (still bottoms). Therefore, this levels. Comments on our use of the mirrored CPMA’s comment that the
facility’s manufacturing and treatment estimated waste quantities for economic Agency overestimated the waste
processes yield a total of 1,250 MT/yr of in- impacts and waste management quantities generated by the industries by
scope nonwastewaters. Given that the K181 capacity analyses are addressed at least 400 percent, although they did
listing allows nonwastewaters to be disposed
separately in section VIII and section not specifically provide their own waste
in a municipal landfill subject to the § 258.40 quantities. Several manufacturers
design criteria regardless of constituent levels IV.E, respectively.
informed us that their in-scope
in the wastes, the facility decides to send all Two trade associations and several
manufacturing processes do not
the wastewater treatment sludges to a dyes/pigments manufacturers submitted contribute any of the proposed K181
municipal landfill subject to § 258.40. The comments on the Agency’s estimates of constituents to their wastes.
still bottoms, however, would not be waste quantities generated by the
managed in the same manner due to their
We reviewed the waste quantity
organic dyes and pigments industries. information and data provided by the
high liquid content. They argued that our waste quantity
The still bottoms do not exhibit any of the commenters, but found some data
estimates were overstated, and thus our discrepancies and deficiencies that limit
hazardous waste characteristics nor meet any
other listing descriptions. Because the total estimates of possible amounts of CoCs use of the data. Our findings are
annual waste quantity of dyes/pigments present in the wastes were too high. summarized below:
nonwastewaters generated by all the Subsequent to the November 25, 2003 —Two dye manufacturers have closed.
processes would exceed 1,000 MT/yr, the proposal, ETAD conducted a —The organic pigment manufacturing
facility considers the options of either: (1) confidential survey of 15 organic dye operation of one dye and pigment
Complying with the annual testing production facilities, and submitted as
requirements of § 261.32(d)(3) and, if the
production facility was recently sold
part of their comments masked waste to a pigments manufacturer.
CoCs are below the mass-loading levels,
quantity data from the survey.13 Based —Two facilities use none of the
sending the still bottom waste offsite for
combustion in a nonhazardous combustion on its survey results, ETAD contended proposed K181 listing constituents.
unit, or (2) sending the waste offsite to a that the proposed rule greatly —Three facilities do not generate any
subtitle C combustion unit. The facility exaggerates the quantity of proposed nonwastewater.
suspects that the still bottom waste will K181 wastes generated at dyes —CPMA’s survey encompassed wastes
exceed the mass loading limits for several production facilities and therefore, the generated in 2002, while ETAD did
constituents. Rather than going to the proposed mass loading cutoff of 10,000 not specify the time period covered by
expense of confirming this through testing kg/yr should be revised. ETAD also its survey. As such, these two sets of
representative samples of the waste, the indicated in its survey summary that survey quantity data may not be fully
facility decides to send the waste off site for
two dye production facilities use none compatible.
treatment at a subtitle C combustion facility.
Thus, this waste is also exempt from the of the proposed K181 listing —Three facilities making both dyes and
K181 listing because it is treated in a constituents in dyes production. pigments products responded to both
combustion unit permitted under Subtitle C. Furthermore, ETAD confirmed that two ETAD and CPMA surveys. However,
for the reported waste quantities
5. Waste Quantities 12 That is, a constituent of concern was possibly associated with these
As described in the proposal at 68 FR eliminated if the calculated allowable loading from facilities, there appears to be some
66176–66177, we estimated facility by risk modeling exceeds 10,000 kg/yr. discrepancies between ETAD’s and
13 The survey waste quantity results initially
facility nonwastewater quantities (for 37 included in ETAD’s February 23, 2004 comments
CPMA’s masked annual quantity data.
active organic dyes and/or pigment and attachments are annual quantities of —Three known Food, Drug and
production facilities known to the nonwastewaters relating to the manufacturing of in- Cosmetic (FD&C) colorant production
Agency at the time) by using scope dyes (i.e., specifically covered by the facilities were not covered by either
proposed rule). In response to our inquiry, ETAD the ETAD or CPMA survey.
engineering estimates of wastewater later submitted an amended summary of waste
treatment sludge generation rates and, quantities that include the other wastestreams We removed from the database the
wherever possible, facility-specific commingled with the in-scope wastes. two facilities using none of the
proposed K181 listing constituents, as aniline in a variety of wastes in our analytical data available for wastewater
well as the three facilities generating analysis of waste samples, it is reported treatment sludges; we reported in the
zero waste quantities, because they to be an intermediate in the production proposal three additional samples of
would not be impacted by the proposed of various products reported by U.S. ‘‘other nonwastewaters’’ that contain
rule. Next, we made assumptions in manufacturers in the Colour Index, it is aniline, with a maximum value of
trying to match the masked data points reported in the TRI by various known 180,000 ppm.15
for the three facilities that responded to dye and/or pigment manufacturers, it ETAD also argued that if EPA’s
both the ETAD and CPMA surveys in was reported to be a waste component estimated average waste quantity is
order to account for the overlap, using in the RCRA § 3007 survey and in adjusted to reflect the results of their
publicly available data and our best comments on our 1994 proposal, and is survey, the 10,000 kilograms/year (kg/
judgement. To revise our previous a known intermediate for various yr) screening level would be lower,
estimates of facility-specific waste products reported as available on the eliminating aniline as a potential CoC.
quantities, we adopted the specific Web sites of various U.S. dye and/or As discussed more fully in section
waste quantity data provided by the pigment manufacturers (see the Listing IV.A.5, we believe that the waste
commenting dyes/pigments Background Document). quantity that we used in the
manufacturers, made assumptions based In addition, ETAD and CPMA development of the proposal is well
on certain comments, and applied the comments on the November 2003 within the distribution of waste
estimated annual revenues to match the proposal provided recent survey data quantities reported by commenters, and
masked waste quantities with facilities. indicating that seven dye manufacturers we accordingly have not adjusted it.
Finally, we added the three facilities not use aniline in their processes, and that After considering the commenters’
covered by either the CPMA or ETAD four pigment manufacturers use this concerns, we believe that it is
survey, using waste quantities we CoC. Twelve pigment survey appropriate to retain the mass-loading
estimated for these facilities. The respondents also indicated that it is levels for aniline in today’s final rule.
consolidated data points created a set of present in their wastes. Further, b. o-Anisidine. We proposed to
annual waste quantities with high although CPMA stated that less than 25 include o-anisidine as a CoC because it
uncertainties for the potentially percent of U.S. pigment manufacturers is widely reported to be used in the
impacted dyes/pigment facilities. use aniline, nine pigment manufacturers manufacture of dyes and/or pigments.
In any case, we have analyzed the individually commented that aniline is We detected o-anisidine in several
commenters’ data and concluded that actually used or is likely present in their wastes in our analysis of waste samples,
the average estimated waste quantity we production of pigments. These data it is reported to be an intermediate in
used for the proposed rule (i.e., 1,894 confirm our position at proposal that the production of various products
MT/yr) is well within the distributions aniline is used widely in the reported by U.S. manufacturers in the
of values reported in comments; the manufacture of dyes and pigments. Colour Index, it is reported in the TRI
estimated value of 1,894 MT/yr is ETAD argued that the available by known dye and/or pigment
comparable to the 80th percentile value analytical data does not support a manufacturers, azo dyes derived from it
(1,815 MT/yr) of the consolidated data conclusion that aniline is likely to be are subject to regulation by the
set described above. For a detailed present in dye wastes at levels European Union (EU), and it is a known
analysis of the commenters’ data, see exceeding the proposed listing level. intermediate for products reported as
the Response to Comments Background One commenter (BASF) noted that the available on the Web sites of several
Document, available in the public maximum concentration of aniline in U.S. dye and/or pigment manufacturers
docket for today’s final rule. wastewater treatment sludges reported (see the Listing Background Document).
Based on our analysis of the in the proposal (31,000 ppm) was from In addition, ETAD and CPMA
commenters’ waste quantity data, and in their process, and reflects a process comments on the November 2003
view of the data uncertainty in the waste that was eliminated from their proposal provided recent survey data
ETAD and CPMA surveys, we continue manufacturing process in 1996. indicating that three dye manufacturers
to believe that it is reasonable to retain While we agree with ETAD and BASF and two pigment manufacturers use o-
the proposed mass loading cutoff of that the available analytical data (as anisidine in their processes. Further,
10,000 kg/yr for eliminating described in the proposal) are older, five CPMA survey respondents reported
constituents from consideration. these data do provide a snapshot in time this CoC being present in their wastes as
of the composition of wastes from the a contaminant. Six pigment
6. Prevalence of Constituents of Concern manufacture of dyes and/or pigments. manufacturers (which represent 11
Commenters submitted critiques of BASF did not provide a profile of their facilities manufacturing in-scope
each of the CoCs, arguing that they do currently generated wastes, so it is not pigments) also indicated in their
not warrant inclusion in the final possible to ascertain whether other individual comments that o-anisidine is
listing. With the exception of the wastes generated from their process(es) actually used or likely to be present in
arguments submitted for toluene-2,4- are as contaminated as the stream that their pigment processes.
diamine (as discussed in a prior section was eliminated in 1996. BASF did, ETAD argued that o-anisidine is only
of this notice), EPA has concluded that however, provide in their comments a used or generated at 3 of 15 dye
our basis for setting standards for the risk assessment of releases from their production facilities. CPMA stated that
seven CoCs is valid. The comments for onsite boiler.14 This risk assessment it is only used in the production of
these seven CoCs and our responses are contains limited waste characterization pigments by less than 25 percent of U.S.
summarized below, and provided in data which depicts aniline pigment manufacturers. We believe,
more detail in the Response to concentrations in their boiler feed even however, that these usage rates are not
Comments Background Document in the higher than the levels observed in most insignificant, particularly for an
docket for today’s final rule. of the available analytical data (1.45%
15 See the aggregated EPA data in Appendix I of
a. Aniline. We proposed to include aniline). We note also that the
the Background Document for Identification and
aniline as a CoC because it is widely commenters focused solely on the Listing of Wastes from the Production of Organic
reported to be used in the manufacture Dyes and Pigments, which is in the docket for
of dyes and/or pigments. We detected 14 See Comment RCRA–2003–0001–0258. today’s rule.
industry known to manufacture a wide wastes could potentially exceed the respect to the comments on the risk
variety of products over time and K181 loading limits. assessment, we do not believe this is an
between companies using batch ETAD further asserts that their newly unreasonable time frame.
operations. Further, as noted above, six collected data show that the median In conclusion, we have determined
pigment manufacturers also reported volume of o-anisidine is zero, and the that our basis for including o-anisidine
using or generating this CoC. Therefore, maximum reported volume is less than in the listing is sound, and we are
the available information indicates that one percent of the proposed mass finalizing the o-anisidine level as
o-anisidine is likely to be present in loading. We do not believe these proposed.
dye/pigment wastes, and it is reasonable statistics are particularly meaningful. c. 4-Chloroaniline. We proposed to
to keep this as a constituent of concern. First, the commenter provided very include 4-chloroaniline as a CoC
Moreover, even if o-anisidine were little information about the nature of its because it is reported to be used in the
considered infrequently used, EPA data. For example, it is unclear what manufacture of dyes and/or pigments.
would still consider that o-anisidine year the data reflect, or even if they We detected 4-chloroaniline in a variety
met the listing criteria set out in represent the same calendar year among of wastes in our analysis of waste
§ 261.11. ETAD’s survey respondents. Also, samples, it is reported in the TRI by a
ETAD noted that o-anisidine was only ETAD provided no information known dye and/or pigment
detected in one sample, and that the regarding the variability of these data manufacturer, and azo dyes derived
sample is outdated and of limited value over time (e.g., were the data from it are subject to regulation by the
as it was qualified as a ‘‘J’’ value 16 and representative of typical operations? Are EU (see the Listing Background
difficult to differentiate from 2-/4- there relevant trends in the use of raw Document).
materials?). In an industry that produces In addition, ETAD and CPMA
aminoaniline. We agree that the
a very diverse range of products from comments on the November 2003
particular analytical result noted is an
plant to plant and from year to year, we proposal provided recent survey data
insufficient basis by itself to include o-
would not expect that the majority of indicating that two dye manufacturers
anisidine in the K181 listing. However, use 4-chloroaniline in their processes,
we have other sources that confirm that manufacturers would utilize any one of
the K181 constituents at any given time. and that one pigment manufacturer also
this constituent is used by a number of uses this CoC, although not in a process
generators in the manufacture of Thus, the commenter’s findings of a
median value of zero is not surprising covered by the scope of the proposed
relevant colorants. We note that o- K181 listing.
or relevant. Similarly, the commenter
anisidine was also tentatively identified ETAD argued that 4-chloroaniline is
did not provide sufficient information
in four wastewater samples in the data only used or generated at 2 of 15 dye
regarding their assertion that there are
summary presented in the proposal’s production facilities. We believe that
no dye manufacturers whose mass
Listing Background Document, and that this is not an insignificant response,
loading of o-anisidine in their wastes
the ETAD and CPMA surveys confirm particularly for an industry known to
exceed 1 percent of the K181 limit for
that this constituent is still in use at a manufacture a wide variety of products
us to remove this constituent from the
number of their members’ facilities. over time at companies using batch
listing, given all the information
ETAD noted that o-anisidine was not supporting this constituent. The operations. Therefore, the available
reported in the RCRA § 3007 survey. We commenter did not provide any information indicates that 4-
note that the survey data used to information on how the survey chloroaniline is likely to be present in
support the proposal represented a respondents determined mass loadings dye/pigment wastes, and it is reasonable
limited subset of the census survey (i.e., of o-anisidine or other constituents in to keep this as a constituent of concern.
those surveys without CBI claims), and their waste, so we have no way of Moreover, even if 4-chloroaniline were
may not be fully indicative of waste judging the validity of such claims. We considered infrequently used, EPA
composition. also expect that any given facility’s raw would still consider that 4-chloroaniline
ETAD also argued that there is no material slate will change over time in met the listing criteria set out in
evidence that either the calculated response to market demands for § 261.11.
theoretical average concentration of o- different colors and product ETAD noted that 4-chloroaniline was
anisidine (58 ppm) or the average waste characteristics. Retaining this only detected in two samples. We point
volume of 1,894 MT/yr (described in the constituent in the listing provides a out, however, that 4-chloroaniline was
proposal’s Listing Background clear incentive for generators to make also identified in two wastewater
Document) occurs in dyes production choices in their manufacturing samples and one ‘‘other nonwastewater’’
wastes. We agree that the data available processes to avoid excessive levels of o- sample in the data summary presented
to the Agency do not identify specific anisidine in their wastes. We note that in the proposal’s Listing Background
wastes that would exceed the listing there are three facilities that reported o- Document, and that CPMA had reported
levels. Nevertheless, given the format of anisidine in Form A under TRI. Form A the presence of this constituent in three
the proposed rule (i.e., a mass loadings- is used for chemicals with releases split samples of the noted data. In
based listing), we believe that such data below 500 pounds per year (as well as addition, several commenters on prior
are not critical. Instead, we have other restrictions related to usage proposals for these wastes described the
demonstrated that the range of both volume). The K181 mass loading level presence of this CoC in their wastes.
expected waste quantities and organic for o-anisidine is 110 kg, or 242 pounds, Further, the ETAD survey confirms that
waste constituent concentrations are thus it is possible that these three this constituent is currently in use at
broad enough that CoC levels in real facilities are above or near the K181 several of their members’ facilities.
level. ETAD also pointed out that the
16 ‘‘J’’ values are chemical concentrations that Finally, ETAD also argued that referenced TRI data are limited to a
were detected below the analytical reporting limit, because the groundwater modeling single report in a single year. Bayer, the
but above the limit of detection for the method results indicated that the time-to-impact company that reported this TRI release,
used. See OSW’s methods manual, especially
Chapter 1, Quality Control; ‘‘Test Methods for
is more than 250 years for o-anisidine, explained in their comments that 4-
Evaluating Solid Waste, Physical/Chemical this constituent should be excluded chloroaniline is not used by any covered
Methods, SW–846.’’ from the listing. As discussed later with dyes process and was never present in
the wastewater or wastewater treatment in section IV.A.5, we believe that the sampling and analysis data or RCRA
sludge generated at the facility of waste quantity that we used in the section 3007 survey data demonstrating
interest (Bushy Park, SC). While this development of the proposal is well its presence in wastes. We acknowledge
may be the case, it is not clear whether within the distribution of waste that p-cresidine was not detected in any
4-chloroaniline is used in pigment quantities reported by commenters, and of the samples collected in support of
production at this site as the pigment we accordingly have not adjusted it. the 1994 rulemaking. However, the
operations were sold to Sun Chemical in Similarly, we believe that the assumed sampling was conducted at a subset of
January 2003.17 plausible maximum constituent the manufacturing sites in operation at
In addition, ETAD argued that the concentration is appropriate, noting that that time, and thus it is likely that these
Agency’s basis for regulating this we considered analytical data for both data are an incomplete profile of
constituent is weak because there are no ‘‘wastewater treatment sludge’’ and potential waste composition. In fact, the
references to the use of this chemical in ‘‘other nonwastewaters,’’ while the commenter’s own data indicate that four
the Colour Index, or in the RCRA § 3007 commenter appears to be focused only dye manufacturers currently use p-
survey. We acknowledge both points, on the wastewater treatment sludge cresidine as an intermediate, and thus
but note that the Colour Index, while data. The data for ‘‘other the likelihood that this CoC exists in
very useful, provides an incomplete nonwastewaters’’ show several wastes at these sites is high. As
compendium of intermediates used in constituents with concentrations in the mentioned previously, the § 3007 data
the production of dyes and pigments, thousands of parts per million. presented in the proposal represents
particularly for those products that have In conclusion, we have determined that portion of the data which were not
only recently been brought to market. that our basis for including 4- subject to any confidentiality claims
Furthermore, the information presented chloroaniline in the listing is sound, and, therefore, does not represent a
in the Colour Index is limited by certain and we are finalizing the 4- complete profile of reported waste
confidentiality concerns manufacturers chloroaniline level as proposed. constituents.
may have for colorants produced. In our d. p-Cresidine. We proposed to In addition, ETAD argued that the TRI
research of products reported by include p-cresidine as a CoC because it data does not support inclusion of p-
manufacturers on their Web sites and is reported to be used in the cresidine because only one Form R and
those listed in the Colour Index, there manufacture of dyes and/or pigments. p- one Form A were submitted. However,
were many products for which no Cresidine is reported to be an
we believe that it is significant that the
intermediate information was available. intermediate in the production of
TRI data confirm that current
Further, the Colour Index does in fact various products reported by U.S.
manufacturers of impacted colorants do
identify a number of manufacturers that manufacturers in the Colour Index, it is
use and release this CoC, supporting our
produce colorants derived from 4- reported in the TRI by a known dye
basis for including p-cresidine in the
chloroaniline (e.g., CI 37510, 37610), and/or pigment manufacturer, azo dyes
K181 listing.
although none of them appear to be derived from it are subject to regulation
by the EU, and it is a known Further, ETAD argued that there is no
based in the U.S. This information
intermediate for several products evidence that either the calculated
implies that a market exists for these
reported as available on the website of theoretical average concentration of p-
products, and U.S. manufacturers might
a U.S. dye and/or pigment manufacturer cresidine (348 ppm) or the average
produce these colorants. With respect to
(see the Listing Background Document). waste volume of 1,894 MT/yr (described
the lack of § 3007 survey data, we have
In addition, ETAD and CPMA in the proposal’s Listing Background
previously described the incomplete
comments on the November 2003 Document) occurs in dyes production
nature of the survey data available for
proposal provided recent survey data wastes. ETAD asserts that their newly
use in the proposed rule.
Furthermore, ETAD argued that there indicating that four dye manufacturers collected data show that the median
is no evidence that either the calculated use p-cresidine in their processes, and volume of p-cresidine is zero, and the
theoretical average concentration of 4- that two pigment manufacturers also use maximum reported volume is less than
chloroaniline (2,534 ppm) or the average this CoC (although these uses may be one percent of the proposed mass
waste volume of 1,894 MT/yr (described from onsite dye manufacture). loading. We refer the reader to our
in the proposal’s Listing Background ETAD argued that p-cresidine is only earlier responses to similar comments
Document) occurs in dyes production used or generated at 4 of 15 dye on o-anisidine.
wastes. ETAD asserts that their newly production facilities. As noted Moreover, ETAD also argued that if
collected data show that the median previously, we believe that this is not EPA’s estimated average waste quantity
volume of 4-chloroaniline is zero, and insignificant, particularly for an is adjusted to reflect the results of their
the maximum reported volume is less industry known to manufacture a wide survey and the assumed plausible
than one percent of the proposed mass variety of products over time at maximum constituent concentration
loading. We refer the reader to our companies using batch operations. Two (5,000 ppm) were more reasonable, the
earlier responses to similar comments pigment facilities were reported by 10,000 kg/yr screening level would be
on o-anisidine. CPMA to also use or generate this CoC. lower, eliminating p-cresidine as a
Finally, ETAD also argued that if Therefore, the available information potential CoC. We refer the reader to our
EPA’s estimated average waste quantity indicates that p-cresidine is likely to be earlier response to a similar comment
is adjusted to reflect the results of their present in dye/pigment wastes, and it is on 4-chloroaniline.
survey and the assumed plausible reasonable to keep this as a constituent Finally, ETAD argued that because the
maximum constituent concentration of concern. Moreover, even if p- groundwater modeling results indicated
(5,000 ppm) were more reasonable, the cresidine were considered infrequently that the time-to-impact is more than 250
10,000 kg/yr screening level would be used, EPA would still consider that p- years for p-cresidine, this constituent
lower, eliminating 4-chloroaniline as a cresidine met the listing criteria set out should be excluded from the listing. As
potential CoC. As discussed more fully in § 261.11. discussed later with respect to the
ETAD also argued that p-cresidine comments on the risk assessment, we do
17 http://www.timesleader.com/mld/timesleader/ should be removed as a basis for the not believe this is an unreasonable time
5122083.htm. listing in part because there are no frame.
In conclusion, we have determined ETAD also suggests that our basis for In conclusion, we have determined
that our basis for including p-cresidine including this constituent as a basis for that our basis for including 2,4-
in the listing is sound, and we are the listing is weakened because we dimethylaniline in the listing is sound,
finalizing the p-cresidine level as presented no linkages to the TRI, the and we are finalizing the 2,4-
proposed. Colour Index (or similar sources), or the dimethylaniline level as proposed.
e. 2,4-Dimethylaniline. We proposed EU ban for this constituent. First, we f. 1,2-Phenylenediamine. We
to include 2,4-dimethylaniline as a CoC would note that 2,4-dimethylaniline is proposed to include 1,2-
because it is reported to be used in the not listed in section 313 of the phenylenediamine as a CoC because it
manufacture of dyes and/or pigments. Emergency Planning and Community is reported to be used in the
We detected 2,4-dimethylaniline in Right-to-Know Act (EPCRA), and thus is manufacture of dyes and/or pigments.
several wastes, it was reported to be a not subject to TRI reporting. With We detected 1,2-phenylenediamine in
waste component in the RCRA § 3007 respect to the Colour Index, this source several wastes in our analysis of waste
survey, and it is a known intermediate does in fact identify a number of samples, it is reported to be an
for several products reported as manufacturers that produce azo intermediate in the production of
available on the websites of several U.S. colorants derived from 2,4- various products reported by U.S.
dye and/or pigment manufacturers (see dimethylaniline (e.g., CI 14900, 16150, manufacturers in the Colour Index, it
the Listing Background Document). 29105), although none of them appear to was reported in the TRI by known dye
In addition, ETAD and CPMA be based in the U.S.18 This information and/or pigment manufacturers, and it is
comments on the November 2003 implies that a market exists for these a known intermediate for several
proposed rule provided recent survey products, and U.S. manufacturers might products reported as available on the
data that two dye manufacturing in the future choose to produce these websites of several U.S. dye and/or
facilities report the use of this CoC, and colorants. Finally, with respect to the pigment manufacturers (see the Listing
confirming the presence of 2,4- EU ban [Directive for a Community Ban Background Document).
dimethylaniline in wastes at two on Azocolourants (76/769/EEC, Annex I, In addition, ETAD and CPMA
pigment manufacturing facilities. Six point 43)], as discussed in the proposal, comments on the November 2003
pigment manufacturers indicated in this constituent has been studied for proposal provided recent survey data
their individual comments that this possible inclusion in a related ban of indicating that two dye manufacturers
constituent is actually used or likely certain compounds in cosmetics and is use 1,2-phenylenediamine in their
present in their production of pigments. regulated as a class 2 carcinogen in processes, and that two pigment
ETAD argued that 2,4-dimethylaniline Germany.19 manufacturers also use this CoC. Two
is only used or generated at 2 of 15 dye In addition, ETAD argued that there is pigment manufacturers also indicated in
production facilities. CPMA stated that no evidence that either the calculated their individual comments that it is
it is only used in the production of theoretical average concentration of 2,4- present in their wastes (although
pigments by less than 25 percent of U.S. dimethylaniline (53 ppm) or the average possibly not from in-scope pigment
pigment manufacturers. We believe, waste volume of 1,894 MT/yr (described processes).
however, that these usage rates are not in the proposal’s Listing Background ETAD argued that 1,2-
insignificant, particularly for an Document) occurs in dyes production phenylenediamine is only used or
industry known to manufacture a wide wastes. We refer the reader to our earlier generated at 2 of 15 dye production
variety of products over time and at response to a similar comment on o- facilities. We believe that this is not
companies using batch operations. anisidine. insignificant, particularly for an
Further, we note that CPMA has Furthermore, ETAD asserts that their industry known to manufacture a wide
confirmed that this CoC is a waste newly collected data show that the variety of products over time at
component at two pigment facilities, median volume of 2,4-dimethylaniline companies using batch operations. In
and that six pigment manufacturers is zero, and the maximum reported addition, CPMA has confirmed that this
have specifically confirmed that 2,4- volume is less than one percent of the CoC is a waste component at two
dimethylaniline is relevant to their proposed mass loading. We refer the pigment facilities, and that it is used in
processes and/or wastes. Therefore, the reader to our earlier response to a the production of pigments at two
available information indicates that 2,4- similar comment on o-anisidine. facilities. Therefore, the available
dimethylaniline is likely to be present Finally, ETAD argued that because the information indicates that 1,2-
in dye/pigment wastes, and it is groundwater modeling results indicated phenylenediamine is likely to be
reasonable to keep this as a constituent that the time-to-impact is more than 250 present in dye/pigment wastes, and it is
of concern. Moreover, even if 2,4- years for 2,4-dimethylaniline, this reasonable to keep this as a constituent
dimethylaniline were considered constituent should be excluded from the of concern. Moreover, even if 1,2-
infrequently used, EPA would still listing. As discussed later with respect phenylenediamine were considered
consider that 2,4-dimethylaniline met to the comments on the risk assessment, infrequently used, EPA would still
the listing criteria set out in § 261.11. we do not believe this is an consider that 1,2-phenylenediamine met
ETAD argued that our basis for unreasonable time frame. the listing criteria set out in § 261.11.
including this constituent is weakened ETAD also argued that the TRI data
because this CoC was not detected in 18 One U.S. company, Bernscolor (Poughkeepsie, does not support inclusion of 1,2-
nonwastewaters. While we confirm this NY), is listed in the Colour Index as marketing CI phenylenediamine because only one
specific observation, we note that 2,4- 16150, however, neither trade association identified Form A was submitted for one year.
dimethylaniline was detected in this facility as manufacturing in-scope dyes and/or
pigments.
While it is true that only one Form A
wastewaters by EPA, and CPMA 19 Studied by EU in the context of Directive 76/ was reported, the TRI data confirm that
reported this chemical in split sample 768/EEC: SCCNFP/0495/01, Opinion of the there is current use and release of this
analyses. These data support EPA’s Scientific Committee on Cosmetic Products and CoC, supporting our basis for including
finding that this constituent may Non-Food Products Intended for Consumers 1,2-phenylenediamine in the K181
concerning ‘‘The Safety Review of the Use of
reasonably be expected to be present in Certain Azo-Dyes in Cosmetic Products,’’ 2/27/02. listing.
some wastes from the production of http://europa.eu.int/comm/food/fs/sc/sccp/ In addition, ETAD argued that 1,2-
dyes and/or pigments. out155_en.pdf. phenylenediamine should not be
included as a basis for this listing in phenylenediamine as a potential CoC. that time, and thus it is likely that these
part because there are no RCRA § 3007 We refer the reader to our earlier data are an incomplete profile of
survey data demonstrating its presence response to a similar comment on 4- potential waste composition. The
in wastes. As mentioned previously, the chloroaniline. commenter’s own data indicate that
§ 3007 data presented in the proposal In conclusion, we have determined three dye manufacturers currently use
represent that portion of the data which that our basis for including 1,2- 1,3-phenylenediamine as an
were not subject to any confidentiality phenylenediamine in the listing is intermediate, providing further
claims and, therefore, does not represent sound, and we are finalizing the 1,2- confirmation that this CoC exists in
a complete profile of reported waste phenylenediamine level as proposed. wastes at these sites.
constituents. In fact, ETAD’s (and g. 1,3-Phenylenediamine. We In addition, ETAD also argued that
CPMA’s) own data indicate that a proposed to include 1,3- there is no evidence that either the
number of dye and/or pigment phenylenediamine as a CoC because it calculated theoretical average
manufacturers currently use 1,2- is reported to be used in the concentration of 1,3-phenylenediamine
phenylenediamine as an intermediate, manufacture of dyes and/or pigments. (634 ppm) or the average waste volume
providing further confirmation that this Specifically, 1,3-phenylenediamine is of 1,894 MT/yr (described in the
CoC exists in wastes at these sites. reported to be an intermediate in the proposal’s Listing Background
Furthermore, ETAD noted that 1,2- production of various products reported Document) occurs in dyes production
phenylenediamine was only detected in by U.S. manufacturers in the Colour wastes. We refer the reader to our earlier
one sample, and that the sample is Index, it was reported in the TRI by a response to a similar comment on o-
outdated and of limited value as it was known dye and/or pigment anisidine.
qualified as a ‘‘J’’ value, and difficult to manufacturer, it was reported to be a Furthermore, ETAD asserts that their
differentiate from 1,4-phenylenediamine waste component in the RCRA § 3007 newly collected data show that the
and o-anisidine. We agree that the survey, and it is a known intermediate median volume of 1,3-
particular analytical result noted is for several products reported as phenylenediamine is zero, and the
insufficient by itself to be a basis to available on the websites of several U.S. maximum reported volume is less than
include 1,2-phenylenediamine in the dye and/or pigment manufacturers (see 10 percent of the proposed mass
K181 listing. However, we have other the Listing Background Document). loading. We refer the reader to our
sources of information that confirm that In addition, ETAD and CPMA earlier response to a similar comment
this constituent is used by a number of comments on the November 2003 on o-anisidine, and note that ‘‘10
generators in the manufacture of proposal provided recent survey data percent’’ is not insignificant—process
relevant colorants. We note that 1,2- indicating that three dye manufacturers changes or stepped up production
phenylenediamine was also tentatively use 1,3-phenylenediamine in their volumes might increase this maximum
identified in four wastewater samples in processes, and that one pigment value to exceed the K181 loading limit.
the data summary presented in the manufacturer indicated that it is present Finally, ETAD argued that if EPA’s
proposal’s Listing Background in their wastes (although not from in- estimated average waste quantity is
Document. Two comments on the scope pigment processes). adjusted to reflect the results of their
earlier proposed listing determination ETAD argued that 1,3- survey and the assumed plausible
for these wastes also refer to the use or phenylenediamine is only used or maximum constituent concentration
presence of this constituent in the generated at three of 15 dye production (5,000 ppm) were more reasonable, the
wastes of concern. In addition, the facilities. We believe that this is not 10,000 kg/yr screening level would be
ETAD and CPMA surveys confirm that insignificant, particularly for an lower, eliminating 1,3-
this constituent is currently in use at a industry known to manufacture a wide phenylenediamine as a potential CoC.
number of their members’ facilities. variety of products over time at We refer the reader to our earlier
Moreover, ETAD argued that there is companies using batch operations. In response to a similar comment on 4-
no evidence that either the calculated addition, the available RCRA § 3007 chloroaniline.
theoretical average concentration of 1,2- survey results indicate that this In conclusion, we have determined
phenylenediamine (375 ppm) or the constituent was reported by industry in that our basis for including 1,3-
average waste volume of 1,894 MT/yr at least 17 in-scope discrete phenylenediamine in the listing is
(described in the proposal’s Listing wastestreams. Therefore, the available sound, and we are finalizing the 1,3-
Background Document) occurs in dyes information indicates that 1,3- phenylenediamine level as proposed.
production wastes. We refer the reader phenylenediamine is likely to be
present in dye/pigment wastes, and it is 7. Availability of Analytical Methods for
to our earlier response to a similar
reasonable to keep this as a constituent Constituents of Concern
comment on o-anisidine.
ETAD also asserts that their newly of concern. Moreover, even if 1,3- Commenters contend that EPA did
collected data show that the median phenylenediamine were considered not adequately address the availability
volume of 1,2-phenylenediamine is infrequently used, EPA would still of analytical methods necessary to
zero, and the maximum reported consider that 1,3-phenylenediamine met implement the proposed rule. The
volume is less than one percent of the the listing criteria set out in § 261.11. commenters pointed out that EPA’s
proposed mass loading. We refer the ETAD also argued that 1,3- economic analysis suggested that four
reader to our earlier response to a phenylenediamine should not be proposed constituents (toluene-2,4-
similar comment on o-anisidine. included as a basis for the listing in part diamine, 1,2-phenylenediamine, 1,3-
Finally, ETAD argued that if EPA’s because there are no sampling and phenylenediamine, and 2,4-
estimated average waste quantity is analysis data demonstrating its presence dimethylaniline) lack established
adjusted to reflect the results of their in wastes. We acknowledge that 1,3- analytical methods. Most commenters
survey and the assumed plausible phenylenediamine was not detected in were especially concerned with the lack
maximum constituent concentration any of the samples collected in support of a verified method for one of the four
(5,000 ppm) were more reasonable, the of the 1994 rulemaking. However, the constituents, toluene-2,4-diamine. One
10,000 kg/yr screening level would be sampling was conducted at a subset of commenter also expressed concern
lower, eliminating 1,2- the manufacturing sites in operation at specifically over the lack of methods for
1,2-phenylenediamine. Commenters method is adequate for 1,3- The Generic Soil Column Model
questioned the adequacy of the methods phenylenediamine. This is further (GSCM) is a critical submodel or
for analyzing another proposed supported by an EPA technical paper algorithm that predicts the fate and
constituent (aniline). They referred to showing that 1,3-phenylenediamine can transport of constituents within the
previous studies that indicated gas be determined using GC/MS methods.22 landfill and partitions contaminants to
chromatography methods may cause As noted by the commenters, this same three phases: adsorbed (solid), dissolved
false positive readings for aniline, technical paper describes the (liquid), and gaseous.
because another chemical sometimes breakdown of the chemical Commenters contended that the
present (acetoacetanilide) often breaks acetoacetanilide to aniline during GC/ GSCM is under review by the EPA’s
down into aniline in the analysis. MS analysis. While this could Science Advisory Board (SAB) and that
We continue to believe that adequate theoretically present difficulties in the SAB panel identified significant
analytical methods exist for most CoCs. determining a precise concentration of errors that are expected to produce
However, as described previously, we aniline in wastes that also contain erroneous results. The commenters
have decided to no longer include acetoacetanilide, generators may deal expected that the SAB panel would
toluene-2,4-diamine as a constituent of with this potential problem in several recommend that EPA not use the GSCM
concern for K181. Therefore, analysis of ways. The technical paper cited above to make any regulatory decisions until
this chemical will not be necessary. shows that aniline may also be a more thorough evaluation, including
Concerning 1,2-phenylenediamine, we determined by other methods, i.e., High reanalysis of the underlying model code
noted the problems with this Performance Liquid Chromatography is completed. As a result, the
constituent in the proposed rule (68 FR (HPLC) methods. HPLC methods do not commenters argued that it is
66194). We have reexamined the require the high temperatures needed unacceptable for EPA to use the GSCM
available EPA methods and determined for GC/MS analysis; thus, the presence to make regulatory decisions for the
that, while some methods (e.g., SW–846 of acetoacetanilide should not present dyes manufacturing industry. The
method 8321B) show promise, the any problems. Alternatively, a generator commenters noted that EPA has
recoveries remain low. Thus, we have could conduct the GC/MS analysis, performed limited comparison
decided to allow generators to use their recognizing that some of the aniline simulations between the GSCM and
knowledge of the waste instead of detected may arise from the breakdown another model (MODFLOW–SURFACT).
determining the level of this constituent of acetoacetanilide. If the measured While the results from this comparison
through testing. We have revised the aniline in the waste is still below the indicated that the two simulations yield
final K181 regulatory language to reflect aniline loading limit for K181, then the similar results, the commenters stated
this change in the testing requirements waste would not be a hazardous waste that the tests completed by EPA
by inserting (d)(3)(ii), which reads: due to aniline. Because the loading limit represent only a simple and potential
for aniline is rather high (9,300 kg/yr), worst-case scenario that does not test
(d)(3)(ii) If 1,2-phenylenediamine is soil zone complexity. Although uniform
present in the wastes, the generator can use
there would have to be a high level of
either knowledge or sampling and analysis acetoacetanilide present in the waste to soil zone properties are expected to
procedures to determine the level of this cause any significant problem. In any result in maximum leaching, the
constituent in the wastes. For determinations case, the generators have the option of commenters argued that EPA should
based on use of knowledge, the generator using the HPLC method if they believe also complete an evaluation of the
must comply with the procedures for using that aniline levels would approach the GSCM under conditions with significant
knowledge described in paragraph (d)(2) and mass loading limit, and if they know heterogeneity.
keep the records described in paragraph that the waste contains acetoacetanilide. We continue to believe that the use of
(d)(2)(iv) of this section. For determinations the GSCM is appropriate and does not
based on sampling and analysis, the 8. Risk Assessment produce erroneous results. In the final
generator must comply with the sampling The Agency received comments on a SAB report,23 the SAB acknowledged
and analysis and recordkeeping requirements
described below in this section.
number of issues that focused on the that 3MRA—in its current state—could
risk analysis that EPA conducted for the be used to support regulatory decisions
We believe that the other constituents proposed K181 listing determination. for national exit concentrations.
have adequate methods. While 2,4- The most significant of these comments, However, the SAB also recognized that
dimethylaniline is not included as an summarized below, pertain to the 3MRA is the product of a collection of
analyte in EPA’s SW–846 manual of General Soil Column Model, submodels (which includes the GSCM)
methods, the chemical has been biodegradation rates, infiltration rates, and that any regulatory decisions that
measured in dye and pigment waste well distance, hydraulic conductivity, rely on 3MRA will reflect the
samples by both EPA 20 and by simulation durations and exposure uncertainty and the limitations of these
industry.21 As the 2003 BDAT parameters. We have developed models. The SAB panelists conducted a
background document indicated, the responses for all of the public comments thorough evaluation of the GSCM and
standard EPA gas chromatography/mass received on the proposed rule. The agreed with the EPA’s thoughts on the
spectrum method (GC/MS method 8270) verbatim comments and our responses strengths and limitations of the GSCM.
should be effective for this constituent. are provided in the Response to The SAB pointed out that the GSCM—
We are also confident that this GC/MS Comments Background Document in the as compared to some of the legacy
docket for today’s rule. models in 3MRA—‘‘is relatively
20 See the aggregated EPA data in Appendix I of
a. General Soil Column Model untested and has some potential (italics
the Background Document for Identification and (GSCM). The landfill model that we
Listing of Wastes from the Production of Organic
added) theoretical inadequacies.’’ The
Dyes and Pigments, which is in the docket for
used approximates the dynamic effects SAB review goes on to report on several
today’s rule. of the gradual filling of active landfills. model evaluation studies (e.g.,
21 See final table in the industry data attached to
the Letter from J. Lawrence Robinson, President of 22 See the technical paper attached to the Letter 23 Report of the U.S. EPA Science Advisory Board
the CPMA, to Ed Abrams of EPA, regarding from J. Lawrence Robinson, President of the CPMA, Review Panel; EPA’s Multimedia, Multipathway,
aggregated test data resulting from analyses of the to Ed Abrams of EPA, regarding aggregated test data and Multireceptor Risk Assessment (3MRA)
split samples, April 20, 1994, in the docket for resulting from analyses of the split samples, April Modeling System; EPA–SAB–05–003, November
today’s rule. 20, 1994, in the docket for today’s rule. 2004 (http://www.epa.gov/sab/fiscal04.htm).
conducting model-to-model studies and reference,24 and when degradation data to be used as a landfill design tool to
comparing estimated and experimental were not available, we used degradation evaluate the merits of different design
data) conducted by EPA, suggesting that rates based on surrogate chemicals. This alternatives, and (2) the HELP model
these types of studies are important reference provides ranges of half lives in has been found to overestimate
steps in building confidence in the environmental media and the Agency infiltration rates at landfills and to
model and increasing our understanding acknowledges there is considerable erroneously predict the timing of events.
of the limitations of the GSCM. uncertainty associated with these data. As we described in the proposal, we
One of the major theoretical issues Where available, the authors use based the composite liner scenario on
raised by the SAB was the concern with preferred data from experimental infiltration rates extracted from the
the GSCM’s ability to produce reliable values. However, in cases where TetraTech report for composite lined
experimental values were not available, landfill units, i.e., units with a
leachate profiles for short time scales;
scientific judgements were made in combination of geomembrane (GM) and
that is, less-than-annual chemical
order to estimate a value. The amount clay liners (compacted clay, CCL, or
concentration profiles for leachate.
of biodegradation that occurs will also geosynthetic clay, GCL). We screened
However, the Agency’s risk assessment
vary depending on various site-specific the data to yield a data set of forty
of waste from dye and/or pigment
environmental parameters, including infiltration rates. The composite liner
manufacture is based on long-term
temperature, pH, and available biomass. scenario represented only those rates
chronic exposures and, therefore, the
In light of these uncertainties, we from the screened set of rates and, thus,
concentrations at the point of exposure
believe that it is prudent to use the high we did not use rates from single
are averaged according to the exposure
value in the range of values presented synthetic liners in this analysis. We
duration for each receptor. In particular, rather than to use an average value as
the comparison between the GSCM and then generated the specific values used
suggested by the commenters. for modeling the composite liner
MODFLOW/SURFACT (a widely used c. Landfill Infiltration Rates. Our
flow and transport simulator) scenario through interpolation using the
modeling for landfills included analyses available forty infiltration rates. Thus,
demonstrated that long-term, average for both clay liner and composite liner
leachate concentration profiles the interpolated values are a
scenarios. For the clay-liner scenario, representative distribution of the forty
generated by the GSCM were similar to we used the existing databases of
those generated by the more robust rates and do not reflect single synthetic
landfill infiltration rates and ambient liners. Finally, we also note that we are
solution technique used in MODFLOW– regional recharge rates calculated using
SURFACT. Thus, the comparison not using the composite liner results to
the Hydrologic Evaluation of Landfill set mass-loading levels since we have
between the GSCM and MODFLOW– Performance (HELP) water-balance
SURFACT demonstrated that the decided to no longer include toluene-
model. For the composite liner scenario, 2,4-diamine as a constituent of concern
theoretical limitations in the GSCM do we used empirical distributions of
not appear to be significant when for K181.
infiltration rates for composite-lined Regarding the HELP model, the
generating annual averages for the landfills compiled in a recent report Agency used the model to determine
purposes of estimating long-term (TetraTech report).25 infiltration rates through capped
potential risks to humans and ecological The commenters stated that they unlined and clay lined landfills
receptors for the dyes and pigments identified several errors and hypothetically sited at each of the 102
assessment. inconsistencies with the infiltration climate stations available in the model.
b. Biodegradation. Within the landfill, estimates used to predict downgradient Neither permeability nor leak density
we simulated losses of mass through concentrations. The commenters were included as parameters in these
anaerobic biodegradation (i.e., indicated that the composite liner simulations. EPA used the HELP model,
degradation processes that occur in an infiltration rates EPA used in the
in conjunction with data from climate
oxygen-free environment). In the modeling analysis were not consistent
stations across the United States, to
absence of biodegradation data for seven with the infiltration rates shown in the
develop recharge and infiltration rate
organic chemicals, we used surrogate TetraTech report. The commenters
distributions for different liner
information for similar compounds. claimed that EPA incorrectly used
designs.26 Further, the landfills
Commenters generally supported the infiltration rates for the single synthetic
modeled in this analysis were consistent
use of surrogates and the liner instead of the infiltration rates for
with standard design practices, and
appropriateness of considering the composite liner. One commenter
similar to the type of landfill HELP was
biodegradation in anaerobic landfill noted that the Risk Assessment
designed to simulate. The Agency used
conditions. However, commenters Background Document provides a leak
the HELP model to estimate long-term
believed that EPA overestimated density variable, as well as an
infiltration rates based on the historical
concentrations at receptor wells, infiltration rate for landfills, suggesting
data available with the model. Recent
because EPA used the maximum half- that infiltration rates through the liner
evaluations of actual leachate generation
life from the available data (i.e., we used are calculated. Thus, the commenter
rates have shown that the HELP model
the slowest degradation rates). suggested that EPA clarify exactly how
can also be a very good approximation
Commenters suggested that it would be leachate curves are estimated. The
of actual conditions.
more appropriate to use average values commenter also stated that the HELP
d. Well Distance. The commenters
for the half-life. model is not an appropriate tool to
contended that the information on well
determine liner percolation rates
We continue to believe that our use of distance from EPA’s National Survey of
because (1) the HELP model is intended
the maximum half-life for Municipal Landfills is not
biodegradation is appropriate to ensure 24 Howard, P.H., R.S. Boethling, W.F. Jarvis, W.M.
representative of disposal practices in
that the mass-loading levels are Meylan, E.M. Michalenko, and H.T. Printup (ed.). the dye industry. The commenters’
protective to compensate for the 1991. Handbook of Environmental Degradation
uncertainties inherent in the data. We Rates. Lewis Publishers. 26 See Appendix A of the EPA’s Composite Model
25 ‘‘Characterization of Infiltration Rate Data to for Leachate Migration with Transformation
used anaerobic degradation rates that Support Groundwater Modeling Efforts,’’ Draft Products (EPACMTP)—Parameters/Date
were available in our primary Final. TetraTech, Inc. September 28, 2001. Background Documents (2003).
review of the survey used to estimate commenters contended that this would nationwide probabilistic approach we
well distance indicated that EPA only over predict concentrations at the used in the risk evaluation.
collected well distance information if a receptor well, and significantly under f. Simulation Durations. The
well was located within one mile of the predict the travel time to the receptor commenters pointed out that for several
landfill. The commenters contended well. Moreover, they believed that these chemicals (o-anisidine, p-cresidine, and
that the survey results used by EPA are high hydraulic permeabilities are not 2,4-dimethylaniline), the groundwater
significantly skewed and any representative of any shallow or deep time to impact is more than 250 years.
distribution calculated from these zone aquifer system in the United The commenters stated that simulations
results will not be representative of States. over this time period are
municipal landfills, but only those It is the Agency’s position that the computationally intensive and generate
municipal landfills with well distances hydrogeologic database (HGDB) is the results that are unrealistic and not
less than one mile. The commenters best data source available to interpretable, because we cannot predict
suggested that EPA should have limited characterize subsurface parameters for human behaviors that influence
the well distance information to those conducting nationwide, probabilistic, exposure or land uses so far in the
facilities currently used by dye groundwater pathway analyses. The future. Commenters suggested that EPA
manufacturers, and resubmitted a hydraulic conductivity values used in should limit the results to the maximum
survey of landfills originally submitted this analysis were compiled under the concentration within the next 100 years.
in comments on the previous 1999 auspices of the American Petroleum As a matter of policy, the Agency has
proposed rule. According to the data Institute and the National Well Water adopted long time frames for assessing
supplied, seven of sixteen landfills have Association.27 The objective of the data risks in the hazardous waste listing
no nearby wells or have wells greater compilation was to provide the Agency program because it allows peak
than one mile from the landfill an up-to-date, screened datasource for concentrations to be observed at most
boundary. Based on this information, probabilistic modeling. Hydraulic receptor locations. This time frame is
the commenters argued that the conductivity values from site consistent with other listing
Agency’s well distance distribution was investigations at 400 hazardous waste determinations.29 The EPACMTP
irrelevant for the dye industry and sites were collected, subjected to computer model, developed by the
thereby overestimated potential internal review, and were subsequently Agency, can perform the simulation
migration of constituents from the published in a peer-reviewed journal. over these time frames in a
landfill to the receptor well. computationally efficient manner on
We believe that the use of a national The groundwater velocity at a specific
location, such as a receptor well, has modern computers. It is well
distribution of landfill characteristics is documented in the scientific literature
appropriate. The populations of concern regional and local contributions.
Regional groundwater velocities are that groundwater travel can span
to EPA are those with private wells near hundreds to thousands of years.
landfills, and the selected distribution proportional to hydraulic conductivity,
while local velocities are governed by Therefore, we do not agree that
covers that population. The data simulations over a 250-year time period
supplied by the commenters are areal recharge and are almost
independent of hydraulic conductivity. will generate results that are unrealistic
incomplete with respect to coverage of and not interpretable. Furthermore, the
all facilities in the dyes and/or pigments Of the entire hydraulic conductivity
database, there are only two values commenter did not provide any reason
industries and, therefore, may not be why arbitrarily restricting the modeling
representative of disposal facility equal to 2.21 × 107 m/yr. These values
are relatively high but not implausible to a 100-year time frame would be more
characteristics that could be used. The appropriate. The Agency agrees that
Agency adopted an approach to use a for fractured sedimentary rocks (Region
2). Regions 4, 5, and 6 (Sand and Gravel; future changes in human behavior and
nationwide risk assessment environments are subject to uncertainty.
methodology that has been applied in Alluvial Basins, Valleys, and Fans; and
River Valleys and Flood Plains, However, the Agency’s probabilistic
previous listing determinations, and this approach in conjunction with relatively
approach has been subject to peer respectively) have four hydraulic
conductivity values which are in excess conservative assumptions is designed to
review. As noted in our response to provide a reasonable level of protection
comments on landfill liners in section of 105 m/yr. These values, although
relatively high, are also not implausible. for future generations.
IV.A.2, the specific landfill information g. Exposure Parameters. Commenters
submitted by the commenters was for a For example, literature references
indicate that values of hydraulic stated that EPA has selected maximum
small number of landfills relevant to values for several exposure parameters
dye manufacturers only, and would not conductivities for gravelly deposits may
range from 104 to 107 m/yr.28 We also for the probabilistic analyses, and that
be representative of the landfills that
note that these values make up an use of maximum values overestimates
could be used (EPA estimated that there
extremely small fraction of the values in potential risk.
are about 2,300 MSW landfills in
the data base, thereby reflecting the Ingestion and inhalation rates:
operation in 2000). Moreover, disposal
likelihood of their occurrence Commenters argued that EPA’s current
locations, in addition to well locations,
nationally. This is consistent with the ranges for groundwater ingestion rates
can change over time. Therefore, we
are overly conservative and that EPA
used probabilistic analyses in an
overestimated the amount of water
attempt to incorporate the variability 27 Newell, C.J., L.P. Hopkins, and P.B. Bedient.
1989. Hydrogeologic Database for Ground Water ingested by potential adult receptors.
and uncertainty in the data.
e. Hydraulic Conductivity Values. The Modeling. American Petroleum Institute, The commenters noted that the
Washington, DC; and Newell, C.J., L.P. Hopkins, maximum values used by EPA are
commenters questioned a number of and P.B. Bedient. 1990. A hydrogeologic database
hydraulic conductivity values used in for ground water modeling. Ground Water
higher than the 99th percentile value
the regional hydrogeologic database. 28(5):703–714. presented in EPA’s Exposure Factors
28 See Freeze, R.A., J.A. Cherry. 1979.
The commenters believed that these
Groundwater; Prentice Hall, Englewood Cliffs, New 29 Paints Listing Determination; February 13,
‘‘extremely high’’ hydraulic Jersey, and Driscoll, F.G. 1986. Groundwater and 2001; 66 FR 10093; Inorganic Chemical
conductivity values are implausible and Wells, Second Edition; Johnson Screens, Publisher, Manufacturing Listing Determination; September
skewed the model results. The St. Paul, Minnesota. 14, 2000; 65 FR 55697.
Handbook (EPA 1997a).30 The characteristics and behavior patterns exposure pathway for only two
commenters also argued that EPA change. Depending on the exposure constituents (naphthalene and
overestimates maximum inhalation rates duration selected, a receptor (e.g., a 1- dichlorobenzene) and neither of these
for adult and child residents, noting that to 5-year-old) ages through successive two constituents served as a basis for
the maximum rate used by EPA exceeds age groups (also known as cohorts). listing K181. Drinking water ingestion
the 99th percentile inhalation rates for Other exposure parameters (i.e., body was the determining pathway for all
men and women given in EPA guidance weight, inhalation rate, drinking rate) other constituents.
(EPA (2000), Options for Development are held constant while a receptor is in In order to be protective of human
of Parametric Probability Distributions a given age cohort, but are selected health, EPA assumes that the entire
for Exposure Factors). again as a receptor enters the successive constituent concentration in indoor and
We do not agree that the water age cohort. For example, a receptor ambient air is available for respiratory
ingestion and inhalation rates we used initiated at age three would have a uptake, unless chemical-specific data
are overly conservative. The maximum constant 1- to 5-year-old body weight at indicate otherwise. Data on the fraction
values were used to truncate the ages 3, 4, and 5. At age 6, a new body absorbed from inhalation are not
distribution during sampling using a weight would be selected from the 6- to frequently available, and the commenter
statistical software package. A large 11-year-old body weight distribution to did not provide any such data.
range was used in order to prevent the be used for the duration spent in this However, when data are available, the
shape of the data distributions from cohort (and so on). A 22-year-old would fraction absorbed is incorporated into
being distorted. For groundwater have a body weight selected from the the cancer and noncancer inhalation
ingestion, the mean, 50th, 90th, 95th, adult body weight distribution, not that benchmarks.
and 99th percentiles from the sampled of a 1- to 5-year-old. Monte Carlo Distributions: In the
data were verified by comparing them Indoor air exposures: The Monte Carlo analysis, the Agency used
against the data provided in EPA’s commenters believe that the shower distributions to describe several
Exposure Factors Handbook. Similarly model used by EPA overestimates exposure parameters, including body
for inhalation, the simulated 99th potential exposure and risk. The weight, exposure duration, and drinking
percentile value for the adult inhalation commenters claim that EPA used water intake. The commenters
rate we used was consistent with the several overly conservative exposure contended that EPA failed to follow its
values cited in the above document. In parameters, including the time in the own guidance when developing these
addition, the probabilistic analyses use bathroom. Commenters contended that distributions, noting that the document
values throughout the distribution of it is highly unlikely that individuals Guiding Principles for Monte Carlo
parameter values. The maximum value regularly spend four hours in the Analysis (EPA 1997c) stated ‘‘risk
is only one point on the distribution bathroom showering and in related assessors should never depend solely on
curve, and thus, has a minor impact on activities, and suggested that the total goodness-of-fit tests to select the
the overall modeling results. duration should not exceed a plausible analytic form for a distribution.’’ The
Exposure Duration: The commenters value (e.g., one hour total). The commenters pointed out that for the
contended that EPA used exposure commenters also argued that EPA distributions used in the exposure
durations that are inappropriate for the assumed that the entire constituent assessment, the Agency did not
receptors identified. The commenters concentration is available for uptake complete any graphical analyses of the
argued that EPA overestimated the and did not consider that only a fraction data to ensure that the distributions
period of exposure, thereby arbitrarily of that inhaled may be available and selected were consistent with the results
increasing the risk estimates calculated. absorbed. of the statistical analyses. The
The commenters pointed out that the EPA does not believe that the indoor commenters also stated that EPA did not
exposure duration for a child varied air exposure parameters are overly provide enough information to support
between one and 50 years, even though conservative. During the Monte Carlo the distribution selected for drinking
the greatest length of potential exposure simulation, the distributions for the water ingestion (a gamma distribution)
is five years for a one-to five-year-old. time spent in showering and related instead of a lognormal distribution, as
Commenters stated that EPA correctly activities are sampled independently, described in EPA’s Exposure Factors
holds all other inputs within the one-to such that the combined shower Handbook.
five-year age bracket; therefore, EPA’s exposure used in the Monte Carlo We agree that graphical
methodology could result in modeling a simulation is significantly lower than representations are often useful and we
22-year-old that has the body weight four hours. For example, the 50th have provided such graphical
percentile value of the combined representations for key exposure
and ingestion rate of a five-year-old.
EPA does not agree that the exposure shower exposures results in a duration parameters in the Response to Comment
duration is inappropriate for the of 32 minutes in the bathroom; the 99th document. However, as part of our
receptors identified. The exposure percentile value of the combined analysis for the proposal, EPA
duration used in the analysis is selected shower exposures results in a total conducted a thorough review of
once for each receptor at the beginning duration of 83 minutes in the bathroom. sampled data to ensure that the selected
of each iteration. As we described in the These are not implausible values. The percentiles were representative of the
proposal (68 FR 66182–66183), we commenters did not suggest any data. Regarding the specific distribution
alternative exposure periods for the selected for drinking water ingestion,
evaluated a child whose exposure
showering scenario, so we cannot the gamma model provided a better fit.
begins at a random age between one and
compare any suggested values to those In any case, we found no significant
six years old. We then aged the child for
we used in our analysis. We note, difference between using the gamma
the number of years defined by the
however, that the mean, 50th, 90th, versus the log normal distributions for
randomly selected exposure duration.
95th, and 99th percentiles were verified this data set. For example, using a
As children mature, their physical
by comparing them against the data gamma distribution for drinking water
30 U.S. EPA Exposure Factors Handbook, August provided in EPA’s Exposure Factors intake of adults, the 50th and 90th
1997; EPA/600/P–95/002Fa. http://www.epa.gov/ Handbook. In addition, shower percentile simulated values are 1,272
ncea/pdfs/efh/front.pdf. inhalation exposure was a determining mL/day and 2,302 mL/day, compared to
1,252 mL/day and 2,268 mL/day for the EPA generally agrees with the required to use the more extensive
log normal distribution. concerns stated by the commenters on procedures in § 261.32(d)(3), which
the alternative option. We noted some of include a requirement to test for
9. Implementation
these concerns in the proposed rule as constituents reasonably expected to be
EPA received comments on a number part of our request for comment on this present. Commenters objected to EPA’s
of issues concerning the proposed option. Specifically, we agree that the proposal that would limit who could
implementation approach for the K181 alternative approach would cause use knowledge of their wastes to
listing determination. The most significant difficulties for waste demonstrate that their wastes are
significant issues include: (1) EPA’s management facilities that might accept nonhazardous. They stated that all
alternative to consider all wastes initial batches of wastes as waste generators should have the option
generated during the year to be nonhazardous, but later find that these of using knowledge to demonstrate that
hazardous if the mass loading limit for wastes are declared hazardous. As a their wastes are nonhazardous,
a CoC in the wastes is met or exceeded result, the generators may have irrespective of how much waste they
at any time during the year; (2) not difficulty in finding waste management generate. This is because, in most cases,
allowing higher quantity waste facilities that would accept wastes as commenters believe that testing of
generators the option of using nonhazardous under this approach. wastes by generators is unnecessary and
knowledge of their wastes to Therefore, we are finalizing the burdensome. They pointed out that
demonstrate that the wastes are proposed approach, which considers all waste generators have sufficient
nonhazardous; (3) use of the maximum K181 potential wastes generated up to knowledge about their wastes to make
detected concentration or a the mass loading limits of the CoCs to appropriate determinations for any
concentration based on the 95th be nonhazardous and allows these quantity of wastes that they generate.
percentile upper confidence limit of the wastes to be managed as nonhazardous. They also noted that the wastes do not
mean to determine the mass of a CoC; In other words, the K181 listing would contain many of the proposed CoCs for
(4) EPA’s onsite recordkeeping apply to only the portion of wastes that K181 and, when present, they are not
requirements to support a nonhazardous meets or exceeds the mass loading likely to exceed threshold quantities.
determination for the wastes; and (5) limits for any of the K181 CoCs in a Finally, the commenters emphasized
EPA’s annual follow-up testing calendar year. that, if toluene-2,4-diamine is not
requirements to verify that wastes While the K181 listing only applies to present in the wastes and the wastes are
remain nonhazardous. The Agency’s wastes that meet or exceed the mass being disposed in lined landfills, then
responses to these comments are loading limits, the Agency notes that the the testing requirements are irrelevant
summarized below. The verbatim annual mass loading limits, the landfill and should be deleted.
comments and our responses to all design requirements, and treatment in
specified combustion units are We proposed and are finalizing that
comments are provided in the Response all manufacturers can use knowledge of
conditions of the listing. Dyes and/or
to Comments Background Document. their wastes to determine which K181
pigments nonwastewaters become K181
a. Alternative Option for Wastes wastes unless a generator fulfills one of constituents of concern are reasonably
Which Meet or Exceed Mass Loading these conditions. If one or more of these expected to be present in their wastes.
Limit. EPA took comment on an conditions are not met, EPA or However, we do not agree that
alternative option that would consider authorized states could bring manufacturers who generate more than
all wastes generated during the year to enforcement actions for violations of 1,000 MT/yr should have the option to
be hazardous if the mass loading limit hazardous waste requirements against use knowledge to determine the level of
for a CoC in the wastes is met or anyone who has not managed the waste K181 CoCs present in their wastes. This
exceeded at any time during the year. in compliance with applicable Subtitle is in part because, as stated in the
Commenters on the proposed rule did C requirements. Furthermore, EPA can proposal, we believe that the larger
not support this option. They argued take action under section 7003 of RCRA quantities of wastes have the potential
that this alternative is not necessary or if the management of dyes and/or for posing greater environmental risks
practical for several reasons. First, waste pigment nonwastewaters may pose an than smaller quantities of wastes if a
quantities determined to be imminent and substantial endangerment nonhazardous determination based on
nonhazardous based on the results of to human health or the environment. knowledge turns out to be inaccurate
the risk assessment would be subject to Thus, we advise generators to properly (see 68 FR 66202). In addition, as
hazardous waste regulation. Second, it store nonwastewaters that are discussed previously (section IV.A.6),
would require the waste generators to potentially hazardous under the K181 we believe that the information
accurately forecast customer demand for listing. At a minimum, we encourage available indicates that the constituents
products and the amount of constituents generators to store all wastes in proper of concern are present in dye/pigment
in wastes over a one year period from containers (i.e., such that wastes are not production wastes, and that the levels of
highly variable waste streams that often placed directly on the ground) prior to the constituents have the potential to
result from batch manufacturing disposal. exceed the annual mass loading limits.
processes. Third, customers may have to b. Using Knowledge of Wastes To Therefore, we believe that it is
be turned away and potential new Demonstrate that Wastes are reasonable to require larger quantity
products put on hold if a company’s Nonhazardous. EPA proposed that waste generators to test their wastes.
forecast for the mass of any CoC in its waste generators who generate or expect Test data represent the best information
wastes is approached before the end of to generate 1,000 metric tons per year or that can be obtained on the
the calendar year and the wastes have less of K181 categorized wastes would concentrations of CoCs present in the
been disposed in a nonhazardous have the option of using knowledge of waste and for use in determining the
landfill. Finally, waste management their wastes to demonstrate that their mass loading levels for CoCs, because
facilities (for nonhazardous wastes) may wastes are nonhazardous. On the other waste testing provides a direct
not accept such nonhazardous wastes if hand, we proposed that generators who indication of constituent levels. It
the wastes may later be declared generate more than 1,000 metric tons should also be noted that, based on the
hazardous. per year (MT/yr) of K181 would be conditional nature of the final listing
determination, the generators who To ensure protection of human health toluene-2,4-diamine is not present in
generate more than 1,000 metric tons and the environment, we want to be the waste and the wastes are being
per year of K181 would only have to test reasonably conservative and see that disposed in a lined landfill. The
their wastes if they are managing them generators use the most appropriate commenters stated that EPA, at most,
in a landfill that does not meet the liner concentrations of CoCs to calculate the should require records of wastes limited
standards identified in the listing. That mass of each CoC in the wastes. to proof of transportation to the
is, if such generators are managing their Therefore, the use of rolling averages, appropriate landfill.
wastes in lined landfills that are subject average concentrations, or median As described previously, the Agency
to (or otherwise meet) § 258.40, 264.301 concentrations would not be has reviewed the comments on toluene-
or 265.301, there is no need to appropriate. Rolling averages and 2,4-diamine and has decided to no
determine the levels of K181 CoCs and average concentrations are based on the longer include toluene-2,4-diamine as a
thus no need to test. Finally, we note simple average of the measured constituent of concern for K181. As a
that if facilities generating 1,000 MT/yr concentrations, with no statistical result of this decision, one of the two
or less use some level of waste analysis measure of the confidence limit conditions that were proposed for the
data to determine the levels of CoCs associated with these concentrations. dyes and/or pigment nonwastewaters to
present, they are still only subject to the Therefore, the use of simple averages be considered nonhazardous under the
requirements in § 261.32(d)(2), and not would not account for the possibility of landfill exemption has been eliminated.
the more extensive testing requirements a wide variability in the levels of CoCs The only remaining condition for these
in § 261.32(d)(3). in the waste. The median is simply the wastes to be considered nonhazardous
We are adding further language in the middle value in the data (i.e., one-half in the final listing is for the wastes to
regulations to clarify when the of the values are above the median, and be disposed in a landfill unit that meets
generators are required to evaluate their one-half are below it) and may not be the liner design standards specified in
wastes and to demonstrate their wastes representative of the average the listing description. (As discussed in
are not hazardous. We have revised the concentration of a CoC in the waste. section IV.A.3, the listing also includes
beginning of § 261.32(d) to make it clear The use of maximum sample an exemption for combustion.)
that only generators that do not dispose concentration is appropriate when the Therefore, as long as the wastes are
of the wastes in landfill units that meet waste generator takes insufficient being disposed in these types of
the design requirements in the listing samples of a particular amount of waste. landfills, the waste generators do not
In general, because potential K181
description are required to evaluate have to test or maintain records
wastes are likely to be highly variable,
their wastes for CoCs under associated with waste sampling or
waste generators should be taking
§ 261.32(d)(1) through § 261.32(d)(3). testing. The Agency agrees that records
multiple samples to properly
Generators that dispose of their wastes demonstrating that each shipment of
characterize the wastes. For multiple
in landfills meeting the specified design waste was received by an acceptable
samples, the waste generator may use
requirements do not have to evaluate type of landfill must be maintained.
the maximum detected concentration or
their wastes, however they must A generator claiming that it is not
a concentration based on the 95th
document the disposal in an appropriate subject to the listing would have to
percentile upper confidence limit of the
landfill (§ 261.32(d)(4)). Furthermore, maintain sufficient documentation to
mean for a CoC. The upper confidence
we added language to the beginning of limit approach takes into account the demonstrate that it has not exceeded the
§ 261.32(d)(3) to clarify that all steps in variability of the waste and provides a relevant annual mass loading limits,
this subparagraph must be completed. measure of confidence that the mean that it has sent its waste to a landfill
c. Use of the Maximum Detected concentration is below the upper bound meeting the liner design standards
Concentration or a Concentration Based of the confidence limit. Thus, using the specified under the conditional
on the 95th Percentile Upper 95th percentile upper confidence limit exemption, or that the waste was treated
Confidence Limit of the Mean. EPA of the mean for a CoC gives a greater in a permitted combustion unit as
proposed that waste generators use the degree of confidence that its mass in the specified in the listing description. EPA
maximum detected concentration or, if waste is below the mass loading limit. believes that it is critical for generators
multiple samples are collected, use The 95th percentile upper confidence to have documentation demonstrating
either the maximum concentration or a limit calculation, although it requires that the waste is below the mass loading
concentration based on the 95th some statistical analysis, is relatively limits, or that shipments of waste have
percentile upper confidence limit of the simple to calculate and has been used been (or will be) sent to landfills
mean (UCLM) in order to determine the in other parts of the RCRA program (e.g., meeting the specified design
mass of a CoC in the waste. Commenters see the implementation of the requirements or combustion units as
did not support the use of the maximum Comparable/Syngas Fuel Exclusion specified in the listing. Paragraphs
concentration, since they believe it is under 40 CFR 261.38(c)(8)(iii)(A)). [Use (d)(1), (d)(2), (d)(3) and (d)(4) of § 261.32
overly conservative and would overstate of the 95th percentile upper confidence of the rule require generators of dyes
the mass loading generated by a facility. level provides assurance that the mass and/or pigment nonwastewaters from
The commenters also considered the use loadings established in the regulation the listed product classes to keep
of a concentration based on the 95th will be protective of human health and records under the authority of sections
percentile UCLM as complicated and the environment.] 2002 and 3007 of RCRA. Failure to
open to interpretation. Instead of d. Onsite Recordkeeping comply with the recordkeeping
requiring the use of the maximum Requirements. EPA proposed onsite requirements could result in an
concentration or a concentration based recordkeeping requirements to support a enforcement action by EPA under
on the 95th percentile UCLM, nonhazardous determination. These section 3008 of RCRA or by an
commenters suggested that waste included keeping records on waste authorized State under similar State
generators should be allowed to use sampling and analysis. Commenters authorities. Without adequate
rolling averages, or average questioned the need for waste analysis documentation, the regulating agency
concentrations, or median and onsite recordkeeping requirements may presume that the generator is not
concentrations. associated with waste analysis if complying with the requirements for
demonstrating that the wastes are information reviewed, and the results of the wastes are nonhazardous for one
nonhazardous. past analyses performed. year, annual follow-up testing
Note that in the final rule, we are also The facility develops a sampling and requirements are not necessary, unless
clarifying that the requirement for analysis plan that includes the there is a significant change in the
keeping records on site for three years requirements of § 263.32(d)(3)(iii) for process. Also, if there is a significant
under paragraphs (d)(2) and (d)(3) refers characterizing the levels of the K181 process change, the commenters believe
to the three most recent calendar years constituents present in the wastes that a one year repeat demonstration
by including more specific text in destined for disposal in an industrial should be considered sufficient to
§ 261.32(d)(2)(iv) and § 261.32(d)(3)(x) landfill that does not meet the liner demonstrate that the wastes remain
(i.e., ‘‘Keep the following records on site requirements. The facility collects and nonhazardous. In addition, commenters
for the three most recent calendar years analyzes representative waste samples believe that there is no reason for
in which the hazardous waste according to the developed sampling annual testing of wastes disposed in
determinations are made’’). We believe and analysis plan and the lined landfills, if they do not contain
this clarification makes the § 263.32(d)(3)(iv) testing requirements. toluene-2,4-diamine or if the
recordkeeping requirement more The analytical results show that the concentration of toluene-2,4-diamine in
consistent with the calendar year basis annual amount of waste contains up to the wastes does not change. Finally,
of the annual loading limits. 6,800 kg/yr of 4-chloroaniline. The commenters pointed out that EPA, in
Below we provide examples to facility maintains on site the sampling other hazardous waste exclusions,
illustrate the types of records that need and analysis plan, documents showing required an initial demonstration and
to be kept on site for two facilities, one the analytical results and the repeat demonstration only when there is
that sends all wastes to a municipal accompanying quality assurance/quality a significant change in the process that
landfill, and another that tests their control (QA/QC) data, and records generates the wastes.
waste. showing the waste batches and The Agency notes that toluene-2,4-
Example 1: Facility D is a producer of a
quantities represented by the test diamine is no longer a constituent of
variety of in-scope organic dyes and results. concern for the K181 waste listing.
pigments, generating 2,000 metric tons per The facility keeps a running total of Therefore, any waste generator that is
year of wastewater treatment sludges. The the 4-chloroaniline mass loadings disposing of these wastes in a landfill
generated wastes do not exhibit any determined throughout the year and unit subject to the liner design criteria
hazardous waste characteristic nor meet any documents the calculations performed. specified in the listing description, is
other listing descriptions. While the total The facility manages those batches with
quantity of wastes exceeds 1,000 MT/yr, the not required to test or conduct repeat
cumulative mass loadings of less than testing under the conditional final
facility decides to send all of the wastes to 4,800 kg/yr of 4-chloroaniline as
a municipal landfill where the receiving listing for the dyes and/or pigments
units meet the liner design criteria of nonhazardous waste, and ships them to
nonwastewaters. However, any large
§ 258.40. Therefore, the facility has no an industrial landfill that does not meet
waste generator that tests their wastes
obligation to test for the presence of CoCs. To the design requirements of § 258.40,
and is not disposing of them in this type
comply with the recordkeeping requirements § 264.301, or § 265.301. The facility is
of landfill (or treating the waste by
of § 261.32(d)(4), the facility keeps records on careful to document the mass loadings
site for three years to show that shipments of combustion as specified in the listing) is
in those batches. The facility ships the
the wastes received by the landfill are subject to the testing requirements (as
remaining waste to a municipal landfill
disposed of properly. These records include proposed) in today’s final rule at
subject to the § 258.40 design criteria.
documentation of the types of wastes § 261.32(d)(3). This is because the
shipped, shipping records from the
The facility keeps all of the above waste
wastes produced by the dyes and/or
transporter and the landfill documenting determination and management records
on site for three years. pigments industries using batch
receipt of the waste shipment, and processes can be highly variable.31 As a
documentation from the landfill or state e. Annual Follow-up Testing
indicating that the landfill units meet the Requirements. EPA proposed that waste result, we do not believe that testing for
§ 258.40 design standards. generators continue to perform waste one year is sufficient to demonstrate
Example 2: Facility E is a producer of in- analysis annually after the wastes have that the waste would remain
scope organic dyes and pigments generating been determined to be nonhazardous for nonhazardous over a sufficiently long
3,500 MT/yr of process sludges. Facility E the purpose of verifying that the wastes period of time. Thus, the Agency is
would like to manage as much as possible of requiring test data to show that the dyes
remain nonhazardous. However, we also
the 3,500 MT as nonhazardous (e.g., dispose and/or pigment wastes are
of the waste in an industrial landfill that does proposed that the annual testing
requirements for the wastes could be nonhazardous for three consecutive
not meet the liner criteria specified in the
listing description), as long as the wastes are suspended if the annual running total years to provide a greater degree of
below the mass-loading limits in § 263.32(c). mass levels for the CoCs during any confidence in the waste determination.
Since the total volume of nonwastewaters three consecutive years based on the The follow-up testing can only be
exceeds 1,000 MT/yr, the facility must follow sampling and analysis results for the suspended if it is demonstrated that the
the procedures set forth in § 263.32(d)(3) to CoCs in the wastes are determined to be wastes are nonhazardous for three
determine the status of its nonwastewaters. nonhazardous. We also proposed that consecutive years.
Therefore, the facility first determines following a significant process change 10. Exemption for Non-Municipal
that one of the K181 listing constituents (i.e., if it could result in significantly Landfills
is expected to be present in the facility’s higher levels of the CoCs for K181 in the
wastes (4-chloroaniline). This wastes and greatly increase the potential The proposed rule included an
determination is based on the raw for the wastes to become hazardous), the exemption for wastes disposed in
materials used for manufacturing, the annual testing requirements for the landfill units that are subject to the liner
impurities likely present in the process wastes would be reinstituted. design requirements in § 258.40. This
feeds, and the production chemistry Commenters questioned the need for 31 As ETAD indicated in its comment that ‘‘Dyes
involved. The facility documents this annual testing requirements over a production involves batch processes, numerous
finding using the MSDS sheets for the period of at least three years. They distinct products and highly variable waste streams
materials used, the process reaction believe that, after a demonstration that * * * ’’
was based on our risk analysis that exemption for wastes disposed in include leachate that is derived from a
demonstrated that wastes disposed in subtitle D landfills that meet the design surface impoundment.
landfills with composite liners did not requirements in § 258.40, § 264.301, or As we noted in the proposal, we
present significant risks for K181 dye § 265.301. The landfill exemption in the believe a temporary deferral is
and pigment wastes. (In the proposal, K181 listing now reads as follows (the warranted. We believe that it is
we also included a mass-loading limit final rule also includes an exemption for appropriate to defer regulation on a
for toluene-2,4-diamine for composite- certain combustion units, as well): case-by-case basis to avoid disrupting
lined units, but as noted previously, we These wastes will not be hazardous if the leachate management activities, and to
are dropping this constituent in the final nonwastewaters are: (i) Disposed in a subtitle allow us to decide whether any further
rule.) We also sought comment on the D landfill unit subject to the design criteria integration of the two programs is
option of including in the exemption in § 258.40, (ii) disposed in a subtitle C needed.33 While the commenter
wastes that are disposed in other non- landfill unit subject to either § 264.301 or suggested there were ‘‘uncertainties’’ in
municipal landfills (industrial landfills) § 265.301, (iii) disposed in other subtitle D leachate management requirements, no
that meet the liner design requirements landfill units that meet the design criteria in specific problems were identified. In
in § 258.40 or Subtitle C landfills. One § 258.40, § 264.301, or § 265.301, or (iv) any case, a broader exemption for
commenter indicated that, since lined treated in a combustion unit that is permitted
landfill leachate is beyond the scope of
under subtitle C, or an onsite combustion
landfills do not pose a significant risk the current rulemaking. Similarly, we
unit that is permitted under the Clean Air
for disposal of the waste, manufacturers Act. see no need to expand the deferral to
generating potential K181 waste should include leachate from surface
have the option of utilizing synthetic B. Final ‘‘No List’’ Determination for impoundments, as well as landfills. The
membrane lined industrial landfills Wastewaters issues raised by this commenter relate to
which are as protective as lined The Agency proposed not to list as the management of leachate from closed
municipal landfills. The commenter hazardous wastewaters from the surface impoundments located on site.
suggested that the generators could be production of dyes and/or pigments. We We believe that these issues are site-
responsible for assuring that a landfill is received numerous comments specific and are best left to the local
designed with an appropriate synthetic supporting this proposal, and no regulatory agency. Therefore, we are not
liner system. adverse comments on this proposed expanding the deferral to include
After considering this issue fully, we impoundment leachate.
decision. We have not independently
agree that it would be appropriate to One commenter sought clarification
learned of any new information
include industrial landfill units (e.g., on our use of the term ‘‘active
requiring us to change our position on
non-municipal landfill units) in the management,’’ in the context of our
these wastes. Therefore, we are making
landfill exemption for the K181 listing, statement in the proposal that ‘‘The
a final decision not to list wastewaters
provided the units meet the specified Agency often uses the term ‘active
from the production of dyes and/or
liner design standards. While the management’ as a catch-all term to
pigments.
available information indicates that describe the types of activities that may
generators are using primarily C. What Is the Status of Landfill trigger RCRA subtitle C permitting
municipal landfills for disposal of dyes Leachate Derived From Newly-Listed requirements.’’ (See 68 FR 66199,
and pigment manufacturing wastes, K181Wastes? Footnote 57). The commenter noted that
comments submitted (see CPMA actions not requiring a permit may be
As noted in the proposed rule,
comments, Appendix B) indicate that active management and wanted to
actively managed landfill leachate and
industrial landfills are in use to some clarify that active management would
gas condensate generated at non-
extent. We do not wish to preclude use include situations like 90-day storage of
hazardous waste landfills derived from
of commercial industrial landfills that excavated K181 waste, which does not
previously-disposed and newly-listed
meet the liner standards for municipal require a permit. The commenter is
wastes could be classified as K181. We
landfills in § 258.40 (or for subtitle C correct. We did not mean to imply that
proposed to temporarily defer the
landfills). As the commenter suggested, active management can only occur for
application of the new waste code to
the generator would be responsible for actions requiring a RCRA subtitle C
such leachate to avoid disruption of
documenting that the landfill meets the permit. In the case of a typical listed
ongoing leachate management activities
specified liner standards. States have waste, excavated wastes stored in 90-
while the Agency decides if any further
regulations governing the design of non- day containers (e.g., roll-off bins) would
integration is needed of the RCRA and
municipal non-hazardous landfills.32 indeed be considered ‘‘active
CWA regulations consistent with RCRA
Thus landfill operators are likely to management’’ and carry the hazardous
section 1006(b)(1).
have certifications or permit conditions waste code designation. For the K181
We are finalizing the revisions to the
available to provide to generators who listing, however, the only excavated
temporary deferral in § 261.4(b)(15) with
wish to use such landfills instead of wastes that could carry the K181
no change from the proposed rule.
municipal landfill units. As described designation would be wastes that meet
Commenters generally supported the
previously in the discussion on or exceed the mass loadings of any of
proposed deferral. However, two
recordkeeping requirements, generators the specified constituents. Furthermore,
commenters stated that EPA should
wishing to qualify for the exemption are if the excavated waste is disposed in a
make the deferral permanent. One of the
required to maintain records to show suitable landfill that is subject to or
commenters stated that the various
that they are using an appropriate
approaches used by EPA in listings,
landfill unit, whether the unit is a 33 EPA’s Office of Water examined the need for
including the mass loadings approach
municipal landfill, subtitle C landfill, or national effluent limitations guidelines and
proposed for the current dyes and pretreatment standards for wastewater discharges
an industrial landfill. Therefore, we are
pigments waste listing, creates (including leachate) from certain types of landfills
finalizing the listing to include an (see proposed rule at 63 FR 6426, February 6, 1998).
uncertainty for the municipal landfill
EPA decided such standards were not required and
32 Association of State and Territorial Solid Waste operator regarding leachate did not issue pretreatment standards for Subtitle D
Management Officials (‘‘ASTSWMO’’), Non- management. The other commenter also landfill wastewaters sent to POTWs (see 65 FR
Municipal, Subtitle D Waste Survey. urged EPA to expand this deferral to 3008, January 19, 2000).
meets the specified design criteria, or performance of Best Demonstrated In the proposal, we had stated that if
treated by combustion as specified in Available Treatment (BDAT) the numerical standards for these
the listing description, then the waste technologies of the constituents in constituents were shown in comments
would be exempt from the listing. question. EPA is also authorized in not to be achievable or otherwise
section 3004(m) to establish methods of appropriate, we might adopt methods of
D. What Are the Final Treatment treatment as a treatment standard. Doing treatment as the exclusive treatment
Standards Under RCRA’s Land Disposal so involves specifying an actual method standard. We did not receive any such
Restrictions for the Newly-Listed by which the waste must be treated comments suggesting that these
Hazardous Wastes? (unless a variance or determination of numerical standards were not
1. What are EPA’s Land Disposal equivalency is obtained). Given this achievable or otherwise appropriate.
Restrictions (LDRs)? constraint, EPA prefers to establish Therefore, we are finalizing the
numerical treatment standards, which proposed numerical treatment standards
The RCRA statute requires EPA to
leaves the option of using any method for these six CoCs.
establish treatment standards for all For the remaining constituent of
of treatment (other than impermissible
wastes destined for land disposal. These concern, 1,2-phenylenediamine, we
dilution) to achieve the treatment
are the so called ‘‘land disposal stated in the proposed rule that in past
standard.
restrictions’’ or LDRs. For any EPA also finds that the treatment method performance evaluations, we
hazardous waste identified or listed standards established in today’s rule are have found it difficult to achieve
after November 8, 1984, EPA must not established below levels at which reliable recovery from aqueous matrixes
promulgate LDR treatment standards threats to human health and the and precise measurements. Therefore,
within six months of the date of environment are minimized. See we proposed technology-specific LDR
identification or final listing (RCRA Hazardous Waste Treatment Council v. treatment standards for this constituent.
section 3004(g)(4), 42 U.S.C. 6924(g)(4)). EPA, 886 F. 2d 355, 362 (D.C. Cir. 1990). We also noted that if commenters
RCRA also requires EPA to set as these That case held that the statute can be submitted data adequate for us to
treatment standards ‘‘* * * levels or read to allow either technology-based or develop a numerical standard, then we
methods of treatment, if any, which risk-based standards, and further held might promulgate a numerical standard
substantially diminish the toxicity of that technology-based LDR treatment in addition to, or in lieu of, the
the waste or substantially reduce the standards are permissible so long as technology standard.
likelihood of migration of hazardous they are not established ‘‘beyond the Because we did not receive data on
constituents from the waste so that point at which there is no ‘threat’ to 1,2-phenylenediamine, we are
short-term and long-term threats to human health or the environment.’’ Id. maintaining the technology-specific
human health and the environment are at 362. EPA’s finding that today’s standard as the LDR treatment standard,
minimized.’’ RCRA section 3004(m)(1), standards are not below a ‘‘minimize with one change. We are expanding the
42 U.S.C. 6924(m)(1). Once a hazardous threat’’ level is based on the Agency’s treatment options for K181
waste is prohibited, the statute provides inability at the present time to establish nonwastewaters to include, in addition
only two options for legal land disposal: concentration levels for hazardous to combustion (CMBST), a treatment
Meet the treatment standard for the constituents which represent levels at train of chemical oxidation (CHOXD)
waste prior to land disposal, or dispose which threats to human health and the followed by BIODG (biodegradation) or
of the waste in a land disposal unit that environment are minimized. See 63 FR CARBN (carbon adsorption) and a
satisfies the statutory no migration test. at 28560 (May 26, 1998) explaining at treatment train of BIODG followed by
A no migration unit is one from which greater length why these difficulties CARBN. We are making this change
there will be no migration of hazardous remain. Thus, the Agency continues to based on a comment we received on the
constituents for as long as the waste find that technology-based standards proposed rule. The commenter asserted
remains hazardous. RCRA sections 3004 remain the best approach for the that the proposed LDR standard of
(d), (e), (f), and (g)(5). national treatment standards for these CMBST has the potential to significantly
We are finalizing the prohibitions and wastes since such standards eliminate disrupt the company’s on-site biosolids
treatment standards for the K181 wastes as much of the inherent uncertainty of disposal. More specifically, because of
which we are listing as hazardous. The hazardous waste land disposal and so the mixture and derived-from rule, if the
date of the prohibition and treatment fulfill the Congressional intent in facility were to accept into its
standard is August 23, 2005. promulgating the land disposal wastewater treatment facility wastes
restrictions provisions. 55 FR at 6642 that meet the nonwastewater definition
2. How Does EPA Develop LDR
(Feb. 26, 1990). of K181, and it contains 1,2-
Treatment Standards?
phenylenediamine, the biosolids
In an effort to make treatment 3. What Are the Treatment Standards for resulting from treatment would have to
standards as uniform as possible, while K181? be combusted.
adhering to the fundamental Of the seven CoCs that form the basis In the above scenario, we do not
requirement that the standards must of the final listing, two of them—aniline believe it makes sense to establish a
minimize threats to human health and and 4-chloroaniline—have an existing treatment standard that would require
the environment, EPA developed the so UTS. For two of the other CoCs—o- the wastewater treatment biosolids to be
called Universal Treatment Standards anisidine, p-cresidine—there is combusted. As the commenter points
(codified at 40 CFR 268.48). Under the adequate documentation in existing out, and with which we agree, if a
UTS, whenever technically and legally SW–846 methods 8270, 8315, and 8325 facility were to introduce a
possible, the Agency adopts the same to calculate numerical standards. nonwastewater into its wastewater
technology-based numerical limit for a Finally, for two other constituents—2,4- treatment system, the nonwastewater
hazardous constituent, regardless of the dimethylaniline and 1,3- would immediately become a
type of hazardous waste in which the phenylenediamine—we are transferring wastewater (by LDR definition) and
constituent is present. See 63 FR 28560 the numerical standards of similar would be amenable to treatment by a
(May 26, 1998); 59 FR 47982 (September constituents as the universal treatment wastewater treatment system. Therefore,
19, 1994). The UTS, in turn, reflects the standards. we are adding to the LDR treatment
standard for 1,2-phenylenediamine a wastes containing 1,2- Document to reflect this change and
treatment train of CHOXD followed by phenylenediamine now is identical for placed it in the docket for today’s rule.
BIODG or CARBN and a treatment train wastewaters and nonwastewaters. We The following table summarizes the
of BIODG followed by CARBN. Note have revised the BDAT Background final treatment standards for the
that the treatment standard for K181 constituents of concern.
TABLE IV–I.—TREATMENT STANDARDS FOR CONSTITUENTS IN K181
Wastewater Nonwastewater
Constituents of concern CAS No. (mg/L) (mg/kg)
Aniline .............................................................................................................. 62–53–3 0.81 14

o-Anisidine (2-methoxyaniline) ........................................................................ 90–04–0 0.010 0.66
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 CMBST; or CHOXD fb
(BIODG or CARBN); or (BIODG or CARBN); or
BIODG fb CARBN BIODG fb CARBN
1,3-Phenylenediamine ..................................................................................... 108–45–2 0.010 0.66
Note: ‘‘fb’’ means ‘‘followed by.’’
In this final rule, we are also families of debris treatment Rule), February 2005’’ (i.e., the Capacity
finalizing the following provisions, all technologies: extraction, destruction, Background Document), available in the
of which are consistent with the or immobilization. If such debris is RCRA docket established for today’s
proposed rule. See the Response to treated by immobilization, it remains final rule.
Comments Background Document for a hazardous waste and must be EPA’s decisions on whether to grant
other LDR-specific issues raised in managed in a hazardous waste a national capacity variance are based
comments. facility. Residuals generated from the on the availability of alternative
—We are adding the CoCs in K181 with treatment of debris contaminated with treatment or recovery technologies
numerical treatment standards to the K181 would remain subject to the capable of achieving the prescribed
Universal Treatment Standards listed treatment standards being finalized treatment standards. Consequently, the
at 40 CFR 268.48, which results in the today. methodology focuses on deriving
addition of four new chemicals to the —We are prohibiting K181 wastes from estimates of the quantities of newly-
list: o-anisidine, p-cresidine, 2,4- underground injection. Therefore, listed hazardous waste that will require
dimethylaniline, and 1,3- K181 wastes may not be injected either commercial treatment or the
phenylenediamine. Adding these underground, unless they meet the construction of new onsite treatment or
constituents to the UTS list will LDR treatment standards or are recovery technology as a result of the
ensure that, if they are present in a injected into a Class 1 well from LDRs. The resulting estimates of
characteristic waste, they will be which it has been determined that required commercial capacity are then
treated prior to land disposal, which there will be no migration of compared to estimates of available
in turn will minimize any risks they hazardous constituents for as long as commercial capacity. If adequate
present to human health and the the wastes remain hazardous. commercial capacity exists, the waste is
environment. (Note: Because toluene- prohibited from further land disposal,
2,4-diamine is not being included as E. Is There Treatment Capacity for the unless it meets the LDR treatment
a constituent of concern for this Newly Listed Wastes? standards prior to disposal. If adequate
waste, it will no longer be added to 1. Introduction capacity does not exist, RCRA Section
the UTS list at 40 CFR 268.48.) 3004(h)(2) authorizes EPA to grant a
—We are adding to F039 those Under the land disposal restrictions national capacity variance for the waste
constituents identified in K181 not (LDR) determinations, the Agency must for up to two years or until adequate
already specified in F039 (the same demonstrate that adequate commercial alternative treatment capacity becomes
constituents named above for addition capacity exists to manage listed available, whichever is sooner.
to the UTS list). F039 applies to hazardous wastes in compliance with
the LDR treatment standards before the 2. What Are the Capacity Analysis
landfill leachates generated from
Agency can restrict the listed waste Results for K181?
multiple listed wastes in lieu of the
original waste codes. F039 wastes are from further land disposal. The Agency In the proposed rule, EPA estimated
subject to numerical treatment performs capacity analyses to determine nonwastewater quantities applying
standards equivalent to the universal the effective date of the LDR treatment engineering estimates of wastewater
treatment standards listed at 40 CFR standards for the proposed listed treatment sludge generation rates and,
268.48. Making this change ensures wastes. This section summarizes the wherever possible, using information
F039 landfill leachates receive proper results of EPA’s capacity analysis for the provided in non-CBI portions of the
treatment for the CoCs in K181. wastes covered by today’s rule. For a RCRA section 3007 surveys and public
—For debris contaminated with K181 detailed discussion of capacity analysis- comments in response to the 1994 and
waste, the provisions in § 268.45 related data sources, methodology, and 1999 proposed rules for dyes and
apply. This means debris analysis results for the wastes covered pigments production wastes. EPA
contaminated with K181 would be in this rule, see ‘‘Background Document received comments in response to the
required to be treated prior to land for Capacity Analysis for Land Disposal November 25, 2003 proposed rule (68
disposal, using specific technologies Restrictions: Newly Identified Dye and FR 66164), which stated that the Agency
from one or more of the following Pigment Manufacturing Wastes (Final overestimated the amount of
nonwastewaters generated by the dyes treat the newly listed waste which may data showing mixed radioactive wastes
and pigments production industry. We require treatment. We also expect that or underground injected wastes
reviewed the information submitted by adequate landfill capacity exists for associated with the newly listed K181
commenters on waste characteristics, managing residuals from treating these based on the public information used in
quantities, and management practices. wastes. Also, there is adequate the proposed rule. Thus, we also
EPA found some data discrepancies and wastewater treatment capacity available proposed not to grant a national
deficiencies that limit the use of the should the need for treatment of the capacity variance for mixed radioactive
submitted data (see discussion on waste wastewater form of K181 wastes arise. waste (i.e., radioactive wastes mixed
quantities in section IV.A.5). However, In addition, we are not listing with K181) or waste being injected
we believe the additional data from the wastewaters generated at these facilities, underground. EPA did not receive
commenters provide useful information so there is no need for additional comments indicating that the newly
on the likely waste quantities generated. treatment of wastewater from the listed wastes are underground injected
Therefore, we have analyzed the production of dyes and/or pigments or that they are mixed with radioactive
commenters’ data and revised our (other than K181-derived wastewaters). wastes or with both radioactive wastes
estimated waste quantities affected by No commenters challenged either the and soil or debris.
this rule. We recognize that the actual variance determination or available Therefore, EPA is finalizing its
quantity of waste requiring commercial treatment or disposal capacity for decision not to grant a national capacity
treatment will probably be smaller due nonwastewater or wastewater forms of variance for wastewater and
to waste-specific assessments of actual K181 wastes. Therefore, we conclude nonwastewater forms of K181 wastes.
K181 CoC loadings, use of the that sufficient treatment or disposal We also are finalizing our decision not
contingent management exemptions, capacity is available to manage newly- to grant a national capacity variance for
facility closures, changes in product listed K181 wastes. hazardous soil and debris contaminated
formulations, or waste management As discussed in section IV.D, we are with the newly listed wastes,
practices. We also recognize the batch also finalizing the addition of the CoCs radioactive wastes mixed with K181 or
process nature of this industry and the in K181 with numerical standards to the contaminated soil or debris of K181, or
speed at which facilities may change constituent listed in F039 and the K181 wastes being injected
product formulations. Even relying on universal treatment standards. EPA does underground. The customary time
the larger quantities estimated for the not anticipate that waste volumes period of six months is sufficient to
proposed rule, we find more than subject to the treatment standards for allow facilities to determine whether
adequate waste management capacity F039 or characteristic wastes would their wastes are affected by this rule, to
exists to accommodate wastes that increase because of the addition of these identify onsite or commercial treatment
would be treated or disposed as a result organic constituents to F039 and the and disposal options, and to arrange for
of today’s rule. UTS lists. Based on available data, treatment or disposal capacity, if
waste generators already appear to be necessary. Therefore, LDR treatment
As described in section IV.D.3 above, required to comply with the treatment
EPA is finalizing numerical treatment standards for the affected wastes
requirements for other organic covered under today’s rule become
standards or methods of treatment as the constituents in F039 and characteristic
treatment standards for the CoCs of the effective when the listing
wastes. We received no comments, data, determinations become effective—the
newly listed K181 waste. We expect that or information to warrant any change of
the CoCs in the nonwastewater or earliest possible date. This conforms to
this conclusion. Therefore, we expect RCRA § 3004(h)(1), which indicates that
wastewater (if K181-derived wastewater that additional treatment due to the
is generated) forms of K181 are land disposal prohibitions must take
addition of the constituents to the F039 effect immediately when there is
amenable to the treatment by and UTS lists will not be required.
combustion or other technologies in a sufficient protective treatment capacity
When changing the treatment available for the waste.
treatment train. EPA estimates that, at requirements for wastes already subject
most, approximately 36,000 metric tons Finally, EPA may consider a case-by-
to LDR (including F039 wastes), EPA no case extension to the effective date
per year of nonwastewater forms of longer has authority to use RCRA
K181 may require alternative based on the requirements outlined in
§ 3004(h)(2) to grant a capacity variance 40 CFR 268.5, which includes a
commercial treatment and be managed to these wastes. However, EPA is guided
off site at a commercial hazardous waste demonstration that adequate alternative
by the overall objective of section treatment, recovery, or disposal capacity
treatment facility. Furthermore, EPA 3004(h), namely that treatment
anticipates that much less than 36,000 for the petitioner’s waste cannot
standards which best accomplish the reasonably be made available by the
metric tons per year of the wastes may goal of RCRA § 3004(m) (to minimize
require combustion capacity because effective date due to circumstances
threats posed by land disposal) should
not all of these wastes are expected to beyond the applicants’ control, and that
take effect as soon as possible,
exceed the mass loading limits. the petitioner has entered into a binding
consistent with availability of treatment
Furthermore, these wastes would not be contractual commitment to construct or
capacity.
hazardous if the nonwastewaters are For soil and debris contaminated with otherwise provide such capacity.
disposed in a landfill unit that meets K181, as indicated in the proposed rule, V. When Must Regulated Entities
liner design criteria specified in the we believe that the vast majority of Comply With the Provisions in Today’s
listing description, or are treated in contaminated soil and debris, if any, Final Rule?
certain combustion units. Therefore, will be managed on site and, therefore,
these wastes will not require treatment would not require substantial A. Effective Date
to meet LDR treatment standards. In any commercial treatment capacity. Thus, The effective date of today’s rule is
case, we estimate that the commercially we proposed not to grant a national August 23, 2005. These provisions,
available combustion capacity for capacity variance for hazardous soil and promulgated under HSWA authorities,
sludge, solid, and mixed media/debris/ debris contaminated with this newly will take effect in both the federal
devices is approximately 0.5 million listed waste. EPA received no comments regulations and authorized state
tons per year and, therefore, sufficient to regarding this issue. There also were no programs at that time.
B. Section 3010 Notification reporting (40 CFR 262.40 to 262.44), and CFR 270.70(a) and 270.10(e) by
Under RCRA § 3010, the import/export procedures (40 CFR providing notice under section 3010 and
Administrator may require all persons 262.50 through 262.60). The generator submitting a Part A permit application
who handle hazardous wastes to notify accumulation provisions of 40 CFR no later than August 23, 2005. Such
EPA of their hazardous waste 262.34 allow generators to accumulate facilities are subject to regulation under
management activities within 90 days hazardous wastes without obtaining 40 CFR part 265 until a permit is issued.
interim status or a permit only in certain In addition, under section 3005(e)(3)
after the wastes are identified or listed
specified units (container storage units, and 40 CFR 270.73(d), not later than
as hazardous. This requirement may be
tank systems, drip pads, or containment August 24, 2006, land disposal facilities
applied even to those generators,
buildings). These regulations also place newly qualifying for interim status
transporters, and treatment, storage, and
a limit on the maximum amount of time under section 3005(e)(1)(A)(ii) also must
disposal facilities (TSDFs) that have
that wastes can be accumulated in these submit a part B permit application and
previously notified EPA with respect to certify that the facility is in compliance
units. If K181 wastes are managed in
the management of other hazardous with all applicable groundwater
units that are not tank systems,
wastes. The Agency has decided to monitoring and financial responsibility
containers, drip pads, or containment
waive this notification requirement for requirements. If the facility fails to
buildings as described in 40 CFR
persons who handle wastes that are submit these certifications and a permit
262.34, accumulation of these wastes is
covered by today’s hazardous waste application, interim status will
subject to the requirements of 40 CFR
listing and already have (1) notified EPA terminate on that date.
parts 264 and 265, and the generator is
that they manage other hazardous required to obtain interim status and
wastes, and (2) received an EPA 2. Existing Interim Status Facilities
seek a permit (or modify interim status
identification number. The Agency has or a permit, as appropriate). Also, Pursuant to 40 CFR 270.72(a)(1), all
waived the notification requirement in persons who transport newly identified existing hazardous waste management
this case because it believes that most, hazardous wastes will be required to facilities (as defined in 40 CFR 270.2)
if not all, persons who manage the obtain an EPA identification number (if that treat, store, or dispose of the newly
wastes listed as hazardous in today’s they do not already have one) as listed K181 wastes and are currently
rule already have notified the Agency described above and will be subject to operating pursuant to interim status
and received an EPA identification the transporter requirements set forth in under section 3005(e) of RCRA, must
number. However, any person who 40 CFR part 263. file an amended part A permit
generates, transports, treats, stores, or Nonwastewaters that do not meet the application with EPA no later than the
disposes of this newly listed waste and mass loading levels in § 261.32(c) are effective date of today’s rule, (i.e.,
has not previously received an EPA not listed K181. Furthermore, in cases August 23, 2005). By doing this, the
identification number must obtain an where the wastes meet or exceed the facility may continue managing the
identification number pursuant to 40 mass loading limits, the wastes would newly listed wastes, pending final
CFR 262.12 to generate, transport, treat, also not be listed K181, provided the disposition of the permit application. If
store, or dispose of these hazardous nonwastewaters are disposed in a the facility fails to file an amended part
wastes by May 25, 2005, for K181. landfill unit or treated in a combustion A application by that date, the facility
Note that nonwastewaters would not unit as specified in the listing will not receive interim status for
become newly listed K181 wastes if the description. Therefore, persons who management of the newly listed
constituent mass loadings do not meet generate or transport wastes that meet hazardous wastes and may not manage
the levels in § 261.32(c). If the wastes either of these conditions are not subject those wastes until the facility receives
meet or exceed the mass loading limits, to the regulations governing hazardous either a permit or a change in interim
the wastes would also not be listed waste generation and transport in part status allowing such activity (40 CFR
K181, provided the nonwastewaters are 262 and 263. 270.10(g)).
disposed in a landfill unit or treated in
combustion unit as specified in the D. Facilities Subject to Permitting 3. Permitted Facilities
listing description. Persons who The listing for dyes and/or pigment Facilities that already have RCRA
generate only wastes that meet one of wastes, K181, in today’s rule is issued permits must request permit
these conditions need not notify EPA or pursuant to HSWA authority. Therefore, modifications if they want to continue
obtain an identification number, EPA will regulate the management of managing newly listed K181 wastes (see
because the waste would not be K181. the newly listed hazardous waste until 40 CFR 270.42(g)). This provision states
states are authorized to regulate these that a permittee may continue managing
C. Generators and Transporters the newly listed waste by following
wastes.
Persons who generate newly certain requirements, including
identified hazardous wastes may be 1. Facilities Newly Subject to RCRA submitting a Class 1 permit
required to obtain an EPA identification Permit Requirements modification request by the date on
number if they do not already have one Facilities that treat, store, or dispose which the waste or unit becomes subject
(as discussed in section V.B above). If of K181 wastes that are subject to RCRA to the new regulatory requirements (i.e.,
person(s) generate these wastes after the regulation for the first time by this rule the effective date of today’s rule),
effective date of this rule, they will be (that is, facilities that have not complying with the applicable
subject to the generator requirements set previously received a permit pursuant standards of 40 CFR parts 265 and 266
forth in 40 CFR part 262. These to section 3005 of RCRA and are not and submitting a Class 2 or 3 permit
requirements include standards for currently operating pursuant to interim modification request within 180 days of
hazardous waste determination (40 CFR status), might be eligible for interim the effective date.
262.11), compliance with the manifest status (see section 3005(e)(1)(A)(ii) of Generally, a Class 2 modification is
(40 CFR 262.20 through 262.23), pre- RCRA). To obtain interim status based appropriate if the newly listed wastes
transport procedures (40 CFR 262.30 on treatment, storage, or disposal of will be managed in existing permitted
through 262.34), generator accumulation such newly identified wastes, eligible units or in newly regulated tanks,
(40 CFR 262.34), record keeping and facilities are required to comply with 40 container units, or containment
buildings, and will not require disposed after the effective date of this authority take effect in authorized States
additional or different management regulation that are not excluded from at the same time that they take effect in
practices than those authorized in the the requirements of 40 CFR parts 264 unauthorized States. EPA is directed by
permit. A Class 2 modification requires and 265 are subject to both the general the statute to implement these
the facility owner to provide public closure and post-closure requirements requirements and prohibitions in
notice of the modification request, a 60- of subpart G of 40 CFR 264 and 265 and authorized States, including the
day public comment period, and an the unit-specific closure requirements issuance of permits, until the State is
informal meeting between the owner set forth in the applicable unit technical granted authorization to do so. While
and the public within the 60-day period. standards subpart of 40 CFR part 264 or States must still adopt HSWA-related
The Class 2 process includes a ‘‘default 265 (e.g., Subpart N for landfill units). provisions as State law to retain final
provision,’’ which provides that if the In addition, EPA promulgated a final authorization, EPA implements the
Agency does not reach a decision within rule that allows, under limited HSWA provisions in authorized States
120 days, the modification is circumstances, regulated landfills, until the States do so.
automatically authorized for 180 days. If surface impoundments, or land Authorized States are required to
the Agency does not reach a decision by treatment units to cease managing modify their programs only when EPA
the end of that period, the modification hazardous waste, but to delay subtitle C enacts federal requirements that are
is authorized for the life of the permit closure to allow the unit to continue to more stringent or broader in scope than
(see 40 CFR 270.42(b)). manage nonhazardous waste for a existing federal requirements. RCRA
A Class 3 modification is generally period of time prior to closure of the section 3009 allows the States to impose
appropriate if management of the newly unit (see 54 FR 33376, August 14, 1989). standards more stringent than those in
listed wastes requires additional or Units for which closure is delayed the federal program (see also 40 CFR
different management practices than continue to be subject to all applicable 271.1). Therefore, authorized States
those authorized in the permit or if 40 CFR parts 264 and 265 requirements. may, but are not required to, adopt
newly regulated land-based units are Dates and procedures for submittal of federal regulations, both HSWA and
involved. The initial public notification necessary demonstrations, permit non-HSWA, that are considered less
and public meeting requirements are the applications, and revised applications stringent than previous federal
same as for Class 2 modifications. are detailed in 40 CFR 264.113(c) regulations.
However, after the end of the 60-day through (e) and 265.113(c) through (e). B. How Does This Rule Affect State
public comment period, the Agency will
VI. State Authority and Compliance Authorization?
grant or deny the permit modification
request according to the more extensive We are finalizing today’s rule
A. How Are States Authorized Under pursuant to HSWA authority. The
procedures of 40 CFR Part 124. There is RCRA?
no default provision for Class 3 listing of the new K-waste is
modifications (see 40 CFR 270.42(c)). Under section 3006 of RCRA, EPA promulgated pursuant to RCRA section
Under 40 CFR 270.42(g)(1)(v), for may authorize qualified States to 3001(e)(2), a HSWA provision.
newly regulated land disposal units, administer their own hazardous waste Therefore, we are adding this rule to
permitted facilities must certify that the programs in lieu of the federal program Table 1 in 40 CFR 271.1(j), which
facility is in compliance with all within the State. Following identifies the Federal program
applicable 40 CFR part 265 groundwater authorization, EPA retains enforcement requirements that are promulgated
monitoring and financial responsibility authority under sections 3008, 3013, pursuant to HSWA and take effect in all
requirements no later than August 24, and 7003 of RCRA, although authorized States, regardless of their authorization
2006. If the facility fails to submit these states have primary enforcement status. The land disposal restrictions for
certifications, authority to manage the responsibility. The standards and these wastes are promulgated pursuant
newly listed wastes under 40 CFR requirements for State authorization are to RCRA section 3004(g) and (m), also
270.42(g) will terminate on that date. found at 40 CFR part 271. HSWA provisions. Table 2 in 40 CFR
Prior to enactment of the Hazardous 271.1(j) is modified to indicate that
4. Units and Solid Waste Amendments of 1984 these requirements are self-
Units in which newly listed (HSWA), a State with final RCRA implementing.
hazardous wastes are generated or authorization administered its States may apply for final
managed will be subject to all hazardous waste program entirely in authorization for the HSWA provisions
applicable requirements of 40 CFR part lieu of EPA administering the federal in 40 CFR 271.1(j), as discussed below.
264 for permitted facilities or 40 CFR program in that State. The federal Until the States receive authorization for
part 265 for interim status facilities, requirements no longer applied in the these more stringent HSWA provisions,
unless the unit is excluded from such authorized State, and EPA could not EPA would implement them. The
permitting by other provisions, such as issue permits for any facilities in that procedures and schedule for final
the wastewater treatment tank exclusion state, since only the state was authorization of State program
(40 CFR 264.1(g)(6) and 265.1(c)(10)) authorized to issue RCRA permits. modifications are described in 40 CFR
and the product storage tank exclusion When new, more stringent federal 271.21.
(40 CFR 261.4(c)). Examples of units to requirements were promulgated, the Section 271.21(e)(2) of EPA’s State
which these exclusions could never State was obligated to enact equivalent authorization regulations (40 CFR part
apply include landfills, land treatment authorities within specified time frames. 271) requires that States with final
units, waste piles, incinerators, and any However, the new federal requirements authorization modify their programs to
other miscellaneous units in which did not take effect in an authorized State reflect Federal program changes and
these wastes may be generated or until the State adopted the federal submit the modifications to EPA for
managed. requirements as State law. approval. The deadline by which the
In contrast, under RCRA section States would need to modify their
5. Closure 3006(g) (42 U.S.C. 6926(g)), which was programs to adopt this regulation is
All units in which newly listed added by HSWA, new requirements and determined by the date of promulgation
hazardous wastes are treated, stored, or prohibitions imposed under HSWA of a final rule in accordance with
§ 271.21(e)(2). Once EPA approves the carcinogenicity. EPA evaluates the data B. What Is the RQ for the K181 Waste?
modification, the State requirements for a hazardous substance for each In today’s final rule, EPA is assigning
would become RCRA Subtitle C primary criterion. To adjust the RQs, a one-pound RQ to the K181 waste. The
requirements. EPA ranks each criterion on a scale that RQ for each constituent contained in the
States with authorized RCRA corresponds to an RQ value of 1, 10, waste is presented in the table below.
programs already may have regulations 100, 1,000, or 5,000 pounds. For
similar to those in this final rule. These hazardous substances evaluated for TABLE VIII–1.—RQS FOR CONSTITU-
State regulations have not been assessed potential carcinogenicity, each ENTS IDENTIFIED IN K181 WASTE
against the Federal regulations finalized substance is assigned a hazard ranking
today to determine whether they meet of ‘‘high,’’ ‘‘medium,’’ or ‘‘low,’’ Constituent RQ
the tests for authorization. Thus, a State Constituents in K181 waste
corresponding to RQ levels of 1, 10, and stream (kg)
would not be authorized to implement 100 pounds, respectively. For each (40 CFR 302.4)
these regulations as RCRA requirements criterion, EPA establishes a tentative
until State program modifications are Aniline .................................. 5000 (2270)
RQ. A hazardous substance may receive o-Anisidine ........................... 100 (45.4)
submitted to EPA and approved, several tentative RQ values based on its
pursuant to 40 CFR 271.21. Of course, 4-Chloroaniline .................... 1000 (454)
particular intrinsic properties. The p-Cresidine .......................... 1* (0.454)
States with existing regulations that are lowest of the tentative RQs becomes the 2,4-Dimethylaniline .............. 1* (0.454)
more stringent than or broader in scope ‘‘primary criteria RQ’’ for that 1,2-Phenylenediamine ......... 1* (0.454)
than current Federal regulations may substance. 1,3-Phenylenediamine ......... 1* (0.454)
continue to administer and enforce their
regulations as a matter of State law. In After the primary criteria RQs are *RQ of 1 pound assigned to this constituent
assigned, EPA further evaluates because we have not yet developed a ‘‘waste
implementing the HSWA requirements, constituent RQ’’ for this substance.
EPA will work with the States under substances for their susceptibility to
agreements to avoid duplication of certain degradative processes. These are As noted in the proposed rule (68 FR
effort. secondary adjustment criteria. The 66213), we are not adjusting the RQ for
natural degradative processes are K181 at this time because we have not
VII. CERCLA Designation and biodegradation, hydrolysis, and yet developed a ‘‘reference RQ’’ for the
Reportable Quantities photolysis (BHP). If a hazardous following CoCs in this waste: p-
CERCLA (Comprehensive substance, when released into the cresidine; 2,4-dimethylaniline; 1,2-
Environmental Response, environment, degrades rapidly to a less phenylenediamine; and 1,3-
Compensation, and Liability Act of hazardous form by one or more of the phenylenediamine. Therefore, the RQ
1980) defines the term ‘‘hazardous BHP processes, EPA generally raises its for K181 will be one pound. As noted
substance’’ to include RCRA listed and RQ (as determined by the primary RQ elsewhere in this notice, we have
characteristic hazardous wastes. When adjustment criteria) by one level. dropped toluene-2,4-diamine as a
EPA adds a hazardous waste under Conversely, if a hazardous substance constituent of concern for K181. While
RCRA, the Agency also will add the degrades to a more hazardous product this chemical has an existing RQ, EPA
waste to its list of CERCLA hazardous after its release, EPA assigns an RQ to does not expect that its RQ will be
substances. EPA establishes a reportable the original substance equal to the RQ considered should the Agency decide to
quantity, or RQ, for each CERCLA for the more hazardous substance. propose any further adjustment to the
hazardous substance. EPA provides a RQ for K181 wastes.
list of the CERCLA hazardous The standard methodology used to Note, however, that all quantities of
substances along with their RQs in adjust the RQs for RCRA hazardous wastes generated during a calendar year
Table 302.4 at 40 CFR 302.4. If you are waste streams differs from the up to the mass loading limits are not
the person in charge of a vessel or methodology applied to individual listed K181 waste; only wastes
facility that releases a CERCLA hazardous substances. The procedure subsequently generated that meet or
hazardous substance in an amount that for assigning RQs to RCRA waste exceed the annual limits would be
equals or exceeds its RQ, then you must streams is based on the results of an hazardous waste. Wastes that are below
report that release to the National analysis of the hazardous constituents of the mass loading limits are excluded
Response Center (NRC) pursuant to the waste streams. The constituents of from the listing from their point of
CERCLA section 103. You also may each RCRA hazardous waste stream are generation, and would not be subject to
have to notify State and local identified in 40 CFR part 261, Appendix the CERCLA reporting requirements.
authorities. VII. EPA first determines an RQ for each Commenters urged EPA not to adopt
hazardous constituent within the waste the statutory RQ, but rather to adjust the
A. How Does EPA Determine Reportable stream using the methodology described RQ for K181 waste. They noted that
Quantities? above. The lowest RQ value of these EPA’s risk analysis for the proposal
Under CERCLA section 102(b)(1), constituents becomes the adjusted RQ indicates that a higher RQ is warranted.
hazardous substances are assigned a for the waste stream. When there are Commenters stated that it is
reportable quantity of one pound, unless hazardous constituents of a RCRA counterintuitive for a company to be
and until EPA changes the RQ by hazardous waste stream that are not able to dispose of tons of dyes and/or
regulation. EPA has wide discretion to CERCLA hazardous substances, the pigment production wastes as
adjust the RQ of the hazardous Agency develops an RQ, called a nonhazardous in a landfill, yet have to
substance(s). The Agency’s methodology ‘‘reference RQ,’’ for these constituents in report a release of just one pound of
involves an evaluation of the intrinsic order to assign an appropriate RQ to the K181 waste to the environment. They
physical, chemical, and toxic properties. waste stream (see 48 FR 23565, May 25, noted that EPA conceded that it would
The intrinsic properties, called 1983). In other words, the Agency be unreasonable to expect the CoCs to
‘‘primary criteria,’’ are aquatic toxicity, derives the RQ for waste streams based be present at concentrations higher than
mammalian toxicity (oral, dermal, and on the lowest RQ of all the hazardous 5,000 parts per million.
inhalation), ignitability, reactivity, constituents, regardless of whether they While we agree with the commenters
chronic toxicity, and potential are CERCLA hazardous substances. that an adjustment of the RQ may be
warranted based on the mass loading local authorities. After the release of an action,’’ as identified under point
limits and the landfill disposal RQ or more of any of those substances, number four above. Therefore, this
exclusion established in the final rule, you must report immediately to the action was submitted to OMB for
until we develop waste constituent RQs community emergency coordinator of review. Any substantive changes made
for p-cresidine; 2,4-dimethylaniline; 1,2- the local emergency planning committee in response to OMB review have been
phenylenediamine; and 1,3- for any area likely to be affected by the documented in the public record. The
phenylenediamine the RQ for K181 will release, and to the State emergency following paragraphs briefly summarize
remain at the statutory one-pound level. response commission of any State likely findings presented in the Economic
We will consider adjusting the RQ for to be affected by the release. Assessment 34 conducted for the
K181 after we develop these constituent Proposed Rule, substantive economic
RQs; however, the RQ for K181 will VIII. Statutory and Executive Order related issues brought up in stakeholder
remain one pound until such an Reviews comments and Agency responses, and
adjustment is made. A. Executive Order 12866: Regulatory revised findings in support of the final
Planning and Review action.
C. When Would I Need To Report a
Release of These Wastes Under Under Executive Order 12866 [58 FR 1. Summary of Proposed Rule Findings:
CERCLA? 51735 (October 4, 1993)], the Agency, in Costs, Economic Impacts, Benefits
Today’s final hazardous waste listing conjunction with the Office of The impacts of our proposed action
is based on the mass loadings of the Management and Budget (OMB), must were presented in two supporting
hazardous constituents in the wastes. determine whether a regulatory action is documents: Economic Assessment for
An RQ of one-pound is assigned for the ‘‘significant’’ and therefore subject to the Proposed Loadings-Based Listing of
waste based on the lowest RQ of the OMB review and the requirements of Non-Wastewaters from the Production
hazardous constituents in the waste. the Executive Order. The Order defines of Selected Organic Dyes, Pigments, and
Notification is required under CERCLA ‘‘significant regulatory action’’ as one Food, Drug, and Cosmetic Colorants,
when a waste meeting the listing that is likely to result in a rule that may: Final Report, November 2003, and
description and threshold for that (1) Have an annual effect on the Regulatory Flexibility Screening
hazardous waste is released into the economy of $100 million or more or Analysis for the Proposed Loadings-
environment in a quantity that equals or adversely affect in a material way the Based Listing of Non-Wastewaters from
exceeds the RQ for the waste. economy, a sector of the economy, the Production of Selected Organic
For CERCLA reporting purposes, the productivity, competition, jobs, the Dyes, Pigments, and Food, Drug, and
Clean Water Act mixture rule (40 CFR environment, public health or safety, or Cosmetic Colorants, Final Report,
302.6) may be adapted to apply to State, local, or tribal governments or November 2003.
releases of this waste when the quantity communities; We identified a total of 37 facilities in
(or mass limit) of all of the K181 (2) Create a serious inconsistency or the November 2003 Economic
hazardous constituents in the waste are otherwise interfere with an action taken Assessment that were expected to be
known and the waste meets the K181 or planned by another agency; impacted by the proposed action. These
listing description (i.e., any of the K181 (3) Materially alter the budgetary facilities were found to be operated by
mass loading levels are met or impact of entitlements, grants, user fees, 29 different companies. Of these
exceeded). In such a case, notification is or loan programs or the rights and companies, 15 were categorized as
required where an amount of waste is obligations of recipients thereof; or ‘‘small businesses’’ under the Small
released that contains an RQ or more of (4) Raise novel legal or policy issues Business Administration size
any hazardous substance contained in arising out of legal mandates, the definition.35 We estimated the total
the waste. When the quantity (or mass President’s priorities, or the principles quantity of potentially affected waste to
limit) of one or more of the K181 set forth in the Executive Order. range from 44,215 to 68,368 metric tons
hazardous constituents is not known, Pursuant to the terms of this per year. Aggregate nationwide
notification is required when the Executive Order, we have found that compliance costs were estimated to
quantity of K181 waste released equals this final action does not represent an range from $0.6 million/year to $4.3
or exceeds the RQ for the waste stream. economically significant regulatory million/year, depending upon
action, as defined under point number assumptions regarding total waste
D. How Would I Report a Release? one above. The total nationwide costs quantity affected and presence of
To report a release of K181 (or any associated with this final action are targeted constituents. Corporate level
other CERCLA hazardous substance) estimated to be less than $3 million per economic impacts were negligible,
that equals or exceeds its RQ, you must year. Furthermore, this final rule is not ranging from virtually zero to 0.52
immediately notify the National expected to adversely effect, in a percent of gross annual revenues. We
Response Center (NRC) as soon as you material way, the economy, a sector of determined that there were no
have knowledge of that release. The toll- the economy, productivity, competition, significant economic impacts on any
free telephone number of the NRC is 1– jobs, the environment, public health or small entities.
800–424–8802; in the Washington, DC, safety, or State, local, or tribal Benefits of the proposed action were
metropolitan area, the number is (202) governments or communities. The presented in a general qualitative
267–2675. annualized benefits associated with assessment. Types of benefits included
You may also need to notify State and today’s rule have not been monetized, the potential for reduced or avoided
local authorities. The Emergency but are believed to be less than $100 human health damage cases, avoided or
Planning and Community Right-to- million. However, this final rule has
Know Act (EPCRA) requires that owners been determined to potentially raise 34 Economic Assessment for the Proposed
and operators of certain facilities report novel legal or policy issues due to the Loadings-Based Listing of Non-wastewaters from
releases of CERCLA hazardous unique mass loading-based approach the Production of Selected Organic Dyes, Pigments,
and Food, Drug, and Cosmetic Colorants, Final
substances and EPCRA extremely used in the risk assessment modeling. Report, November 2003.
hazardous substances (see the list in 40 As a result, it has been determined that 35 Less than 750 total employees at the corporate
CFR part 355, Appendix A) to State and this rule is a ‘‘significant regulatory level.
reduced acute events, avoided or in the textile industry, coupled with presented in the EA were based only on
reduced resource damage, and avoided pressure from inexpensive imports.37 information that was publically
or reduced response costs. Depending However, we have no reliable source of available at the time.
upon actual or future exposure patterns, information that would indicate that We accept, with modifications, the
the primary benefits identified in the product production quantities (as waste quantity information provided by
preamble to the proposed rule were opposed to gross revenues) for affected the manufacturers/associations. Facility-
associated reductions in human health dye manufacturers are substantially specific quantities, where available by
and environmental effects from targeted different from estimates presented in the facility name, are generally accepted, as
releases. Increased waste minimization Economic Assessment. Thus, we expect identified. For the other facilities, we
practices were discussed as upstream waste quantities generated from this have derived waste quantity estimates
benefits potentially stimulated by the production, and corresponding waste based on the survey response
proposed action. management costs to be relatively information correlated to facility
unaffected. As discussed in section revenue rankings. These derived waste
2. Public Comments and Agency VIII.A.2.c below (see also the July 21, quantities are based only on the
Responses 2004 Revised Impacts Assessment publicly available data, and reflect our
a. Summary of Substantive Cost, memo), we believe that our low-end best attempt to assign the available
Economic, and Benefits Issues, and estimate of waste quantity generated per quantity data from the comments with
Responses. The Agency received 25 year reflects a reasonable approximation specific facilities (applying our revenue
public comments on the proposed rule. of adjusted quantities based on ranking estimates, as needed). Revised
Nearly all of these addressed some comments. Thus, economic impacts cost, economic impact, and benefit
aspect related to cost of compliance, estimated under this scenario may be estimates have been developed based on
economic impacts, and/or benefit of the considered a reasonable worst case this new waste quantity information
rule, as proposed. Related to these estimate when unadjusted for revenue (see below under Revised Findings).
issues, there were four categories of projections. We also developed d. Analytical Costs. Commenters
crucial concern presented by the economic impact estimates based on a expressed concern relating to some of
commenters: industry profile/ linear reduction in compliance costs our assumptions and determinations
characterization, waste quantities, corresponding to adjusted waste regarding analytical costs, especially as
analytical costs, and benefits (i.e., need quantities, and assuming gross revenues they related to waste characterization,
for the rule). A summary of these issues were 100 percent (2-fold) overstated. process knowledge, and new method
and the Agency’s responses are Economic impacts under this scenario development. Commenters indicated a
presented below. Stakeholder comments were found to still be less than 1 percent perceived need to take a large number
are addressed in more detail in the of annual gross revenues (see section of samples due to the batch operations.
Agency’s response-to-comment VIII.A.3; more details are provided in There was also concern that processor
document,36 available in the docket the July 21, 2004 Revised Impacts knowledge would have to be buttressed
established for today’s action. Assessment memo). by at least limited sampling in order to
b. Industry Profile/Characterization. c. Waste Quantities. Commenters have adequate proof that wastes
Numerous commenters indicated that indicated that waste quantities generated were eligible for the
the profiles presented in the Economic presented in the November 2003 exclusion. For wastes that are
Assessment were overly optimistic Economic Assessment were determined by the generator to be
concerning the projected growth and substantially overestimated. New nonhazardous, commenters raised the
general health of the dyes and pigment information was provided regarding concern that landfills may refuse the
potentially affected quantities of waste, or require certification to track
industries. Additional plant closures
nonwastewaters. Some of this the annual mass loadings. Commenters
were noted. In addition, several
information was facility-specific. Most also raised technical issues relating to
commenters noted that products
information, however, was derived from the development of analytical methods
affected by the proposed rulemaking,
association survey responses. These for sampling the CoCs to be added to 40
e.g., azo dyes and pigments, tend to be
new survey data were linked to CFR Part 261 Appendix VIII.
experiencing lower growth rates and
individual facilities by number only. Specifically, there were concerns that
profitability margins than other product
None of the waste quantity information the development of appropriate
lines from the dyes and pigments
provided in comments was claimed as analytical methods would be more
industries.
confidential business information. complex and costly than estimated in
Our determination of average annual the proposal.
growth and industry health, as The November 2003 Economic
Assessment (EA) presented both high In the November 2003 Economic
presented in the November 2003 Assessment, we included sampling and
Economic Assessment, was based on the and low estimates for potentially
affected nonwastewaters. We recognize analysis costs for facilities assumed to
best publicly available information at be generating greater than 1,000 metric
the time. However, upon detailed that the total ‘‘high estimate’’ quantity,
as presented in the EA represents an tons of potentially impacted
review of the public comments, and nonwastewaters per year. Facilities
review of public information sources overestimation. However, our ‘‘low
estimate’’ appears to represent a good generating less than 1,000 metric tons/
available after proposal, we find that our year were assumed to use operator
assumption of revenues increasing by an approximation of total quantity, as
knowledge. While the rule as proposed
average of 3 percent per year was overly compared to data presented by the
did not require any specific number of
optimistic. This may be especially true commenters. This ‘‘low estimate’’ is
samples, sampling procedure, or
for dye manufacturers where production approximately 22 percent greater than
analytical methods for waste
has been plagued by downward trends the total quantity derived from
characterization or determination of
commenter data. The waste quantities
36 Response to Comments Document: Hazardous
mass-loading limits, the Economic
Waste Listing Determination for Dyes and/or 37 PR Newswire, 2004 (March 26), Synalloy Assessment applied conservative
Pigments Manufacturing Wastes (Final Rule), Corporation Announces Fourth Quarter Results assumptions for the development of cost
February 2005. Financial Services News. estimates. We assumed 15 samples per
wastestream for initial characterization, would independently develop the there were few facilities that generate
and an additional five samples per year analytical methods, for a total wastes with the CoCs, and that the only
(including the first year) to assess development cost of $61,171 ($20,390 constituent of concern that resulted in
stream fluctuations. Annual retesting is per laboratory). A five-year capital substantial risk to human health and the
assumed to continue for three recovery factor at 7 percent (0.24389) environment under current management
consecutive years to cover variations in was applied to the development cost. practices was toluene-2,4-diamine,
processes and products. It was also Development costs were spread equally which they argued should be (and has
assumed that the three-year time period across all facilities generating waste been) deleted. Furthermore, commenters
would allow the generator to determine with the CoCs. believed that the overestimation of
if any process fluctuations, waste The annual development cost per dye waste quantities, as discussed above,
changes, or minor process changes may and pigment facility was estimated at results in exaggerated benefits
alter the waste stream characterization $1,083 (assuming the waste must be associated with compliance
from nonhazardous to hazardous. sampled for all CoCs). In addition to this management.
We believe our assumptions for waste annual development cost, the analytical The Agency believes that, to the
stream characterization and annual cost (assuming all eight proposed extent that dye, pigment and FD&C
retesting reflect a very conservative cost constituents) is estimated to be $1,089 colorant wastes are managed in landfills
scenario for facilities generating greater per sample. Thus, assuming five that do not meet the liner requirements
than 1,000 metric tons of potentially samples per year, total annual costs in 40 CFR 258.40, 264.301, or 265.301,
affected nonwastewaters per year. For would be $1,306 per sample [this is waste management practices have the
facilities generating less than 1,000 based on five samples at $1,089/sample, potential to contaminate groundwater,
metric tons, process knowledge may be plus $1,083 passed through resulting in greater risk to human health
used. Proper documentation of the development costs, equals $6,530. and the environment. To the extent that
process used to generate the waste (e.g., Dividing this by five samples per year all wastes are managed in compliant
raw materials, quantities, reactions, and equals $1,306 per sample]. This total landfills, there would be minimal
typical constituent concentrations) is analytical cost per sample is within the benefit from the listing. However, the
expected to be adequate to demonstrate range of $1,000 to $3,000 per sample, as Agency is uncertain of industry claims
full process knowledge. Facilities that identified by commenters. With the that all wastes are so managed, nor is it
are uncomfortable with this approach elimination of toluene-2,4-diamine from clear that without the regulatory action,
may choose to purchase insurance or the list of CoCs, analytical method current waste management practices
implement a testing procedure. development costs will be lower would not change to higher risk
However, the Agency is not requiring because generators can avoid all testing landfilling.
such options. requirements by certifying that their
We believe that the potential for 3. Revised Findings
wastes are being managed in landfill
landfills to require certification to track units that meet the liner design We have revised our cost, economic
the annual mass loadings is highly requirements (or treated by combustion) impact, and benefits estimates for the
unlikely (and was not raised in as specified in the listing description. final rule. These revisions are based on
comments by any waste management Furthermore, the method costs would the new waste quantity information
firm), particularly in light of our also be reduced because we have presented in public comments, and rule
modification of the proposal to remove modified the regulations to allow use of modifications. The scope and impacts of
the proposed (c)(2) requirements that knowledge for the problematic analyte, this final action do not warrant the
would have prohibited subtitle D 1,2-phenylenediamine. completion of a full revised Economic
landfilling once a waste’s mass loading Therefore, the Agency believes that Assessment and Regulatory Flexibility
of toluene-2,4-diamine exceeded the the analytical costs and assumptions Screening Analysis (RFSA).
proposed (c)(2) limit. However, if for applied in our proposed action, as The total potentially affected
some reason a particular landfill were to summarized above, represent a very nonwastewater quantity presented in
reject the waste outright, other subtitle conservative (high) cost estimate and the November 2003 Economic
D landfills are prevalent. Additional will maintain these costs for estimating Assessment (EA) ranged from 44,215
costs from switching subtitle D landfills impacts associated with the final action. metric tons/year to 68,368 metric tons/
would be minimal due to the relatively Today’s final action does not require year. Aggregate annual compliance costs
high number of available subtitle D any specific number of samples, associated with these quantities ranged
landfills within similar transportation sampling type, or analytical methods. from $0.6 million/year to $4.3 million/
distances. The actual number of samples necessary year for the proposed regulatory
For the development of analytical to appropriately represent the waste will approach (Economic Assessment, Table
methods for sampling the CoCs to be be determined by the generator. 5–1). Corresponding economic impacts
added to 40 CFR part 261 Appendix e. Benefits. Commenters expressed were found to range from negligible to
VIII, we assumed that the industry concern over the lack of concrete benefit 0.52 percent, when measured as the
would utilize common laboratories to estimates in support of the proposed ratio of compliance costs to gross
share the costs for developing analytical rulemaking. Several commenters corporate revenues (Economic
procedures. All facilities are assumed to questioned the need for the regulation Assessment, Table 5–7). Cost estimates
use one of three contracting analytical due to the lack of quantified and associated only with the low waste
laboratories to perform the analyses. monetized benefits, resulting in a quantity estimate (44,215 metric tons),
The development costs were spread perceived unsubstantiated actual risk to ranged from $0.6 million/year to $2.9
across all dye and pigment humans or the environment from the million/year, with corresponding
manufactures generating more than existing management of these wastes. economic impacts ranging from
1,000 metric tons and selected Commenters noted that the wastes of negligible to 0.29 percent.
‘‘expanded scope’’ facilities known (at concern are currently managed in lined The revised total waste quantity, as
the time of the proposal) to generate landfills with little or no risk derived from public comments, is
waste with constituent(s) of concern. documented by the risk assessment for estimated at 36,142 metric tons/year.
EPA identified three laboratories that this scenario. Commenters noted that The cost and economic impact findings
associated with our ‘‘low estimate’’ U.S.C. 3501 et seq. The information Burden means the total time, effort, or
waste quantity (44,215 MT/yr), as collection requirements are not financial resources expended by persons
presented above, may be considered a enforceable until OMB approves them. to generate, maintain, retain, or disclose
reasonable approximation of impacts The Information Collection Request or provide information to or for a
associated with the final rule. However, (ICR) Supporting Statement prepared by Federal agency. This includes the time
more refined estimates may be EPA (available in the public docket for needed to review instructions; develop,
developed assuming a linear this final rule) has been assigned EPA acquire, install, and utilize technology
relationship between total waste ICR number 1189.13 and systems for the purposes of
quantity and cost/economic impacts. The effect of listing the wastes collecting, validating, and verifying
Under this scenario, total costs and described earlier is to subject certain information, processing and
economic impacts would decline by wastes generated by the dyes and maintaining information, and disclosing
approximately 18 percent, pigments industries to management and and providing information; adjust the
corresponding to the decline in total treatment standards under the Resource existing ways to comply with any
waste quantity (44,215 MT/yr to 36,142 Conservation and Recovery Act (RCRA). previously applicable instructions and
MT/yr). Under this approach, the total This final rule represents an requirements; train personnel to be able
compliance costs for the final rule incremental increase in burden for to respond to a collection of
would range from an estimated $0.49 generators and subsequent handlers of information; search data sources;
million per year to $2.38 million/year, the newly listed wastes, and affects the complete and review the collection of
with economic impacts ranging from existing RCRA information collection information; and transmit or otherwise
negligible to 0.238 percent of gross requirements for the Land Disposal disclose the information.
corporate revenues. These findings Restrictions. An Agency may not conduct or
assume all other cost parameters are In addition to complying with the sponsor, and a person is not required to
unchanged (e.g., analytical assumptions, existing subtitle C recordkeeping and respond to a collection of information,
transportation costs, administrative). In reporting requirements for the newly unless it displays a currently valid OMB
reality, the more refined cost and listed waste stream, EPA is requiring control number. The OMB control
economic impact estimates would be that facilities generating organic dyes numbers for EPA’s regulations are listed
even lower due to the elimination of and/or pigment nonwastewaters to be in 40 CFR part 9. When this ICR is
toluene-2,4-diamine as a CoC for the able to document their compliance with approved by OMB, the Agency will
final rule and the likely use by industry the new K181 demonstration (through publish a technical amendment to 40
of the conditional exemptions. use of knowledge or testing) and CFR part 9 in the Federal Register to
Some commenters have suggested that recordkeeping requirements, as well as display the OMB control number for the
our estimated gross annual corporate the conditions provided for exemption approved information collection
revenue estimates may be overstated from the scope of the conditional requirements contained in this final
due to overly optimistic growth hazardous waste listing promulgated rule.
projections for the affected industries, as today. This requirement is necessary to
ensure that in-scope nonwastewaters are C. Regulatory Flexibility Act
derived from some of our public
sources. This issue pertains primarily to managed in a manner that is safe for The Regulatory Flexibility Act (RFA)
private or privately held companies human health and the environment. of 1980, as Amended by the Small
where no independent revenue source As a result of the final rule, EPA Business Regulatory Enforcement
was identified (see Economic estimates that up to 33 facilities may be Fairness Act of 1996 (SBREFA), 5 U.S.C.
Assessment, Table 5–3). An subject to an additional burden for 601 et seq., generally requires an agency
overestimate of gross revenues would be existing and new RCRA information to prepare a regulatory flexibility
reflected in an artificially low economic collection requirements for the newly analysis of any rule subject to notice
impact estimate. We assessed this listed wastes. We have estimated the and comment rulemaking requirements
possibility and found that, even under annual hour and cost burden for these under the Administrative Procedures
the most highly impacted scenario, facilities to comply with the existing Act or any other statute. This is required
impacts would remain less than 1 and new recordkeeping and reporting unless the agency certifies that the rule
percent (see July 21 memo, Revised requirements associated with generating will not have a significant economic
Impacts Assessment). and managing K181 wastes. The hourly impact on a substantial number of small
Reduced waste quantities, as recordkeeping burden from the new entities. Small entities include small
discussed above, would correspond to requirements ranges between 6.5 and businesses, small organizations, and
reduced benefits from compliant 20.40 hours per respondent per year. small governmental jurisdictions. The
management. However, we continue to This burden includes time for reading Agency has determined that no small
believe that, to the extent that affected the regulations, determining whether organizations or small governmental
dye, pigment and FD&C colorant wastes organic dyes and/or pigment production jurisdictions are impacted by today’s
may be managed in landfills not nonwastewaters exceed regulatory final rulemaking.
compliant with 40 CFR section 258.40, listing levels, and keeping For purposes of assessing the impacts
264.301 or 265.301, these wastes have documentation on site, as specified. We of today’s final determination on
the potential to contaminate estimate that these facilities would businesses, a small business is defined
groundwater, resulting in unacceptable incur an annual burden of either by the number of employees or by
risk to human health and the approximately 563 hours and $123,776 the annual dollar amount of sales/
environment. in carrying out new information revenues. The level at which an entity
collection requirements. We also is considered small is determined for
B. Paperwork Reduction Act estimated that these facilities would each North American Industry
The information collection incur an annual burden of Classification System (NAICS) code by
requirements in this rule have been approximately 2 hours and $86,102 in the Small Business Administration
submitted for approval to the Office of carrying out existing information (SBA). Organic dye and pigment
Management and Budget (OMB) under collection requirements. See the ICR manufacturers are classified under
the Paperwork Reduction Act (PRA), 44 Supporting Statement for details. NAICS 325132. The SBA has
determined that manufacturers Today’s rule is not subject to the significantly or uniquely affect the
classified under this NAICS code are requirements of section 203 of UMRA. communities of Indian tribal
‘‘small businesses’’ if their total Section 203 requires agencies to develop governments, nor impose substantial
corporate employment is less than 750 a small government Agency plan before direct compliance costs. No tribal
persons. establishing any regulatory governments own or operate potentially
After considering the economic requirements that may significantly or impacted organic dye and/or pigment
impacts of today’s final rule on small uniquely affect small governments, manufacturing facilities. Furthermore,
entities, I certify that this action will not including tribal governments. EPA has this action will not impose any
have a significant economic impact on determined that this rule will not enforcement or review requirements for
a substantial number of small entities. significantly or uniquely affect small tribal entities. Thus, this rule will not
The small entities directly regulated by governments. have substantial direct effects on tribal
this final rule are organic dye and governments, on the relationship
pigment manufacturers classified under E. Executive Order 13132: Federalism
between the Federal government and
NAICS 325132. We have determined Executive Order 13132, entitled Indian tribes, or on the distribution of
that all potentially impacted small ‘‘Federalism’’ (64 FR 43255, August 10, power and responsibilities between the
businesses are projected to experience 1999), requires EPA to develop an Federal government and Indian tribes,
compliance cost impacts of less than 1 accountable process to ensure as specified in the Order.
percent of gross annual revenues. Based ‘‘meaningful and timely input by State
on the available information, there are and local officials in the development of G. Executive Order 13045: Protection of
ten potentially affected firms that regulatory policies that have federalism Children From Environmental Health
constitute small entities under the size implications.’’ ‘‘Policies that have and Safety Risks
definition established by the SBA. federalism implications’’ are defined in Executive Order 13045: ‘‘Protection of
Assuming all ten companies generate the Executive Order to include Children from Environmental Health
wastes containing any of the regulations that have ‘‘substantial direct Risks and Safety Risks’’ (62 FR 19885,
constituents of concern, no company effects on the States, on the relationship April 23, 1997) applies to any rule that:
would experience impacts greater than between the national government and (1) Is determined to be ‘‘economically
0.29 percent of annual gross revenues the States, or on the distribution of significant’’ as defined under E.O.
(see July 21, 2004 memo: Revised power and responsibilities among the 12866, and (2) concerns an
Impacts Assessment). various levels of government.’’ environmental health or safety risk that
Although this final rule will not have Today’s final rule does not have
EPA has reason to believe may have a
a significant economic impact on a federalism implications. No State or
disproportionate effect on children. If
substantial number of small entities, local governments own or operate
the regulatory action meets both criteria,
EPA nonetheless has tried to reduce the potentially impacted organic dye and/or
the Agency must evaluate the
impact of this rule on small entities. pigment manufacturing facilities.
environmental health or safety effects of
Today’s final action was designed to Furthermore, this action will not impose
the rule on children, and explain why
mitigate economic impacts to small excessive enforcement or review
the regulation is preferable to other
entities while, at the same time ensuring requirements. Thus, this rule will not
potentially effective and reasonably
full protection of human health and the have substantial direct effects on the
feasible alternatives considered by the
environment. This was accomplished States, on the relationship between the
Agency.
through our innovative mass-based national government and the States, or
approach for the determination of on the distribution of power and Today’s final rule is not subject to the
regulatory levels. Our waste quantity- responsibilities among the various Executive Order because it is not
based implementation approach also levels of government, as specified in the economically significant as defined
helped mitigate potential impacts to Order. Executive Order 13132 does not under point one of the Order, and
small entities. apply to this final rule. because the Agency does not have
reason to believe the environmental
D. Unfunded Mandates Reform Act F. Executive Order 13175: Consultation health or safety risks addressed by this
Signed into law on March 22, 1995, and Coordination With Indian Tribal action present a disproportionate risk to
the Unfunded Mandates Reform Act Governments children. However, the Agency is
(UMRA) supersedes Executive Order Executive Order 13175, entitled particularly concerned with
12875, reiterating the previously ‘‘Consultation and Coordination with environmental threats to children.
established directives while also Indian Tribal Governments’’ (65 FR The topic of environmental threats to
imposing additional requirements for 67249, November 6, 2000), requires EPA children’s health is growing in
federal agencies issuing any regulation to develop an accountable process to importance as scientists, policy makers,
containing an unfunded mandate. ensure ‘‘meaningful and timely input by and community leaders recognize the
Today’s final rule is not subject to the tribal officials in the development of extent to which children are particularly
requirements of sections 202, 204 and regulatory policies that have tribal vulnerable to environmental hazards.
205 of UMRA. In general, a rule is implications.’’ ‘‘Policies that have tribal Recent EPA actions are in the forefront
subject to the requirements of these implications’’ is defined in the of addressing environmental threats to
sections if it contains ‘‘Federal Executive Order to include regulations the health of children. Setting
mandates’’ that may result in the that have ‘‘substantial direct effects on environmental standards that address
expenditure by State, local, and tribal one or more Indian tribes, on the combined exposures and that are
governments, in the aggregate, or by the relationship between the Federal protective of the heightened risks faced
private sector, of $100 million or more government and the Indian tribes, or on by children are both goals named within
in any one year. Today’s final rule does the distribution of power and EPA’s ‘‘National Agenda to Protect
not result in $100 million or more in responsibilities between the Federal Children’s Health from Environmental
expenditures. The aggregate annualized government and Indian tribes.’’ Threats.’’ Areas for potential reductions
compliance costs for today’s rule are Today’s final rule does not have tribal in risks and related health effects are all
projected to be less than $3 million. implications. This rule will not targeted as priority issues within EPA’s
September 1996 report, Environmental adverse effects and impacts the List of Subjects
Health Threats to Children. alternatives might have upon energy
A few significant physiological 40 CFR Part 148
supply, distribution, or use.
characteristics are largely responsible This final rule is not subject to Administrative practice and
for children’s increased susceptibility to Executive Order 13211, ‘‘Actions procedure, Hazardous waste, Reporting
environmental hazards. First, children Concerning Regulations That Affect and record keeping requirements, Water
eat proportionately more food, drink Energy Supply, Distribution, or Use’’ (66 supply.
proportionately more fluids, and breathe FR 28355 (May 22, 2001)) because it is 40 CFR Part 261
more air per pound of body weight than not an economically significant
do adults. As a result, children Environmental protection, Hazardous
regulatory action under Executive Order
potentially experience greater levels of materials, Waste treatment and disposal,
12866. Furthermore, it is not expected Recycling.
exposure to environmental threats than to have a significant adverse impact on
do adults. Second, because children’s the supply, distribution, or use of 40 CFR Part 268
bodies are still in the process of energy.
development, their immune systems, Environmental protection, Hazardous
neurological systems, and other J. National Technology Transfer and materials, Waste management,
immature organs can be more easily and Advancement Act Reporting and record keeping
considerably affected by environmental requirements, Land Disposal
Section 12(d) of the National Restrictions, Treatment Standards.
hazards. The connection between these Technology Transfer and Advancement
physical characteristics and children’s Act of 1995 (‘‘NTTAA’’), Pub L. 104– 40 CFR Part 271
susceptibility to environmental threats 113, section 12(d) (15 U.S.C. 272 note) Environmental protection,
was a consideration in developing the directs EPA to use voluntary consensus Administrative practice and procedure,
hazardous waste listing under today’s standards in its regulatory activities Confidential business information,
final action. unless to do so would be inconsistent Hazardous material transportation,
H. Executive Order 12898: with applicable law or otherwise Hazardous waste, Indians—lands,
Environmental Justice impractical. Voluntary consensus Intergovernmental relations, Penalties,
Executive Order 12898, ‘‘Federal standards are technical standards (e.g., Reporting and record keeping
Actions to Address Environmental materials specifications, test methods, requirements, Water pollution control,
Justice in Minority Populations and sampling procedures, and business Water supply.
Low-Income Populations’’ (February 11, practices) that are developed or adopted
40 CFR Part 302
1994), is designed to address the by voluntary consensus standards
bodies. The NTTAA directs EPA to Environmental protection, Air
environmental and human health
provide Congress, through OMB, pollution control, Chemicals,
conditions of minority and low-income
explanations when the Agency decides Emergency Planning and Community
populations. EPA is committed to
not to use available and applicable Right-to-Know Act, Extremely
environmental justice for all citizens
voluntary consensus standards. hazardous substances, Hazardous
and has assumed a leadership role in
This final rule does not involve the chemicals, Hazardous materials,
such initiatives. The Agency’s goals are
establishment of voluntary technical Hazardous materials transportation,
to ensure that no segment of the
standards; thus, the requirements of Hazardous substances, Hazardous
population, regardless of race, color,
section 12(d) of the National wastes, Intergovernmental relations,
national origin, income, or net worth
Technology Transfer and Advancement Natural resources, Reporting and record
bears disproportionately high and
Act of 1995 (15 U.S.C. 272 note) do not keeping requirements, Superfund,
adverse human health and/or
apply. Waste treatment and disposal, Water
environmental impacts as a result of
pollution control, Water supply.
EPA’s policies, programs, and activities. K. The Congressional Review Act (5
We have no data indicating that today’s Dated: February 15, 2005.
U.S.C. 801 et seq., as Added by the
final rule would result in Stephen L. Johnson,
Small Business Regulatory Enforcement
disproportionately negative impacts on Fairness Act of 1996) Acting Administrator.
minority or low income communities. ■ For the reasons set out in the preamble,
The Congressional Review Act, 5
I. Executive Order 13211: Actions U.S.C. 801 et seq., as added by the Small title 40, chapter I of the Code of Federal
Affecting Energy Supply, Distribution, Business Regulatory Enforcement Regulations is amended as follows:
or Use Fairness Act of 1996, generally provides PART 148—HAZARDOUS WASTE
Executive Order 13211, ‘‘Actions that before a rule may take effect, the INJECTION RESTRICTIONS
Concerning Regulations That Affect agency promulgating the rule must
Energy Supply, Distribution, or Use’’ submit a rule report, which includes a ■ 1. The authority citation for part 148
(May 18, 2001), addresses the need for copy of the rule, to each House of the continues to read as follows:
regulatory actions to more fully consider Congress and to the Comptroller General Authority: Sec. 3004, Resource
the potential energy impacts of the of the United States. EPA submitted a Conservation and Recovery Act, 42 U.S.C.
proposed rule and resulting actions. report containing this final rule, and 6901, et seq.
Under the Order, agencies are required other required information, to the U.S. ■ 2. Section 148.18 is amended by
to prepare a Statement of Energy Effects Senate, the U.S. House of revising paragraph (l) and adding
when a regulatory action may have Representatives, and the Comptroller paragraph (m) to read as follows:
significant adverse effects on energy General of the United States prior to
supply, distribution, or use, including publication in the Federal Register. A § 148.18 Waste-specific prohibitions—
impacts on price and foreign supplies. ‘‘major rule’’ cannot take effect until 60 newly listed and identified wastes.
Additionally, the requirements obligate days after it is published in the Federal * * * * *
agencies to consider reasonable Register. This action is not a ‘‘major (l) Effective August 23, 2005, the
alternatives to regulatory actions with rule’’ as defined by 5 U.S.C. 804(2). waste specified in 40 CFR 261.32 as
EPA Hazardous Waste Number K181 is solid wastes have been disposed, 2007, leachate or gas condensate
prohibited from underground injection. provided that: derived from K181 will no longer be
(m) The requirements of paragraphs (i) The solid wastes disposed would exempt if it is stored or managed in a
(a) through (l) of this section do not meet one or more of the listing surface impoundment prior to
apply: descriptions for Hazardous Waste Codes discharge. There is one exception: if the
(1) If the wastes meet or are treated to K169, K170, K171, K172, K174, K175, surface impoundment is used to
meet the applicable standards specified K176, K177, K178 and K181 if these temporarily store leachate or gas
in subpart D of 40 CFR part 268; or wastes had been generated after the condensate in response to an emergency
(2) If an exemption from a prohibition effective date of the listing; situation (e.g., shutdown of wastewater
has been granted in response to a (ii) The solid wastes described in treatment system), provided the
petition under subpart C of this part; or paragraph (b)(15)(i) of this section were impoundment has a double liner, and
(3) During the period of extension of disposed prior to the effective date of provided the leachate or gas condensate
the applicable effective date, if an the listing; is removed from the impoundment and
extension has been granted under (iii) The leachate or gas condensate do continues to be managed in compliance
§ 148.4. not exhibit any characteristic of with the conditions of this paragraph
hazardous waste nor are derived from (b)(15)(v) after the emergency ends.
PART 261—IDENTIFICATION AND
any other listed hazardous waste; * * * * *
LISTING OF HAZARDOUS WASTE (iv) Discharge of the leachate or gas
■ 3. The authority citation for part 261 condensate, including leachate or gas Subpart D—[Amended]
continues to read as follows: condensate transferred from the landfill
to a POTW by truck, rail, or dedicated ■ 5. Section 261.32 is amended by:
Authority: 42 U.S.C. 6905, 6912(a), 6921,
pipe, is subject to regulation under ■ a. Designating the existing text and
6922, 6924(y), and 6938.
sections 307(b) or 402 of the Clean table as paragraph (a),
Water Act.
Subpart A—[Amended] (v) As of February 13, 2001, leachate ■ b. In the table by adding a new entry
or gas condensate derived from K169– in alphanumeric order (by first column)
■ 4. Section 261.4 is amended by under the heading ‘‘Organic Chemicals’’,
revising paragraph (b)(15) to read as K172 is no longer exempt if it is stored
or managed in a surface impoundment ■ c. Adding paragraphs (b), (c) and (d).
follows:
prior to discharge. As of November 21, The revisions and additions read as
§ 261.4 Exclusions. 2003, leachate or gas condensate follows:
* * * * * derived from K176, K177, and K178 is
(b) * * * no longer exempt if it is stored or § 261.32 Hazardous wastes from specific
(15) Leachate or gas condensate managed in a surface impoundment sources.
collected from landfills where certain prior to discharge. After February 26, (a) * * *
Industry and EPA Hazard

Hazardous waste
hazardous waste No. code
* * * * * * *
Organic Chemicals
* * * * * * *
K181 ............................ Nonwastewaters from the production of dyes and/or pigments (including nonwastewaters commingled at (T)
the point of generation with nonwastewaters from other processes) that, at the point of generation, con-
tain mass loadings of any of the constituents identified in paragraph (c) of this section that are equal to
or greater than the corresponding paragraph (c) levels, as determined on a calendar year basis. These
wastes will not be hazardous if the nonwastewaters are: (i) disposed in a Subtitle D landfill unit subject
to the design criteria in § 258.40, (ii) disposed in a Subtitle C landfill unit subject to either § 264.301 or
§ 265.301, (iii) disposed in other Subtitle D landfill units that meet the design criteria in § 258.40,
§ 264.301, or § 265.301, or (iv) treated in a combustion unit that is permitted under Subtitle C, or an on-
site combustion unit that is permitted under the Clean Air Act. 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 §§ 261.21–261.24 and 261.31–
261.33 at the point of generation. Also, the listing does not apply to wastes generated before any an-
nual mass loading limit is met.
* * * * * * *
* * * * * include azo, monoazo, diazo, triazo, and packaging of dyes and/or pigments,
(b) Listing Specific Definitions: (1) For polyazo, azoic, benzidine, and are not included in the K181 listing.
the purposes of the K181 listing, dyes pyrazolone products. Triarylmethane (c) K181 Listing Levels.
and/or pigments production is defined products include both triarylmethane Nonwastewaters containing constituents
to include manufacture of the following and triphenylmethane products. Wastes in amounts equal to or exceeding the
product classes: dyes, pigments, or FDA that are not generated at a dyes and/or following levels during any calendar
certified colors that are classified as azo, pigments manufacturing site, such as year are subject to the K181 listing,
triarylmethane, perylene or wastes from the offsite use, formulation, unless the conditions in the K181 listing
anthraquinone classes. Azo products are met.
Chemical Mass (i) Each year document the basis for representative waste samples for the
Constituent abstracts levels determining that the annual quantity of K181 constituents reasonably expected
No. (kg/yr) nonwastewaters expected to be to be present in the wastes. At a
generated will be less than 1,000 metric minimum, the plan must include:
Aniline ....................... 62–53–3 9,300
tons. (A) A discussion of the number of
o-Anisidine ................ 90–04–0 110
4-Chloroaniline .......... 106–47–8 4,800
(ii) Track the actual quantity of samples needed to characterize the
p-Cresidine ............... 120–71–8 660 nonwastewaters generated from January wastes fully;
2,4-Dimethylaniline ... 95–68–1 100 1 through December 31 of each year. If, (B) The planned sample collection
1,2- at any time within the year, the actual method to obtain representative waste
Phenylenediamine 95–54–5 710 waste quantity exceeds 1,000 metric samples;
1,3- tons, the generator must comply with (C) A discussion of how the sampling
Phenylenediamine 108–45–2 1,200 the requirements of paragraph (d)(3) of plan accounts for potential temporal
this section for the remainder of the and spatial variability of the wastes.
(d) Procedures for demonstrating that year. (D) A detailed description of the test
dyes and/or pigment nonwastewaters (iii) Keep a running total of the K181 methods to be used, including sample
are not K181. The procedures described constituent mass loadings over the preparation, clean up (if necessary), and
in paragraphs (d)(1)–(d)(3) and (d)(5) of course of the calendar year. determinative methods.
this section establish when (iv) Keep the following records on site (iv) Collect and analyze samples in
nonwastewaters from the production of for the three most recent calendar years accordance with the waste sampling and
dyes/pigments would not be hazardous in which the hazardous waste analysis plan.
(these procedures apply to wastes that determinations are made: (A) The sampling and analysis must
are not disposed in landfill units or (A) The quantity of dyes and/or be unbiased, precise, and representative
treated in combustion units as specified pigment nonwastewaters generated. of the wastes.
in paragraph (a) of this section). If the (B) The relevant process information (B) The analytical measurements must
nonwastewaters are disposed in landfill used. be sufficiently sensitive, accurate and
units or treated in combustion units as (C) The calculations performed to precise to support any claim that the
described in paragraph (a) of this determine annual total mass loadings constituent mass loadings are below the
section, then the nonwastewaters are for each K181 constituent in the paragraph (c) of this section listing
not hazardous. In order to demonstrate nonwastewaters during the year. levels of this section.
that it is meeting the landfill disposal or (3) Determination for generated (v) Record the analytical results.
combustion conditions contained in the quantities greater than 1,000 MT/yr for (vi) Record the waste quantity
K181 listing description, the generator wastes that contain K181 constituents. If represented by the sampling and
must maintain documentation as the total annual quantity of dyes and/or analysis results.
described in paragraph (d)(4) of this pigment nonwastewaters generated is (vii) Calculate constituent-specific
section. greater than 1,000 metric tons, the mass loadings (product of
generator must perform all of the steps concentrations and waste quantity).
(1) Determination based on no K181 described in paragraphs ((d)(3)(i)–
constituents. Generators that have (viii) Keep a running total of the K181
(d)(3)(xi) of this section) in order to constituent mass loadings over the
knowledge (e.g., knowledge of make a determination that its waste is
constituents in wastes based on prior course of the calendar year.
not K181. (ix) Determine whether the mass of
sampling and analysis data and/or (i) Determine which K181 any of the K181 constituents listed in
information about raw materials used, constituents (see paragraph (c) of this paragraph (c) of this section generated
production processes used, and reaction section) are reasonably expected to be between January 1 and December 31 of
and degradation products formed) that present in the wastes based on any year is below the K181 listing
their wastes contain none of the K181 knowledge of the wastes (e.g., based on levels.
constituents (see paragraph (c) of this prior sampling and analysis data and/or (x) Keep the following records on site
section) can use their knowledge to information about raw materials used, for the three most recent calendar years
determine that their waste is not K181. production processes used, and reaction in which the hazardous waste
The generator must document the basis and degradation products formed). determinations are made:
for all such determinations on an annual (ii) If 1,2-phenylenediamine is present (A) The sampling and analysis plan.
basis and keep each annual in the wastes, the generator can use (B) The sampling and analysis results
documentation for three years. either knowledge or sampling and (including QA/QC data)
(2) Determination for generated analysis procedures to determine the (C) The quantity of dyes and/or
quantities of 1,000 MT/yr or less for level of this constituent in the wastes. pigment nonwastewaters generated.
wastes that contain K181 constituents. If For determinations based on use of (D) The calculations performed to
the total annual quantity of dyes and/or knowledge, the generator must comply determine annual mass loadings.
pigment nonwastewaters generated is with the procedures for using (xi) Nonhazardous waste
1,000 metric tons or less, the generator knowledge described in paragraph (d)(2) determinations must be conducted
can use knowledge of the wastes (e.g., of this section and keep the records annually to verify that the wastes
knowledge of constituents in wastes described in paragraph (d)(2)(iv) of this remain nonhazardous.
based on prior analytical data and/or section. For determinations based on (A) The annual testing requirements
information about raw materials used, sampling and analysis, the generator are suspended after three consecutive
production processes used, and reaction must comply with the sampling and successful annual demonstrations that
and degradation products formed) to analysis and recordkeeping the wastes are nonhazardous. The
conclude that annual mass loadings for requirements described below in this generator can then use knowledge of the
the K181 constituents are below the section. wastes to support subsequent annual
paragraph (c) of this section listing (iii) Develop a waste sampling and determinations.
levels of this section. To make this analysis plan (or modify an existing (B) The annual testing requirements
determination, the generator must: plan) to collect and analyze are reinstated if the manufacturing or
waste treatment processes generating combustion units as specified in the Appendix VII to Part 261—Basis for
the wastes are significantly altered, listing description. Listing Hazardous Waste
resulting in an increase of the potential (5) Waste holding and handling.
for the wastes to exceed the listing EPA
During the interim period, from the Hazardous constituents for which
levels. hazardous
point of generation to completion of the listed
waste No.
(C) If the annual testing requirements hazardous waste determination, the
are suspended, the generator must keep generator is responsible for storing the
records of the process knowledge * * * *
wastes appropriately. If the wastes are
information used to support a K181 ........ Aniline, o-anisidine, 4-
determined to be hazardous and the chloroaniline, p-cresidine, 2,4-
nonhazardous determination. If testing generator has not complied with the dimethylaniline, 1,2-
is reinstated, a description of the subtitle C requirements during the phenylenediamine, 1,3-
process change must be retained. interim period, the generator could be phenylenediamine.
(4) Recordkeeping for the landfill subject to an enforcement action for
disposal and combustion exemptions. improper management. * * * *
For the purposes of meeting the landfill
disposal and combustion condition set ■ 6. Appendix VII to part 261 is amended * * * * *
out in the K181 listing description, the by adding the following entry in
Appendix VIII to Part 261—Hazardous
generator must maintain on site for alphanumeric order (by the first column)
Constituents
three years documentation to read as follows.
demonstrating that each shipment of ■ 7. Appendix VIII to part 261 is
waste was received by a landfill unit amended by adding in alphabetical
that is subject to or meets the landfill sequence of common name the following
design standards set out in the listing entries:
description, or was treated in * * * * *
Chemical Hazardous
Common name Chemical abstracts name abstracts waste No.
No.
* * * * * * *
o-Anisidine (2-methoxyaniline) .......................................... Benzenamine, 2-Methoxy- ............................................... 90–04–0 ....................
* * * * * * *
p-Cresidine ........................................................................ 2-Methoxy-5-methylbenzenamine .................................... 120–71–8 ....................
* * * * * * *
2,4-Dimethylaniline (2,4-xylidine) ...................................... Benzenamine, 2,4-dimethyl- ............................................. 95–68–1 ....................
* * * * * * *
1,2-Phenylenediamine ...................................................... 1,2-Benzenediamine ......................................................... 95–54–5 ....................
* * * * * * *
1,3-Phenylenediamine ...................................................... 1,3-Benzenediamine ......................................................... 108–45–2 ....................
* * * . * * * *
PART 268—LAND DISPOSAL this waste, radioactive wastes mixed alternative treatment standards in
RESTRICTIONS with this waste, and soil and debris § 268.45; or
contaminated with radioactive wastes (5) Persons have been granted an
■ 8. The authority citation for part 268 mixed with this waste are prohibited extension to the effective date of a
continues to read as follows: from land disposal. prohibition pursuant to § 268.5, with
Authority: 42 U.S.C. 6905, 6912(a), 6921, (b) The requirements of paragraph (a) respect to these wastes covered by the
and 6924. of this section do not apply if: extension.
(1) The wastes meet the applicable (c) To determine whether a hazardous
Subpart C—Prohibitions on Land treatment standards specified in subpart
Disposal waste identified in this section exceeds
D of this Part; the applicable treatment standards
(2) Persons have been granted an specified in § 268.40, the initial
■ 9. Subpart C is amended by adding
exemption from a prohibition pursuant generator must test a sample of the
§ 268.20 and adding and reserving
to a petition under § 268.6, with respect waste extract or the entire waste,
§§ 268.21 through 268.29 to read as
to those wastes and units covered by the depending on whether the treatment
follows:
petition; standards are expressed as
§ 268.20 Waste specific prohibitions— (3) The wastes meet the applicable concentrations in the waste extract of
Dyes and/or pigments production wastes. treatment standards established the waste, or the generator may use
(a) Effective August 23, 2005, the pursuant to a petition granted under knowledge of the waste. If the waste
waste specified in 40 CFR part 261 as § 268.44; contains regulated constituents in
EPA Hazardous Waste Number K181, (4) Hazardous debris has met the excess of the applicable subpart D
and soil and debris contaminated with treatment standards in § 268.40 or the levels, the waste is prohibited from land
disposal, and all requirements of part entry for F039 to add constituents in § 268.40 Applicability of treatment
268 are applicable, except as otherwise alphabetical sequence, and by adding in standards.
specified. alphanumeric order the new entry for * * * * *
■ 10. In § 268.40, the Table of Treatment K181 to read as follows:
Standards is amended by revising the
TREATMENT STANDARDS FOR HAZARDOUS WASTES

[Note: NA means not applicable]
Regulated hazardous constituent Nonwastewater

Wastewaters Concentration in
Waste Waste description and treatment/reg- Concentration in mg/kg 5 unless
code ulatory subcategory 1 Common name CAS 2 No. mg/L 3, or tech- noted as ‘‘mg/L
nology code 4 TCLP’’, or tech-
nology code
* * * * * * *
F039 ... Leachate (liquids that have per- * * * * *
colated through land disposed o-Anisidine (2-methoxyaniline) .......... 90-04-0 0.010 0.66
wastes) resulting from the disposal * * * * *
of more than one restricted waste p-Cresidine ........................................ 120-71-8 0.010 0.66
classified as hazardous under * * * * *
Subpart D of this part. (Leachate 2,4-Dimethylaniline (2,4-xylidine) ...... 95-68-1 0.010 0.66
resulting from the disposal of one * * * * *
or more of the following EPA Haz- 1,3-Phenylenediamine ...................... 108-45-2 0.010 0.66
ardous Wastes and no other Haz- * * * * *
ardous Waste retains its EPA Haz-
ardous Waste Number(s): F020,
F021, F022, F026, F027, and/or
F028).
* * * * * * *
K181 ... Nonwastewaters from the production Aniline ............................................... 62-53-3 0.81 14
of dyes and/or pigments (including o-Anisidine (2-methoxyaniline) .......... 90-04-0 0.010 0.66
nonwastewaters commingled at 4-Chloroaniline .................................. 106-47-8 0.46 16
the point of generation with p-Cresidine ........................................ 120-71-8 0.010 0.66
nonwastewaters from other proc- 2,4-Dimethylaniline (2,4-xylidine) ...... 95-68-1 0.010 0.66
esses) that, at the point of genera- 1,2-Phenylenediamine ...................... 95-54-5 CMBST; or CHOXD CMBST; or CHOXD
tion, contain mass loadings of any fb (BIODG or fb (BIODG or
of the constituents identified in CARBN); or CARBN); or
paragraph (c) of section 261.32 BIODG fb BIODG fb
that are equal to or greater than CARBN CARBN
the corresponding paragraph (c)
levels, as determined on a cal-
endar year basis.
1,3-Phenylenediamine ...................... 108-45-2 0.010 0.66
* * * * * * *
* * * * * are based on analysis of composite substitution units operating in

samples. accordance with applicable technical
Footnotes to Treatment Standard Table
268.40 4 All treatment standards expressed requirements. A facility may comply
as a Technology Code or combination of with these treatment standards
1 The waste descriptions provided according to provisions in 40 CFR
Technology Codes are explained in
in this table do not replace waste 268.40(d). All concentration standards
detail in 40 CFR 268.42 Table 1–
descriptions in 40 CFR Part 261.
Technology Codes and Descriptions of for nonwastewaters are based on
Descriptions of Treatment/Regulatory
Technology-Based Standards. analysis of grab samples.
Subcategories are provided, as needed,
to distinguish between applicability of 5 Except for Metals (EP or TCLP) * * * * *
different standards. and Cyanides (Total and Amenable) the
nonwastewater treatment standards ■ 11. The Table—Universal Treatment
2 CAS means Chemical Abstract
expressed as a concentration were Standards in § 268.48 is amended by
Services. When the waste code and/or
established, in part, based upon adding in alphabetical sequence the
regulated constituents are described as a
combination of a chemical with its salts incineration in units operated in following entries under the heading
and/or esters, the CAS number is given accordance with the technical organic constituents:
for the parent compound only. requirements of 40 CFR part 264, § 268.48 Universal treatment standards.
3 Concentration standards for Subpart O or 40 CFR part 265, Subpart
wastewaters are expressed in mg/L and O, or based upon combustion in fuel (a) * * *
UNIVERSAL TREATMENT STANDARDS

[Note: NA means not applicable]
Nonwaste-
Wastewater water standard
standard Concentration
Regulated constituent common name CAS 1 number in mg/kg 3 un-
Concentration
in mg/L 2 less noted as
‘‘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
* * * * * * *
* * * * * incineration in units operated in PART 271—REQUIREMENTS FOR

1 CAS means Chemical Abstract accordance with the technical AUTHORIZATION OF STATE
Services. When the waste code and/or requirements of 40 CFR Part 264, HAZARDOUS WASTE PROGRAMS
regulated constituents are described as a Subpart O, or Part 265, Subpart O, or
combination of a chemical with its salts based upon combustion in fuel ■ 12. The authority citation for Part 271
and/or esters, the CAS number is given substitution units operating in continues to read as follows:
for the parent compound only. accordance with applicable technical Authority: 42 U.S.C. 6905, 6912(a), and
2 Concentration standards for requirements. A facility may comply 6926.
wastewaters are expressed in mg/L and with these treatment standards ■ 13. Section 271.1(j) is amended by
are based on analysis of composite according to provisions in 40 CFR adding the following entries to Table 1
samples. 268.40(d). All concentration standards and Table 2 in chronological order by
3 Except for Metals (EP or TCLP) for nonwastewaters are based on date of publication to read as follows.
and Cyanides (Total and Amenable) the analysis of grab samples.
nonwastewater treatment standards § 271.1 Purpose and scope.
* * * * *
expressed as a concentration were * * * * *
established, in part, based upon (j) * * *
TABLE 1.—REGULATIONS IMPLEMENTING THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984
Promulgation date Title of regulation Federal Register reference Effective date
* * * * * * *
Feb. 15, 2005 ......... Listing of Hazards Waste K181 ............ [INSERT FEDERAL REGISTER PAGE Aug. 23, 2005
NUMBERS FOR FINAL RULE].
* * * * * * *
TABLE 2.—SELF-IMPLEMENTING PROVISIONS OF THE SOLID WASTE AMENDMENTS OF 1984

Effective date Self-implementing provision RCRA citation Federal Register reference
* * * * * * *
Aug. 23, 2005 ........ Prohibition on land disposal of K181 3004(g)(4)(C) and 3004(m) .................. Feb. 24, 2005, (INSERT FEDERAL
waste, and prohibition on land dis- REGISTER PAGE NUMBERS).
posal of radioactive waste mixed
with K181 wastes, including soil and
debris.
* * * * * * *
PART 302—DESIGNATION, Authority: 42 U.S.C. 9602, 9603, and 9604; alphanumeric order at the end of the
REPORTABLE QUANTITIES, AND 33 U.S.C. 1321 and 1361. table to read as follows:
NOTIFICATION
■ 15. In § 302.4, Table 302.4 is amended § 302.4 Designation of hazardous
■ 14. The authority citation for Part 302 by adding the following new entry in substances.
continues to read as follows: * * * * *
TABLE 302.4.—LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE QUANTITIES

[Note: All comments/notes are located at the end of this table]
RCRA Final RQ
Statutory
Hazardous substance CASRN waste pounds
code ‡ number (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 iden-
tified in paragraph (c) of section 261.32 that are equal to or greater than the cor-
responding paragraph (c) levels, as determined on a calendar year basis.
‡ 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. 05–3454 Filed 2–23–05; 8:45 am]
BILLING CODE 6560–50–P

Rule: Air Quality Implementation Plans Approval and Promulgation Various States: Nonwastewaters From Productions of Dyes, Pigments, and Food, Drug, and Cosmetic Colorants Mass Loadings-Based Listing

Hochgeladen von

Dokumentinformationen

Originaltitel

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

Rule: Air Quality Implementation Plans Approval and Promulgation Various States: Nonwastewaters From Productions of Dyes, Pigments, and Food, Drug, and Cosmetic Colorants Mass Loadings-Based Listing

Hochgeladen von

Copyright:

Verfügbare Formate

Thursday,

February 24, 2005

ACRONYMS USED IN THE RULE

BDAT ................. Best Demonstrated Available Technology.

ACRONYMS USED IN THE RULE—Continued

EPA ................... Environmental Protection Agency.

1. Introduction C. Regulatory Flexibility Act concern, may be indirectly impacted.

1 Memorandum from Lyn D. Luben to the RCRA

Docket, July 21, 2004.

Aniline .............................................................................................................. 62–53–3 0.81 14

Industry and EPA Hazard

TREATMENT STANDARDS FOR HAZARDOUS WASTES

Regulated hazardous constituent Nonwastewater

* * * * * are based on analysis of composite substitution units operating in

UNIVERSAL TREATMENT STANDARDS

* * * * * incineration in units operated in PART 271—REQUIREMENTS FOR

TABLE 2.—SELF-IMPLEMENTING PROVISIONS OF THE SOLID WASTE AMENDMENTS OF 1984

TABLE 302.4.—LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE QUANTITIES

Das könnte Ihnen auch gefallen