10060 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

ENVIRONMENTAL PROTECTION

AGENCY

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

302

[SWH–FRL–6940–6]

RIN 2050–AE32

Hazardous Waste Management

System; Identification and Listing of

Hazardous Waste; Paint Production

Wastes; Land Disposal Restrictions for

Newly Identified Wastes; CERCLA

Hazardous Substance Designation and

Reportable Quantities; Designation of

n-Butyl Alcohol, Ethyl Benzene, Methyl

Isobutyl Ketone, Styrene, and Xylenes

as Appendix VIII Constituents;

Addition of Acrylamide and Styrene to

the Treatment Standards of F039; and

Designation of Styrene as an

Underlying Hazardous Constituent

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: The EPA proposes to amend

the regulations for hazardous waste

management under the Resource

Conservation and Recovery Act (RCRA)

by listing as hazardous certain waste

solids and liquids generated from the

production of paint. EPA is proposing a

concentration-based listing approach for

each of these wastes. Under this

approach, the identified paint

production wastes are hazardous if they

contain any of the constituents of

concern at concentrations that meet or

exceed regulatory levels. Generators

must determine whether their wastes

are listed hazardous wastes. If their

wastes are below regulatory levels for all

constituents of concern, then their

wastes are nonhazardous. We are also

proposing a contingent management

option for waste liquids. These wastes

would not be subject to the listing if

they are stored or treated exclusively in

tanks or containers prior to discharge to

a publicly owned treatment works or

discharged under a Clean Water Act

national pollutant discharge elimination

system permit. This proposal would

also add the toxic constituents n-butyl

alcohol, ethyl benzene, methyl isobutyl

ketone, styrene, and xylenes found in

these identified wastes to the list of

constituents that serves as the basis for

classifying wastes as hazardous, and to

establish treatment standards for the

wastes. Due to the uncertainties in our

assessment of the management of paint

manufacturing waste liquids in surface

impoundments, we are also considering

an alternative proposal not to list paint

manufacturing waste liquids.

If these paint production wastes are

listed as hazardous waste, then they will

be subject to stringent management and

treatment standards under Subtitle C of

RCRA. Additionally, this action

proposes to designate these wastes as

hazardous substances subject to the

Comprehensive Environmental

Response, Compensation, and Liability

Act (CERCLA) and to adjust the one

pound statutory reportable quantities

(RQs) for these substances. Other

actions proposed in this notice would

add acrylamide and styrene to the

treatment standards applicable to

multisource leachate and designate

styrene as an underlying hazardous

constituent. As a result, a single waste

code would continue to be applicable to

multisource landfill leachates and

residues of characteristic wastes would

require treatment when styrene is

present above the proposed land

disposal standards.

DATES: EPA will accept public

comments on this proposed rule until

April 16, 2001. Comments postmarked

after this date will be marked ‘‘late’’ and

may not be considered. Any person may

request a public hearing on this

proposal by filing a request with Mr.

David Bussard, whose address appears

below, by February 27, 2001.

ADDRESSES: If you would like to file a

request for a public hearing on this

proposal, please submit your request to

Mr. David Bussard at: Office of Solid

Waste, Hazardous Waste Identification

Division (5304W), U.S. Environmental

Protection Agency, 1200 Pennsylvania

Avenue, NW., Washington, DC 20460,

(703) 308–8880.

If you wish to comment on this

proposed rule, you must send an

original and two copies of the comments

referencing docket number F–2001–

PMLP–FFFFF to: RCRA Docket

Information Center, Office of Solid

Waste (5305G), U.S. Environmental

Protection Agency Headquarters (EPA,

HQ), 1200 Pennsylvania Avenue, NW.,

Washington, DC 20460. Hand deliveries

of comments should be made to the

RCRA Information Center (RIC) located

at Crystal Gateway, First Floor, 1235

Jefferson Davis Highway, Arlington, VA.

You also may submit comments

electronically by sending electronic

mail through the Internet to:

rcradocket@epa.gov. See the beginning

of the Supplementary Information

section for information on how to

submit your comments as well as view

public comments and supporting

materials.

Please do not submit any confidential

business information (CBI)

electronically. You must submit an

original and two copies of CBI under

separate cover to: RCRA CBI Document

Control Officer, Office of Solid Waste

(5305W), U.S. EPA, 1200 Pennsylvania

Avenue, NW., Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: For

general information, contact the RCRA

Hotline at (800) 424–9346 or TDD (800)

553–7672 (hearing impaired). In the

Washington, DC, metropolitan area, call

(703) 412–9810 or TDD (703) 412–3323.

For information on specific aspects of

the rule, contact Ms. Patricia Cohn or

Mr. David Carver of the Office of Solid

Waste (5304W), U.S. Environmental

Protection Agency, 1200 Pennsylvania

Avenue, NW., Washington, DC 20460,

(E-mail addresses and telephone

numbers: cohn.patricia@epa.gov (703–

308–8675); carver.david@epa.gov (703–

308–8603)). For technical information

on the CERCLA aspects of this rule,

contact Ms. Lynn Beasley, Office of

Emergency and Remedial Response,

Analytical Operations and Data Quality

Center (5204G), U.S. Environmental

Protection Agency, 1200 Pennsylvania

Avenue, NW., Washington, DC 20460,

[E-mail address and telephone number:

beasley.lynn@epa.gov (703–603–9086)].

SUPPLEMENTARY INFORMATION:

How Do I Submit Comments to This

Proposed Rule?

We are asking prospective

commenters to voluntarily submit one

additional copy of their comments on

labeled personal computer diskettes in

ASCII (text) format or a word processing

format that can be converted to ASCII

(text). Specify on the disk label the word

processing software and version/edition

as well as the commenter’s name. This

will allow us to convert the comments

into one of the word processing formats

used by the Agency. Please use mailing

envelopes designed to physically

protect the submitted diskettes. We

emphasize that submission of comments

on diskettes is not mandatory, nor will

it result in any advantage or

disadvantage to any commenter.

If you submit comments

electronically, identify comments in

electronic format with the docket

number F–2001–PMLP–FFFFF. You

must submit all electronic comments as

an ASCII (text) file, avoiding the use of

special characters and any form of

encryption.

How Can I View Supporting Documents

for This Proposed Rule?

You may view either the paper or

electronic form of public comments and

supporting materials accompanying

today’s proposal. You may access the

paper copies of these supporting

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10061

documents in the RIC (See ADDRESSES

section for address). The RIC is open

from 9 am to 4 pm, Monday through

Friday, excluding Federal holidays. To

review docket materials, we recommend

that you make an appointment by

calling (703) 603–9230. You may copy

a maximum of 100 pages from any

regulatory docket at no charge.

Additional copies cost $0.15/page.

You may also view these documents

electronically on the Internet: http://

www.epa.gov/epaoswer/hazwaste/id/

paint.

We will keep the official record for

this action in paper form. Accordingly,

we will transfer all comments received

electronically into paper form and place

them in the official record, which will

also include all comments submitted

directly in writing. The official record is

the paper record maintained at the

address under ADDRESSES at the

beginning of this document.

EPA responses to comments, whether

the comments are written or electronic,

will be in a notice in the Federal

Register or in a response to comments

document placed in the official record

for this rulemaking. We may, however,

seek clarification of electronic

comments that become garbled in

transmission or during conversion to

paper form, as discussed above.

Customer Service

How Can I Influence EPA’s Thinking on

this Proposed Rule?

In developing this proposal, we tried

to address the concerns of all our

stakeholders. Your comments will help

us improve this rule. We invite you to

provide views on options we propose,

new data, information on how this rule

may affect you, or other relevant

information. We welcome your views on

all aspects of this proposed rule, but we

particularly request comments on the

items identified at the end of each

section. Your comments will be most

effective if you follow the suggestions

below:

• Include your name, the date, and

the docket number with your comments.

Remember that your comments must be

submitted by the deadline specified in

this notice.

• Reference your comments to

specific sections of the proposal by

using section titles, page numbers of the

preamble, or the regulatory citations.

• Clearly label any confidential

business information (CBI) submitted as

part of your comments.

• Explain your views as clearly as

possible and provide a summary of the

reasoning you used to arrive at your

conclusions as well as examples to

illustrate your views where possible.

• Tell us which parts of this proposal

you support, as well as those with

which you disagree.

• Offer specific alternatives.

• Provide solid technical data to

support your views. For example, if you

estimate potential costs, explain how

you arrived at your estimate.

Contents of This Proposed Rule

I. Overview

A. Who Potentially Will Be Affected by

This Proposed Rule?

B. What Impact May This Proposed Rule

Have?

C. Why Does This Proposed Rule Read

Differently from Other Listing Rules?

D. What Are The Statutory Authorities for

This Proposed Rule?

II. Background

A. How Does EPA Define a Hazardous

Waste?

B. How Does EPA Regulate RCRA

Hazardous Wastes?

C. How Does EPA Regulate Solid Wastes

That Are Not RCRA Hazardous Wastes?

D. Overview of The Hazardous Waste

Listing Determination Process for Paint

Production Wastes

1. Suspension of Previous Listings

2. Consent Decree Schedule for This

Proposal

E. Existing Regulations That Apply to This

Industry

F. What Industries and Wastes Are Covered

in This Proposed Rule?

1. Scope of Consent Decree

2. Scope of Listing: Off-Specification

Products

3. Recycling Issues

G. Description of The Paint and Coatings

Industry

H. What Information Did EPA Collect and

Use?

1. Site Visits

2. DataBase of Paint Manufacturing

Information from Published Sources

3. The RCRA Section 3007 Survey

a. Overview

b. Structuring The Survey to Capture All

The Wastes of Concern

c. Identifying The Universe of Paint

Manufacturing Facilities

d. Constructing a Stratified Random

Sample

e. Conducting The Survey and Analyzing

The Results

f. Meeting Our Objectives for The Survey

III. Approach Used in This Proposed Listing

A. Summary of Today’s Action

B. What Is a Concentration-Based Listing?

C. Why Is a Concentration-Based Approach

Being Used for This Listing?

D. How Did The Agency Use The Survey

Results for This Proposed Listing

Determination?

1. General Assessment of The Paint

Industry’s Waste Generation and

Management Practices

2. Management Scenarios Currently Used

at Paint Facilities and Our Selection of

Waste Management Scenarios for Risk

Assessment Modeling

a. Plausible Waste Management Selection

Criteria and Modeling Considerations

b. Selection of Waste Management

Scenarios for Risk Assessment Modeling

of Nonhazardous Paint Manufacturing

Waste Solids

c. Selection of Waste Management

Scenarios for Risk Assessment Modeling

of Nonhazardous Paint Manufacturing

Waste Liquids

d. Survey Data as Input to Modeling

Parameters

E. What Risk Assessment Approach Did

EPA Use to Determine Allowable

Constituent Waste Concentrations?

1. Which Factors Did EPA Incorporate Into

Its Quantitative Risk Assessment?

2. How Did EPA Use Damage Case

Information?

3. Overview of The Risk Assessment

4. How EPA Chose Potential Constituents

of Concern

a. Phase 1: How Did EPA Develop a

Preliminary List of Constituents?

b. Phase 2: How Did EPA Select Potential

Constituents of Concern for The Risk

Assessment?

c. Phase 3: How Did EPA Choose

Additional Constituents for The Risk

Assessment?

5. What Was EPA’s Approach to

Conducting Human Health Risk

Assessment?

a. What Waste Management Scenarios

Were Evaluated?

b. What Exposure Scenarios Did EPA

Evaluate?

c. How Did EPA Quantify Each Receptor’s

Exposure to Contaminants?

d. How Did EPA Predict The Release and

Transport of Constituents From a Waste

Management Unit to Receptor Locations?

e. What Is The Human Health Toxicity of

COC’s Identified by EPA?

f. What Are The Results From The Risk

Assessment?

g. What Is The Uncertainty in Human

Health Risk Results?

6. What Was EPA’s Approach to

Conducting The Ecological Risk

Assessment?

a. How Were Ecological Exposures

Estimated?

b. What Ecological Receptors Did The EPA

Evaluate?

c. How Did EPA Consider The Toxicity of

Constituents in The Ecological Risk

Assessment?

7. Did EPA Conduct a Peer Review of The

Risk Assessment?

IV. Proposed Listing Determinations and

Regulations

A. What Are The Proposed Regulations for

Paint Production Wastes?

B. Why Are We Proposing to Use The Level

of Constituents in The Waste Solids as

Total Waste Concentrations Rather Than

Leachate Concentrations?

C. Why Are We Proposing to Exclude

Waste Liquids Managed in Tanks?

1. On-Site Storage and Treatment Tanks

2. Management of Liquid Paint

Manufacturing Wastes in Off-Site

Treatment Tanks

D. Why Are We Proposing a Contingent

Management Listing for Liquid Paint

Manufacturing Wastes, and What Other

Options Are We Considering?

10062 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

E. Potential for Formation of Non-Aqueous

Phase Liquids in Paint Manufacturing

Wastes

F. Scope of The Listings and The Effect on

Treatment Residuals

G. Relationships of The Proposed Listings

to The TC

H. What Is The Status of Landfill Leachate

from Previously Disposed Wastes?

V. Proposed Generator Requirements for

Implementation of Concentration-Based

Listings

A. Would I Have to Determine Whether or

Not My Wastes Are Hazardous?

B. How Would I Manage My Wastes During

The Period Between The Effective Date

of The Final Rule and Initial Hazardous

Waste Determination for My Wastes?

C. What Procedures Would I Follow to

Determine If My Wastes Are

Nonhazardous?

1. Testing Wastes

2. Using Knowledge of The Wastes

D. How Would The Proposed Contingent

Management Listing for Liquid Wastes

Be Implemented?

E. What Records Would I Need to Keep Onsite to Support a Nonhazardous

Determination for My Wastes?

F. What Would Happen if I Do Not Meet

The Recordkeeping Requirements for

The Wastes That I Have Determined Are

Nonhazardous?

G. Could I Treat My Wastes to Below

Listing Concentrations and Then

Determine That My Wastes Are

Nonhazardous?

1. Paint Manufacturing Waste Solids

2. Paint Manufacturing Waste Liquids

VI. Proposed Treatment Standards Under

RCRA’s Land Disposal Restrictions

(LDRs)

A. What are EPA’s LDRs?

B. How Does EPA Develop LDR Treatment

Standards?

C. What Treatment Standards Are

Proposed?

D. Other LDR-Related Provisions

1. F039 Multisource Leachate and

Universal Treatment Standards

E. Is There Treatment and Management

Capacity Available for These Proposed

Newly Identified Wastes?

1. What Is a Capacity Determination?

2. What Are The Capacity Analysis

Results?

3. What Is The Available Treatment

Capacity for Other Wastes Subject to

Revised UTS and F039 Standards?

VII. State Authority and Compliance

A. How Are States Authorized Under

RCRA?

B. How Would This Rule Affect State

Authorization?

C. Who Would Need to Notify EPA That

They Have a Hazardous Waste?

D. What Would Generators and

Transporters Have to Do?

E. Which Facilities Would Be Subject to

Permitting?

1. Facilities Newly Subject to RCRA Permit

Requirements

2. Existing Interim Status Facilities

3. Permitted Facilities

4. Units

5. Closure

VIII. CERCLA Designation and Reportable

Quantities

A. What Is The Relationship Between

RCRA and CERCLA?

B. How Does EPA Determine Reportable

Quantities?

C. Is EPA Proposing to Adjust The

Statutory One Pound RQ for These

Wastes?

D. How Would a Concentration-Based

Hazardous Waste Listing Approach

Relate to My Reporting Obligations

Under CERCLA? When Would I Need to

Report a Release of These Wastes Under

CERCLA?

E. How Would I Report a Release?

F. What Is The Statutory Authority for This

Program?

G. How Can I Influence EPA’s Thinking on

Regulating K179 and K180 Under

CERCLA?

IX. Analytical and Regulatory Requirements

A. Is This a Significant Regulatory Action

Under Executive Order 12866?

B. What Consideration Was Given to Small

Entities Under The Regulatory Flexibility

Act (RFA), as Amended by The Small

Business Regulatory Enforcement

Fairness Act of 1996 (SBREFA), 5 U.S.C.

601 et.seq?

C. What Consideration Was Given to

Children’s Health Under Executive Order

13045?

D. What Consideration Was Given to

Environmental Justice Under Executive

Order 12898?

E. What Consideration Was Given to

Unfunded Mandates?

F. What Consideration Was Given to

Federalism Under Executive Order

13132?

G. What Consideration Was Given to Tribal

Governments Under Executive Order

13175: Consultation and Coordination

With Indian Tribal Governments?

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

3501–3520

A. How is The Paperwork Reduction Act

Considered in Today’s Proposed Rule?

XI. National Technology Transfer and

Advancement Act of 1995 (Pub L. 104–

113*12(d) (15 U.S.C. 272 Note))

A. Was The National Technology Transfer

and Advancement Act Considered?

I. Overview

A. Who Potentially Will be Affected by

This Proposed Rule?

If finalized, this regulation could

potentially affect those who generate

and manage certain paint production

wastes. Landfill owners/operators may

also be impacted. A common disposal

practice for much of the paint

production wastes of concern has been

in solid waste landfills. This proposed

listing may result in leachate from some

of these landfills becoming hazardous

under the derived-from rule (described

further in Section V.H). However,

impacts to these facilities are projected

to be negligible under our proposed

approach of a Clean Water Act

temporary deferral. This action may also

affect entities that need to respond to

releases of these wastes as CERCLA

hazardous substances. These potentially

affected entities are described in the

Economics Background Document

placed in the docket in support of

today’s proposed rule. A summary is

provided in the table below.

SUMMARY OF FACILITIES POTENTIALLY AFFECTED BY EPA’S 2000 PAINT PRODUCTION WASTE LISTING PROPOSAL

Item SIC code NAICS code Industry sector name

Estimated

number of

U.S. relevant facilities

1 ............... 2851 325510 Paint and Coating Manufacturing ...................................................................................... 972

2 ............... 4953 562212 Solid Waste Landfill ........................................................................................................... 35–48

This list of potentially affected

entities may not be exhaustive. Our aim

is to provide a guide for readers

regarding entities likely to be regulated

by this action. This action, however,

may affect other entities not listed in the

table. To determine whether your

facility is regulated by this action, you

should examine 40 CFR parts 260 and

261 carefully along with the proposed

rules amending RCRA that are found at

the end of this Federal Register notice.

If you have questions regarding the

applicability of this action to a

particular entity, consult the person

listed in the preceding section entitled

FOR FURTHER INFORMATION CONTACT.

B. What Impact May This Proposed Rule

Have?

If you are a paint manufacturer and

you generate wastes described in this

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10063

proposed rule, then you would need to

determine if your wastes meet these

newly listed hazardous waste codes, if

finalized. Your waste would become a

listed hazardous waste if it contains any

of the constituents of concern at a

concentration equal to or greater than

the hazardous concentration identified

for that constituent (see Tables IV–1 and

IV–2). If you determine that your wastes

are hazardous under this listing, then

the wastes must be stored, treated and

disposed in a manner consistent with

the RCRA Subtitle C hazardous waste

regulations at 40 CFR parts 260–272. If

your annual generation of these paint

production wastes exceeds 40 metric

tons of waste solids and/or 100 metric

tons of waste liquids, you must also

perform certain routine testing of the

affected wastes and keep certain records

of these wastes (as described in Section

V.E) on-site.

We are proposing that generators must

meet the necessary conditions to

determine whether or not a waste is

hazardous based on the steps described

in Section V.C, of today’s proposed rule.

If you determine that your wastes are

hazardous under this listing, then you

are also subject to all applicable

requirements for hazardous waste

generators in 40 part CFR 262. If you

were not previously a hazardous waste

generator, and you determine you

generate this newly-listed hazardous

waste; then you must notify the EPA,

according to section 3010 of RCRA, that

you generate hazardous waste.

Following an initial determination

whether your wastes are hazardous or

nonhazardous under this listing, you

would have a continuing obligation to

make such a determination at least on

an annual basis.

C. Why Does This Proposed Rule Read

Differently From Other Listing Rules?

Today’s proposed hazardous waste

listing determination (or ‘‘listing

determination’’) preamble and

regulations are written in ‘‘readable

regulations’’ format. The authors tried to

use active rather than passive voice,

plain language, a question-and-answer

format, the pronouns ‘‘we’’ for EPA and

‘‘you’’ for the owner/generator, as well

as other techniques, including an

acronym list (see below), to make the

information in today’s proposed rule

easier to read and understand. This new

format is part of our efforts towards

regulatory reinvention. We believe that

this new format will help readers

understand the regulations and foster

better relationships between EPA and

the regulated community.

ACRONYMS

Acronym Definition

μm ..................... Micrometer

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

BFI .................... Browning-Ferris Industries (now Allied Waste Industries Inc.)

BHP .................. Biodegradation, hydrolysis and photolysis

BIF .................... Boiler and Industrial Furnace

BRS .................. Biennial Reporting System

CAA .................. Clean Air Act

CalEPA ............. California Environmental Protection Agency

CARBN ............. Carbon Absorption

CAS .................. Chemical Abstract Services

CBI .................... Confidential Business Information

CERCLA ........... Comprehensive Environmental Response Compensation and Liability Act

CERCLIS .......... Comprehensive Environmental Response Compensation and Liability Information System

CESQG ............. Conditionally Exempt Small Quantity Generator

CFR .................. Code of Federal Regulations

CHOXD ............. Chemical or Electrolytic Oxidation

CMBST ............. Combustion

COC .................. Constituents of Concern

CSCL ................ Chemical Stressor Concentration Limit

CSF .................. Cancer Slope Factor

CWA ................. Clean Water Act

CWT ................. Centralized Wastewater Treatment Facility (May also be referred to as a wastewater treatment facility, or WWTF)

EDF .................. Environmental Defense Fund

EO .................... Executive Order

EP ..................... Extraction Procedure

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

EPACMTP ........ EPA’s Composite Model for Leachate Migration with Transformation Products

EPCRA ............. Emergency Planning and Community Right-To-Know Act

FR ..................... Federal Register

GDP .................. Gross Domestic Product

GNP .................. Gross National Product

HAP .................. Hazardous Air Pollutant

HEAST .............. Health Effects Assessment Summary Table

HQ .................... Hazard Quotient

HSWA ............... Hazardous and Solid Waste Amendments

HWIR ................ Hazardous Waste Identification Rule

ICR ................... Information Collection Request

INC ................... Incineration

IRIS ................... Integrated Risk Information System

ISCST3 ............. Industrial Source Complex-Short Term

LDR .................. Land Disposal Restriction

MACT ............... Maximum Achievable Control Technology

mg/kg ................ Milligram per kilogram

mg/L .................. Milligram per liter

MLF .................. Municipal Landfill

MINTEQ ............ MINTEQ (model for geochemical equilibria in ground water)

10064 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

ACRONYMS—Continued

Acronym Definition

MINTEQA2 ....... MINTEQA2 (model for geochemical equilibria in ground water) Geochemical speciation model; originally a combination of

Mineral Equilibrium Model (MINEQL) and the thermodynamic database WATEQ3

MSDS ............... Material Safety Data Sheet

MSW ................. Municipal Solid Waste

MT .................... Metric Ton

NAICS ............... North American Industrial Classification System

NAPL ................ Non-Aqueous Phase Liquid

NCV .................. National Capacity Variance

NESHAP ........... National Emission Standards for Hazardous Air Pollutants

NPCA ................ National Paint and Coatings Association

NPDES ............. National Pollutant Discharge Elimination System

NPL ................... National Priority List

NRC .................. National Response Center

NTTAA .............. National Technology Transfer and Advancement Act

OEM ................. Original Equipment Manufacturing

OMB ................. Office of Management and Budget

OSW ................. Office of Solid Waste

OSWER ............ Office of Solid Waste and Emergency Response

OSWRO ............ Off-Site Waste and Recovery Operations

PBT ................... Persistent, Bioaccumulative and Toxic

POTW ............... Publicly Owned Treatment Works

ppm ................... Parts Per Million

PRA .................. Paperwork Reduction Act

QA .................... Quality Assurance

QC .................... Quality Control

RCRA ............... Resource Conservation and Recovery Act

RFA .................. Regulatory Flexibility Act

RfC ................... Reference Concentration

RfD ................... Reference Dose

RFSA ................ Regulatory Flexibility Screening Analysis

RIC ................... RCRA Information Center

RODS ............... Record of Decision System

RQ .................... Reportable Quantity

RTK .................. Right-To-Know

SBA .................. Small Business Administration

SBREFA ........... Small Business Regulatory Enforcement Fairness Act

SIC .................... Standard Industry Code

SOP .................. Standard Operating Procedure

SPIS ................. Superfund Public Information System

SW–846 ............ Test Methods for Evaluating Solid Wastes

TC ..................... Toxicity Characteristic

TCLP ................ Toxicity Characteristic Leaching Procedure

TOC .................. Total Organic Carbon

TRI .................... Toxic Release Inventory

TSDF ................ Treatment, Storage and Disposal facility

TSDR ................ Toxic Substances and Disease Registry

TSS ................... Total Suspended Solids

UMRA ............... Unfunded Mandates Reform Act

USC .................. United States Code

USLE ................ Universal Soil Loss Equation

UTS .................. Universal Treatment Standard

VOC .................. Volatile Organic Compound

WETOX ............ Wet Air Oxidation

WMU ................. Waste Management Unit

WMX ................. WMX Technologies, Inc.

D. What Are The Statutory Authorities

for This Proposed Rule?

These regulations are being proposed

under the authority of sections 2002(a),

3001(b), 3001(e)(2), 3004(d)–(m), and

3007(a) of the Solid Waste Disposal Act,

42 U.S.C. 6912(a), 6921(b) and (e)(2),

6924(d)–(m), and 6927(a), as amended,

most importantly by the Hazardous and

Solid Waste Amendments of 1984

(HSWA). These statutes commonly are

referred to as the Resource Conservation

and Recovery Act (RCRA), and are

codified at Volume 42 of the United

States Code (U.S.C.), sections 6901 to

6992(k) (42 U.S.C. 6901–6992(k)).

Section 102(a) of the Comprehensive

Environmental Response,

Compensation, and Liability Act of 1980

(CERCLA), 42 U.S.C. 9602(a) is the

authority under which EPA is proposing

amendments to 40 CFR part 302.

II. Background

A. How Does EPA Define a Hazardous

Waste?

EPA’s regulations establish two ways

of identifying solid wastes as hazardous

under RCRA. A waste may be

considered hazardous if it exhibits

certain hazardous properties

(‘‘characteristics’’) or if it is included on

a specific list of wastes EPA has

determined are hazardous (‘‘listing’’ a

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10065

waste as hazardous) because it was

found to pose substantial present or

potential hazards to human health or

the environment. EPA’s regulations in

the Code of Federal Regulations (40

CFR) define four hazardous waste

characteristic properties: Ignitability,

corrosivity, reactivity, or toxicity (See

40 CFR 261.21–261.24). As a generator,

you must determine whether or not a

waste exhibits any of these

characteristics by testing the waste, or

by using your knowledge of the process

that produced the waste (see

§ 262.11(c)). While you are not required

to sample your waste, you will be

subject to enforcement actions if you are

found to be improperly managing

materials that are characteristic

hazardous waste.

EPA may also conduct a more specific

assessment of a waste or category of

wastes and ‘‘list’’ them if they meet

criteria set out in 40 CFR 261.11. As

described in § 261.11, we may list a

waste as hazardous if it:

—Exhibits any of the characteristics

noted above, i.e., ignitability,

corrosivity, reactivity, or toxicity

(261.11(a)(1));

—Is ‘‘acutely’’ hazardous, i.e., if they are

fatal to humans or in animal studies

at low doses, or otherwise capable of

causing or significantly contributing

to an increase in serious illness

(261.11(a)(2)); or

—Is capable of posing a substantial

present or potential hazard to human

health or the environment when

improperly managed (261.11(a)(3)).

Under the third criterion, at 40 CFR

261.11(a)(3), we may decide to list a

waste as hazardous if it contains

hazardous constituents identified in 40

CFR part 261, appendix VIII, and if,

after considering the factors noted in

this section of the regulations, we

‘‘conclude that the waste is capable of

posing a substantial present or potential

hazard to human health or the

environment when improperly treated,

stored, transported, or disposed of, or

otherwise managed.’’ We place a

chemical on the list of hazardous

constituents on Appendix VIII only if

scientific studies have shown a

chemical has toxic effects on humans or

other life forms. When listing a waste,

we also add the hazardous constituents

that serve as the basis for listing to 40

CFR part 261, appendix VII.

The regulations at 40 CFR 261.31

through 261.33 contain the various

hazardous wastes the Agency has listed

to date. Section 261.31 lists wastes

generated from non-specific sources,

known as ‘‘F-wastes,’’ and contains

wastes that are usually generated by

various industries or types of facilities,

such as ‘‘wastewater treatment sludges

from electroplating operations’’ (see

code F006). Section 261.32 lists

hazardous wastes generated from

specific industry sources, known as ‘‘Kwastes,’’ such as ‘‘Spent potliners from

primary aluminum production’’ (see

code K088). Section 261.33 contains

lists of commercial chemical products

and other materials, known as ‘‘Pwastes’’ or ‘‘U-wastes,’’ that become

hazardous wastes when they are

discarded or intended to be discarded.

Today’s proposed regulations would

list certain paint production wastes as

K-waste codes under § 261.32. We are

also proposing to add constituents that

serve as the basis for the proposed

listings to Appendix VII as well as to

add certain constituents to the list of

Hazardous Constituents in Appendix

VIII that are not already included.

‘‘Derived-from’’ and ‘‘Mixture’’ Rules

Residuals from the treatment, storage,

or disposal of most listed hazardous

wastes are also classified as hazardous

wastes based on the ‘‘derived-from’’ rule

(40 CFR 261.3(c)(2)(i)). For example, ash

or other residuals generated from the

treatment of a listed waste generally

carries the original hazardous waste

code and is subject to the hazardous

waste regulations. Also, the ‘‘mixture’’

rule (40 CFR 261.3(a)(2)(iii) and (iv))

provides that, with certain limited

exceptions, any mixture of a listed

hazardous waste and a solid waste is

itself a RCRA hazardous waste.

Some materials that would otherwise

be classified as hazardous wastes under

the rules described above are excluded

from jurisdiction under RCRA if they

are recycled in certain ways. The

current definition of solid waste at 40

CFR 261.2 excludes from the definition

of solid waste secondary materials that

are used directly (i.e., without

reclamation) as ingredients in

manufacturing processes to make new

products, used directly as effective

substitutes for commercial products, or

returned directly to the original process

from which they are generated as a

substitute for raw material feedstock.

(See 40 CFR 261.2(e).) As discussed in

the January 4, 1985, rulemaking that

promulgated this regulatory framework,

these are activities which, as a general

matter, resemble ongoing manufacturing

operations more than conventional

waste management and so are more

appropriately classified as not involving

solid wastes. (See 50 FR 637–640).

B. How Does EPA Regulate RCRA

Hazardous Wastes?

If a waste exhibits a hazardous

characteristic or is listed as a hazardous

waste then it is subject to federal

requirements under RCRA. These

regulations affect persons who generate,

transport, treat, store or dispose of such

waste. Facilities that must meet

hazardous waste management

requirements, including the need to

obtain permits to operate, commonly are

referred to as ‘‘Subtitle C’’ facilities.

Subtitle C is Congress’ original statutory

designation for that part of RCRA that

directs EPA to issue regulations for

hazardous wastes as may be necessary

to protect human health or the

environment. EPA standards and

procedural regulations implementing

Subtitle C are found generally at 40 CFR

parts 260 through 272.

All RCRA hazardous wastes are also

hazardous substances under the

Comprehensive Environmental

Response, Compensation, and Liability

Act (CERCLA), as defined in section

101(14)(C) of the CERCLA statute. This

applies to wastes listed in §§ 261.31

through 261.33, as well as any wastes

that exhibit a RCRA characteristic. Table

302.4 at 40 CFR 302.4 lists CERCLA

hazardous substances along with their

reportable quantities (RQs). Anyone

spilling or releasing a substance at or

above the RQ must report the release to

the National Response Center, as

required in CERCLA Section 103. In

addition, Section 304 of the Emergency

Planning and Community Right-toKnow Act (EPCRA) requires facilities to

report the release of a CERCLA

hazardous substance at or above its RQ

to State and local authorities. Today’s

rule proposes to establish RQs for the

newly listed wastes.

C. How Does EPA Regulate Solid Wastes

That Are Not RCRA Hazardous Wastes?

If your waste is a solid waste but is

not, or is determined not to be a listed

and/or characteristic hazardous waste,

then you may dispose these solid wastes

at Subtitle D facilities. These facilities

are approved by state and local

governments and generally impose less

stringent requirements on management

of wastes. Subtitle D is the statutory

designation for that part of RCRA that

deals with disposal of solid waste. EPA

regulations affecting Subtitle D facilities

are found at 40 CFR parts 240 thru 247,

and 255 thru 258. Regulations for

Subtitle D landfills that accept

municipal waste (‘‘municipal solid

waste landfills’’) are in 40 CFR part 258.

10066 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

1These regulations would apply to coatings

manufacturing facilities that are a major source and

use, produce, or make a HAP. A major source of a

HAP is located within a contiguous area and under

common control and has the potential to emit

greater than 9.1 Mg/yr (25 tons/yr) of any

combination of HAP or 10 tons/yr of a single HAP.

D. Overview of the Hazardous Waste

Listing Determination Process for Paint

Production Wastes

1. Suspension of Previous Listings

Under the Resource Conservation and

Recovery Act (RCRA) of 1976, Congress

directed EPA to establish a framework

for RCRA’s Subtitle C hazardous waste

program. Congress also required EPA to

propose and write timely rules

identifying wastes as hazardous under

Subtitle C. EPA responded by proposing

Subtitle C regulations on December 12,

1978 (43 FR 58957) which established a

framework for the Subtitle C program.

At the same time, EPA also proposed to

list wastes—including four paint

production waste streams from specific

(paint production) sources and two

paint production waste streams from

non-specific (paint application)

sources—as hazardous. On July 16,

1980, EPA promulgated an interim final

rule (45 FR 47832) that designated four

paint production waste streams from

specific sources as hazardous waste

under 40 CFR 261.32:

• Solvent cleaning wastes from

equipment and tank cleaning operations

(K078),

• Water/caustic cleaning wastes from

equipment and tank cleaning operations

(K079),

• Wastewater treatment sludge

(K081), and

• Emission control dust or sludge

(K082).

Commenters to this rule argued that

these listings were overly broad. EPA

consequently re-examined the data and

initial analysis on these paint

production waste streams and

determined that further study of these

wastes was necessary before a final

listing could be promulgated. On

January 16, 1981, this interim final

rule—identifying and listing these paint

production waste streams as

hazardous—was temporarily suspended

(48 FR 4614).

2. Consent Decree Schedule for This

Proposal

The 1984 Hazardous and Solid Waste

Amendments (HSWA) to RCRA require

EPA to make listing determinations for

paint production wastes (see RCRA

section 3001(e)(2)). In 1989, the

Environmental Defense Fund (EDF)

filed a lawsuit to enforce the statutory

deadlines for listing decisions in RCRA

section 3001(e)(2). (EDF v. Browner,

D.D.C. Civ. No. 89–0598). To resolve

most of the issues in the case, EDF and

EPA entered into a consent decree,

which has been amended several times

to revise deadlines for EPA action.

Paragraph 1.d (as amended) of the

consent decree addresses the paint

production industry:

EPA shall promulgate a final listing

determination for paint production wastes on

or before March 30, 2002. This listing

determination shall be proposed for public

comment on or before January 28, 2001. This

listing determination shall include the

following wastes: solvent cleaning wastes

(K078), water/caustic cleaning wastes (K079),

wastewater treatment sludge (K081), and

emission control dust or sludge (K082) for

which listings were suspended on January

16, 1981 (46 FR 4614), and off-specification

production wastes.

Today’s proposal satisfies EPA’s duty

under paragraph 1.d to propose

determinations for the specified paint

production wastes.

E. Existing Regulations That Apply to

This Industry

RCRA authorizes EPA to evaluate

industry waste management practices

and, if necessary, regulate how wastes

are handled to ensure that present or

potential hazards are not posed to

human health and the environment. In

addition to RCRA, the Clean Water Act

(CWA) and Clean Air Act (CAA) provide

EPA with the statutory authority to

evaluate industry practices and, if

necessary, regulate industry releases of

pollutants to environmental media such

as water and air.

Currently, there are no regulatory

requirements under RCRA that

specifically—identify paint production

waste streams as listed hazardous waste.

Paint production waste streams may,

however, carry hazardous waste listing

and/or characteristic codes if they are

generated from the use of certain

common organic solvents (spent solvent

wastes F001 through F005) or if they

exhibit a hazardous waste characteristic

(ignitability—D001, corrosivity—D002,

reactivity—D003, toxicity—D004—

D043). EPA is not soliciting comment on

these existing hazardous waste listings

and does not intend to respond to such

comments if received. As well, paint

production wastes subject to today’s

proposal remain subject to current

hazardous waste listings or

characteristics that render them

hazardous.

Regulatory requirements under the

CWA (40 CFR part 446) specify effluent

guidelines implemented through

national pollutant discharge elimination

system (NPDES) permits for certain

paint production wastes that are

discharged to navigable waters. These

regulations apply to paint production

wastes that originate from the

production of oil-based paint where

tank cleaning is performed using

solvents. In addition, manufacturers

who discharge wastewaters generated

from paint production to a publicly

owned treatment works (POTW) may be

required to comply with general

pretreatment requirements (40 CFR part

403) as established by the POTW.

Finally, some paint manufacturers send

their wastewaters to privately-owned

centralized wastewater treatment

facilities (CWTs) that are operated under

NPDES permits. The Agency recently

promulgated effluent guidelines for

these facilities at 40 CFR part 437.

Under the CAA there are two types of

regulatory requirements that may apply

specifically to paint production wastes:

National volatile organic compound

(VOC) emission standards and national

emission standards for hazardous air

pollutants (NESHAP). VOC emission

standards—which aim to reduce VOC

emissions and in turn reduce ozone

levels—exist for architectural coatings

(40 CFR part 59, subpart D; 63 FR

48848, September 11, 1998) and

automobile refinish coatings (40 CFR

part 59, subpart B; 63 FR 48806,

September 11, 1998). These standards

specify VOC levels for categories of

architectural and automobile refinish

coatings.

Subpart DD in 40 CFR part 63, sets

NESHAPs from off-site waste and

recovery operations (OSWRO). These

standards, in part, limit air releases from

off-site wastewater treatment facilities

(CWTs) (July 1, 1996, 61 FR 34140).

Furthermore, EPA is planning to

propose a MACT (Maximum Achievable

Control Technology) standard for paint

manufacturers (Miscellaneous Organic

Chemical and Coatings Manufacturing)

that would regulate hazardous air

pollutant (HAP) emissions from process

vents, storage tanks, transfer operations,

equipment leaks, and wastewaters.1

This would apply to wastewaters

managed on-site and also if sent off-site

for treatment.

F. What Industries and Wastes Are

Covered in This Proposed Rule?

1. Scope of Consent Decree

Today’s proposed rule applies to

paint and coatings manufacturers

generally categorized under subcodes

28511, 28512, and 28513 of Standard

Industrial Code (SIC) 2851, or North

American Industry Classification

System (NAICS) 325510 (subcodes -1,

-4, and -7). This includes, but is not

limited to, entities who manufacture:

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10067

2See also: Letter from Sylvia K. Lowrance to

Mark Schultz, May 16, 1991. This letter says that

returned pharmaceutical products are not

considered solid wastes until a decision is made to

discard them, because use/reuse is generally a

viable option.

paints (including undercoats, primers,

finishes, sealers, enamels, refinish

paints, and tinting bases), stains,

varnishes (including lacquers), product

finishes for original equipment

manufacturing and industrial

application, and coatings (including

special purpose coatings and powder

coatings). Products produced by this

industry that are included within the

scope of this proposed rule are referred

to as ‘‘paints’’ and/or ‘‘coatings.’’

Today’s proposal does not apply to

miscellaneous allied products (paint

and varnish removers, thinners for

lacquers and other solvent-based paint

products, pigment dispersions or putty)

included under SIC subcode 28515

(NAICS 325510A) or artist paint, which

is classified under SIC 3952 (NAICS

339942).

The waste streams included within

the scope of today’s proposal are the

following paint production wastes

generated by paint manufacturers: (1)

Solvent cleaning wastes as waste liquids

and solids generated from equipment

and tank cleaning operations; (2) water

and/or caustic cleaning wastes as waste

liquids and solids generated from

equipment and tank cleaning

operations; (3) wastewater treatment

sludge as waste solids generated in onsite or captive wastewater treatment

processes solely or primarily for treating

paint production waste liquids; (4)

emission control dust or sludge as waste

solids collected in a facility’s particulate

emission control devices such as

baghouses; and (5) off-specification

production wastes as waste solids.

EPA bases many of its decisions as to

the scope of the industries and wastes

covered in this proposal on the EDF v.

Browner consent decree. Paragraph 1.d

of the consent decree states:

Paint production wastes—EPA shall

promulgate a final listing determination for

paint production wastes on or before March

30, 2002. This listing determination shall be

proposed for comment on or before January

28, 2001. This listing determination shall

include the following wastes: solvent

cleaning wastes (K078), water/caustic

cleaning wastes (K079), wastewater treatment

sludge (K081), and emission control dust or

sludge (K082) for which listings were

suspended on January 16, 1981 (46 FR 4614),

and off-specification production wastes.

(Emphasis added)

For solvent cleaning wastes, water/

caustic cleaning wastes, wastewater

treatment sludge and emission control

sludge or dust, we believe that the

decree requires us to address only those

industries and wastes included in the

paint production wastes listing that the

Agency suspended on January 16, 1981.

After reviewing the original rulemaking

record for the suspended interim final

rule, we have determined that while

EPA did initially look at the entire paint

and coatings SIC classification, which

included miscellaneous allied products,

we ultimately narrowed the scope of the

suspended paint listings to exclude this

category. Therefore, manufacturers of

allied products and allied products

production wastes are not covered by

the decree. Moreover, nothing in the

1980 rulemaking record suggests that

artist materials were considered in this

earlier listing development work.

Therefore, EPA does not interpret the

decree to require assessment of solvent

cleaning wastes, water/caustic cleaning

wastes, wastewater treatment sludge,

and emission control sludge or dust

from the production of artist paint. (For

more information on how EPA

determined the scope of the suspended

paint listings, refer to the accompanying

Listing Background Document.)

Concerning ‘‘off-specification

production waste,’’ we believe that the

most straightforward reading of the

consent decree is that this waste stream,

although not part of the suspended

listings, has the same scope as the other

enumerated waste streams. In other

words, the decree does not require us to

address off-specification allied products

and artist paints. Nothing in the decree

suggests that either party intended the

off-specification production waste

stream to apply more narrowly or more

broadly than the other waste streams.

Thus, EPA has assessed only offspecification paint production wastes

from subcodes 28511, 28512, and 28513

of Standard Industrial Code (SIC) 2851.

EPA, however, interprets the decree to

exclude off-specification paint products

that have been shipped out to retailers

or paint users. EPA believes that these

downstream entities do not engage in

paint production. Consequently, EPA

has not evaluated off-specification paint

which a downstream entity decides to

discard or send back to the

manufacturer. Moreover, as explained

below, EPA thinks that downstream

entities can presume that unused paint

products returned to a paint production

facility will be legitimately reused and,

thus, will not be solid wastes, even if

they exhibit a hazardous waste

characteristic.

2. Scope of Listing: Off-Specification

Products

EPA is proposing to include within

the category of off-specification paints

all products which a paint manufacturer

decides not to use—whether or not the

paint product meets applicable product

specifications. Not all of these unused

products literally fail to meet product

specifications; paint producers cite a

variety of reasons for deciding not to

sell them as originally intended. EPA

believes that any unused products,

whatever the reason they are unused,

could present similar risks. Moreover,

facilities would find it cumbersome to

distinguish between off-specification

products and other unused products.

EPA is proposing not to go beyond the

scope of the consent decree to include

within the listing off-specification paint

products which retailers or users decide

to discard or return to manufacturers.

However, EPA is proposing to go

beyond consent decree requirements to

include within the scope of today’s

proposed listing returned, unused

products once a manufacturer obtains

possession or control of them. EPA

believes that ‘‘returned’’ unused

products could pose risks similar to

those posed by unused products that

never go off-site. And, as discussed

above, facilities would find it

cumbersome to distinguish between

returned products and ‘‘never sent’’

products. EPA refers to all of these

unused products that will not be sold

for their original, intended use as ‘‘offspecification’’ paint products.

3. Recycling Issues

EPA notes that off-specification paint

production wastes can be recycled in

ways that will not be regulated as

hazardous waste management. Under

current regulations defining ‘‘solid

wastes,’’ unused paint reused as a

legitimate ingredient in the manufacture

of other paint is not considered a

‘‘waste’’ and thus will not be subject to

the hazardous waste regulations. EPA

notes that paint manufacturers

commonly reuse unused products to

make new paints. EPA also understands

that paint formulations are fairly

exacting, making it unlikely that a

manufacturer could successfully rework

paint containing significant quantities of

constituents that are not useful paint

ingredients. Typically, this type of reuse

of a commercial product (when

legitimate) is not regulated as waste

management, even if it involves

reclamation. See 40 CFR 261.2 2 In

addition, relatively small quantities are

sold for ‘‘lower-grade’’ uses; these

materials are still paint products, and no

aspect of this activity is regulated under

RCRA Subtitle C.

EPA wants to clarify the effect of

today’s proposed listing on ‘‘take-back’’

10068 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

3Letter from David Bussard to N.G. Kraul,

February 23, 1993. This letter says that offspecification paint is a non-listed commercial

product and not a solid waste when reclaimed.

programs in which retailers or

customers return unused paint because

it does not meet the customer’s

specifications or because it is unusable

for some other reason. EPA believes,

based on what it knows of the industry,

that a retailer or customer returning

unused paint to a paint manufacturer

can presume that the paint will be

legitimately used as an ingredient and

that, therefore, the paint being returned

is not a hazardous waste even if it

exhibits a hazardous waste

characteristic. EPA understands that

paint manufacturers will typically take

such returned paint and use it as a

legitimate ingredient in the manufacture

of another paint product. The retailer or

user will be entitled to rely on this

interpretation exempting returned paint

even if the manufacturer ultimately

decides to discard the unused paint

rather than reuse it. EPA has previously

taken the position that retailers or users

of pharmaceutical products returning

unused products to manufacturers are

not managing wastes 3. However, should

the paint production facility determine

it cannot or will not use the returned

paint as an ingredient, we are proposing

that the paint would then become an

off-specification paint product waste

that would need to be evaluated against

the concentrations proposed in today’s

rulemaking, as well as the hazardous

waste characteristics.

G. Description of The Paint and

Coatings Industry

Paint and coatings manufacturers are

concentrated near large metropolitan

areas, with the majority of facilities

located on the East Coast, and in

California, Texas and the Midwest. We

estimate that there are 972 paint and

coatings manufacturing facilities

operated in the United States by about

780 different companies (a few larger

companies operate several facilities).

For more information on how we

estimated this universe, refer to Section

II.H. Of this universe, we estimate that

about 95 percent of all these companies

meet the Small Business Administration

definition of a small business (total

company employment of fewer than 500

people, at the parent level, if a company

is a subsidiary). We estimate that

around 600 facilities are generating

wastes that fall within the scope of this

rulemaking.

The paint and coatings industry is

classified by the type of paint product

manufactured. Products are categorized

into three main groups according to end

use by the SIC classification as

architectural coatings, original

equipment manufacturing (OEM)

product finishes, and special purpose

coatings. Architectural coatings, also

referred to as trade sales paints, include

exterior and interior house paints,

stains, varnishes, undercoats, primers,

and sealers. OEM product finishes are

custom formulated for application to

products during the manufacturing

process. This includes coatings applied

to automobiles, appliances, machinery

and equipment, toys and sporting goods,

wood furniture and fixtures, coil

coatings, electrical insulation, factoryfinished wood, metal containers, paper,

film and foil, and non-automotive

transportation. Special purpose paints

are formulated for specific applications

or extreme environmental conditions

(fumes, chemicals, and temperature)

and include: high-performance

maintenance coatings (used in

refineries, public utilities, bridges, etc.);

automotive refinishing; highway traffic

markings; aerosol paints; and marine

coatings.

Paint Production. Paints and coatings

are formulated to protect and decorate

surfaces as well as enhance desired

surface properties such as electrical

conductivity and corrosion protection.

Inorganic and organic chemicals

comprise raw materials—solvents,

resins (or ‘‘binders’’), pigments, and

additives—that are mixed in a batch

process to make solvent or water-based

paint according to desired end-use

specifications. Batches of paint, which

may range in size from 10 to 10,000

gallons, are blended in stationary and

portable equipment such as mixers,

blenders, sand mills, and tanks.

Paint Production Waste Generation

and Management. Process equipment is

cleaned regularly to avoid product

contamination and to restore

operational efficiency. The equipment is

also cleaned during manufacturing shut

downs and when a significant change in

a production line occurs. Because paint

is a mixture of chemicals that does not

involve chemical reactions, the make-up

of paint production wastes reflects

chemicals used in batch production and

any ancillary chemicals such as those

used in cleaning process equipment.

Depending on the type of paint

manufactured, process equipment may

be cleaned with either solvent, water, or

aqueous caustic washes. These liquid

cleaning wastes consist of paint solids

and sludges which may contain

pigments, partially or completely cured

resins, and additives. Solvent cleaning

wastes, as well as water and/or caustic

cleaning wastes are defined by the type

of cleaning reagent used, not by the

material that is being removed through

the cleaning process. For example, you

can generate a solvent cleaning waste if

you clean a wastewater tank with a

solvent (or blend of solvent).

Paint manufacturing facilities may

also generate waste solids and liquids

included within the scope of this

proposed rule when (1) emission control

systems are emptied, (2) wastewaters are

treated and (3) off-specification product

is discarded. Airborne material is

generated when dry materials, such as

pigments, are loaded into processing

equipment. Air hoods and exhaust fans

help control the level of airborne

particulate material released into the

paint production areas. Material is

collected in emission control systems

such as baghouses. Pigments comprise a

large fraction of the dry materials

collected in emission control systems.

Other raw materials, including additives

(such as fillers) and solvents, may also

be collected in emission control

systems.

Water-based wastewaters are

primarily generated when process

equipment is cleaned. Additional

sources include floor washdown and

spill cleanup. The most common

treatment for these wastewaters is

physical-chemical. This usually

involves chemical addition and gravity

settling of suspended solids which

generates a liquid and sludge.

As discussed above in Section II.F,

‘‘off-specification’’ paint products

subject to this listing determination

include any unused paint products

which a paint manufacturer decides to

handle in a way that is regulated as

waste management. A paint may be

considered off-specification for a variety

of reasons. For example, it may not meet

the original design specifications; it may

be replaced by a new superior

production; or, the product’s shelf life

expires. As discussed earlier, offspecification paint products may be

reworked into saleable materials or

discarded. Off-specification product that

is discarded by a paint manufacturer is

subject to this listing.

Paint manufacturers may generate

some or all of these wastes. Waste

generation is a function, in part, of

volume and type of paint produced,

degree of automation, amount of

recycling, and age of facility. Treating,

handling, and disposing of these wastes

are costs associated with paint

production activities. Paint

manufacturers strive to reduce and/or

eliminate waste produced which in turn

reduces overall costs and improves

profitability and competitiveness.

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10069

4See Federal Register notices 4 FR 46375 (August

25, 1999) and 64 FR 71135 (December 20, 1999)

announcing EPA’s data collection request submitted

to the Office of Management and Budget (OMB). A

copy of the questionnaire is available in the public

docket for today’s proposed rule. This information

collection request was approved by the OMB,

Clearance Number 2050–0168 (expiration date: June

30, 2001).

5Stratified random sampling is a statistical

procedure that first dividends the sampling

population into subpopulations or strata with

respect to several characteristics such that within

the individual strata there is as much homogeneity

as possible, and then selects samples randomly

from the individual strata. This procedure improves

generalizations about the whole population and, if

Continued

H. What Information Did EPA Collect

and Use?

Our primary sources of data to

support this proposed listing

determination are a questionnaire (or

‘‘survey’’) of the paint and coatings

manufacturing industry and existing

literature. We conducted a survey under

authority of RCRA section 3007, 42

U.S.C. 6927.4 As part of the survey

development process, we went on ten

site visits to paint manufacturing

facilities throughout the country.

Please note that we did not sample

waste streams generated by the paint

and coatings industry to support this

proposed listing determination. As

discussed earlier, there are about 1000

paint manufacturing facilities in the

U.S. paint and coatings industry. These

facilities combine raw materials (chosen

from a potential universe of several

thousand constituents) in batch

processes to manufacture products that

meet market demands for a wide variety

of architectural, original equipment

manufacture and product coatings, and

special purpose needs. Waste streams

generated at a facility (the same or

different facility) may vary significantly

because the type of product

manufactured, as well as raw materials

used, vary significantly. As a result, we

did not attempt to sample paint

production wastes described in this

proposal because we concluded it

would be impractical to conduct a data

collection effort that would account for

the wide variety of individual paint

products produced and the potential

variability in the waste characteristics.

Gathering sufficient samples to evaluate

all potential paint production wastes

would require a large commitment of

scarce Agency resources that would

have been beyond the reasonable scope

of this rulemaking. In addition, an

advantage of the concentration-based

listing approach that we have used in

this proposal is that it does not rely on

extensive waste sampling. Instead, we

are relying on publically available

sources of information as well as data

collected from survey responses to

characterize the constituents likely to be

present and the chemical and physical

properties of paint manufacturing

wastes.

1. Site Visits

To develop a better understanding of

industry practices and as a basis for

developing the industry survey, the

Agency conducted site visits at ten paint

manufacturing plants located

throughout the country. When selecting

sites, we considered: plant production

size, type of manufacturing process,

Toxic Release Inventory (or ‘‘TRI’’)

waste release information, and plant

location. The information we obtained

from these visits (other than that for

which a Confidential Business

Information (CBI) claim has been made

and sustained) is available for public

review in the docket for this

rulemaking. (For more information

about CBI protection, please refer to 40

CFR part 2 subpart B.)

In particular, we collected

information on: (1) Types of production

and volume, (2) waste management

units used, (3) how each residual was

managed (as hazardous or not), (4)

evidence of off-spec product storage and

tracking system, (5) volume of each

residual generated and form and how

each is stored on-site, (6) management

practices for each residual for both onsite and off-site (POTWs, tanks), (7)

types of constituents used at plant, (8)

reuse of solvent/washwater (e.g.,

washwater used as ingredient in next

batch), (9) pollution prevention and

waste minimization practices, (10)

presence or absence of solvent recovery

stills on-site, (11) presence or absence of

any closed loop recycling practices, (12)

any appearance of unsafe operating

practices or disposal practices by

facility, and (13) housekeeping practices

on plant floor relative to waste

generation and management.

We used information collected at

these on-site visits combined with

additional information provided by

industry representatives to develop a

RCRA 3007 survey. For example, we

were able to include more appropriate

questions on waste management

practices and to distinguish wastes that

are recycled more clearly. This survey

requests information on waste

generation and management practices.

2. Database of Paint Manufacturing

Information From Published Sources

We also created an electronic

Database of Paint Manufacturing

Information from Published Sources

that is available in the docket. The

database consists of three modules. The

Raw Materials Module contains

information on different categories of

raw materials that are combined to make

paints. The Paint Formulations Module

contains information on the

concentrations of different raw materials

in selected paint formulations. The

Bibliography of Documents Module lists

the published reference materials which

were used as sources for other modules

in the database. These sources include

technical texts, journal articles, EPA and

other government studies, and

publications from paint industry trade

organizations.

3. The RCRA Section 3007 Survey

a. Overview. The purpose of the

survey was to gather information about

nonhazardous and hazardous waste

generation and management practices in

the U.S. paint and coatings

manufacturing industry. Specifically,

we requested information on the five

waste streams of concern (as outlined in

the Consent Decree obligations, See

Section II.D.2), waste characteristics,

and waste management practices.

In addition to determining the content

of the survey, we also evaluated

whether it was necessary to conduct a

census of the industry in order to

accurately depict this industry’s current

waste generation and management

practices. Due to the size of the paint

manufacturing industry, and in

consideration of our time and resource

constraints, we could not conduct a full

census of all the facilities in the

industry. Therefore, we surveyed a

sample of the universe rather than

conduct a full census. Random sampling

is a widely used statistical approach to

collecting representative data from a

large population. To ensure that this

survey would provide the best overall

coverage for various industry subsets

and identify all significant waste

management practices throughout the

industry, we used accepted statistical

sampling methods to achieve a 90%

probability or confidence level that our

survey would find a waste management

activity utilized by at least one in 20

paint manufacturing facilities within the

various categories of generators we

identified via our literature search

(discussed below). In other words, we

determined a sample size such that it

would be large enough to ensure a high

certainty (90% likelihood) of identifying

any waste management practices with

more than 5% chance of occurrence.

Using a statistical stratified randomsampling scheme 5 designed to represent

10070 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

properly executed, generally leads to a higher

degree edition, Prentice-Hall, Inc., 1967.

6The Toxic Release Inventory (TRI) of routine

and accidental releases of toxic chemicals to the

environment reported by manufacturing facilities,

established per Section 313 of the Emergency

Planning and Community Right-to-Know Act of

1986. Facilities conducting the specified

manufacturing operations are required to report on

releases of certain toxic chemicals into the air,

water, and land provided certain conditions (having

ten or more full-time employees, and manufacturing

or processes over 25,000 pounds of the designated

chemicals, etc.) are met.

paint production types, sales volumes

and TRI reporting status, we selected

sufficient paint manufacturing facilities

from an industry database developed by

Dun & Bradstreet, a company of The

Dun & Bradstreet Corporation, 2000. We

believe this sampling survey adequately

covered the industry while reducing the

burden imposed by the survey on the

industry and reducing the time and

money spent by the government in

performing the survey.

Prior to finalizing the questionnaire,

we conducted a pilot test by sending the

questionnaire to three paint

manufacturing facilities which were not

included in the survey and modified the

questionnaire based on their comments.

Further, in order to assist the surveyed

facilities in understanding and

responding to the questionnaire, we

established toll-free telephone and email help lines, returned and answered

their calls or messages expeditiously,

and even helped some complete the

questionnaire over the telephone. Note

that, under RCRA section 3007, the

surveyed facilities are required to

provide accurate information and certify

under penalty of law. However, to

ensure accuracy and completeness, we

conducted a quality assurance review of

the information and data provided in

the questionnaire responses, such as

identifying data entry errors, missing

data, and internal inconsistencies

between answers. The review of each

facility’s response resulted in follow-up

telephone calls and/or letters to some

facilities seeking clarifications,

corrections, and additional/missing data

where needed. We entered data from the

questionnaire responses into a database

known as the Paint Residual Master

Database, and conducted additional

quality assurance reviews on the

database. Hard copies of the

questionnaire responses and a CD–ROM

copy of the response database are

available in the public docket for

review.

We compiled and analyzed these data

to develop a general assessment of the

paint industry’s waste generation and

management practices. We also used

these data for our risk assessment,

economic analysis of the potential

impacts of hazardous waste regulation,

and Land Disposal Restrictions (LDR)

and treatment and management capacity

analyses.

b. Structuring The Survey to Capture

All The Wastes of Concern. As indicated

previously, the consent decree

obligations require the Agency to make

hazardous waste listing determinations

on five types of paint production

wastes. In the questionnaire, we

classified these five waste streams into

20 specific residuals for more detailed

waste characterization. These 20

residuals, including ten hazardous and

ten nonhazardous under current Federal

regulations, encompass liquid residual

from solvent cleaning, sludge residual

from solvent cleaning, liquid residual

from wash water, sludge residual from

wash water, liquid residual from caustic

wash water, sludge residual from

caustic wash water, sludges from

wastewater treatment, emission control

dust, emission control sludge, and offspecification product. As discussed later

in Sections III and IV, we eventually

used the detailed waste characterization

information from the survey to divide

the paint production waste streams of

concern into waste solids and waste

liquids for today’s proposed listing.

c. Identifying The Universe of Paint

Manufacturing Facilities. Initially, using

a variety of industrial and business data

sources described in the listing

background document, we estimated

that there are approximately one

thousand paint manufacturing facilities

of interest in the United States. We

found no single, comprehensive listing

of all paint manufacturing facilities.

However, we identified the 1998–99

Dun & Bradstreet database as the data

source that would provide the most

thorough listing of paint manufacturers

in the United States that was available

in electronic format. We used the Dun

& Bradstreet database to develop a

sampling population and to stratify the

sampling population into categories

based on paint types and sales volumes.

We also looked at the American

Business Directories List of paint and

allied product manufacturers and the

1999 Paint Red Book published by

Cygnus Publishing, but found that they

were less suitable to our needs for

sampling stratification purposes. We

found that there was insufficient

information in the latter two databases

for us to distinguish the types of paint

production by facilities and whether

some facilities were clearly out of scope

and classify them into our desired paint

production categories (architectural,

OEM, etc.). The Dun & Bradstreet

database includes a well defined and

easily understandable breakdown of the

various paint manufacturing types we

used to classify them into OEM and

architectural related paint categories,

and eliminate those apparently of no

interest to this listing determination.

Specifically, each entry in the Dun &

Bradstreet database is identified by an 8-

digit code, with the first four being the

same as SIC’s and the next four

proprietary to Dun & Bradstreet that

represent the classifications of the

facilities. The coding system used in the

Dun & Bradstreet database provided the

level of detail necessary to more

accurately divide the paint industry into

the necessary strata for our use.

d. Constructing a Stratified Random

Sample. We stratified paint

manufacturing facilities into various

categories for this sampling survey

because we expected we might find

differences in waste generation and

management practices among various

types of paint producers (architectural,

OEM, etc.) and by sampling the various

categories we would be more likely to

identify the full range of management

practices. We also believed that larger

facilities (with higher sales volumes)

conduct more waste management

activities, and smaller facilities (with

lower sales volumes) tend to have more

recycling or reuse efforts in order to

compete in business. Furthermore,

manufacturing facilities subject to the

Toxic Release Inventory (TRI) 6

reporting are required to report annual

releases of toxic chemicals to waste

management units and environmental

media. As such, we were particularly

interested in SIC 2851 paint

manufacturers that are listed under TRI

because they would also likely provide

more information on waste constituents

and management practices of concern to

this listing determination. Therefore, we

stratified the facilities based on three

categorization criteria: Paint types, sales

volumes, and TRI status, as elaborated

below.

In the Dun & Bradstreet database, we

found a total of 1,764 facility entries

identified under SIC 2851. We removed

those entries that are either apparent

non-paint manufacturers, or entries we

determined that are outside of the scope

of this listing determination, or entries

we found impossible to identify for

stratification purposes. In the end, we

adopted the remaining 884 facilities as

the sampling population for this survey.

Next, we stratified the 884 potential

paint manufacturing facilities into 12

categories, based on the three

categorization criteria discussed above:

paint types; sales volumes (less than

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10071

7Steel, Robert G.D. and James H. Torrie,

‘‘Principles and Procedures of Statistics: A

Biometrical Approach,’’ 1980, Second Edition,

McGraw-Hill, Inc.

8As stated in the questionnaire instructions,

facilities were not required to report on any of the

residuals that are used directly without reclamation

as ingredients in manufacturing processes to make

new products; or used directly as effective

substitutes for commercial products; or returned

directly to the original process from which they are

generated as a substitute for raw feed stock. These

residuals are excluded from the definition of solid

waste. See 40 CFR 261.2.

five million dollars, five to twenty

million dollars, and greater than twenty

million dollars, based on the Census

Bureau’s figures); and TRI status

(whether the facility reported under TRI

in 1997). These 12 categories comprise

large, medium, and small facilities of

the following combinations:

Architectural-related production and on

the TRI list; OEM-related production

and on the TRI list; architectural-related

production and not on the TRI list;

OEM-related production and not on the

TRI list. Also note that three categories

contained no facilities: medium

architectural-related paint production

and on the TRI list, large OEM-related

paint production and on the TRI list,

and medium OEM-related paint

production and on the TRI list.

To select a sample from the 884

sampling population for distributing the

questionnaire, we developed a stratified,

statistical random-sampling scheme

based on the above stratification process

and using the hypergeometric

probability formula described in Steel

and Torrie,7 such that the sample size

would represent a 90% probability of

capturing a waste management practice

conducted by at least one in 20 facilities

(discussed above). Under these criteria,

higher percentages of facilities were

selected in the medium and large

facility categories. All selected facilities

were then randomly chosen within the

various categories to avoid bias when

sending questionnaires to the surveyed

facilities. This sampling approach

reduced the probability of including

known non-paint manufacturers or

manufacturers not of interest to this

rulemaking in the survey, and increased

the chance of capturing sufficient waste

management activities. Otherwise, more

of the small facilities would have been

surveyed, but large manufacturing

facilities and TRI generators which

would likely provide more waste

management information could have

been left out.

We developed a statistical weight for

each category of surveyed facilities to

extrapolate from those facilities we

actually surveyed to the larger sampling

population of 884 facilities. The weight

for each surveyed facility in a category

represents its relationship to the total

number of facilities in the category. For

example, we surveyed 28 facilities from

a category of 34 facilities; 63 facilities

from a category of 255 facilities; 13

facilities from a category of 99 facilities,

etc. As a consequence, each of the 28

facilities sampled from the category of

34 facilities represents 1.2143 facilities

(34 ÷ 28 = 1.2143); each of the 63

facilities sampled from the category of

255 represents 4.0476 facilities (255 ÷

63 = 4.0476); and each of the 13

facilities sampled from the category of

99 represents 7.6154 facilities (99 ÷ 13

= 7.6154), etc. These numbers (1.2143,

4.0476, 7.6154, etc.) are the statistical

weighting values (or weights) to be

applied to each facility in each of the 12

categories for analysis of the collected

data (such as waste quantities). For a

detailed description of our statistical

methodology and stratification process,

see ‘‘Supporting Statement—

Information Collection Request for Paint

Manufacturing Industry Waste Survey,

Part B’’ which was submitted to the

OMB as part of the ICR for review and

approval, and the listing background

document available in the public docket

for this proposed rule.

e. Conducting The Survey and

Analyzing The Results. Using this

stratified random-sampling scheme, we

distributed the questionnaires in

February and March of 2000 to a total

of 299 facilities out of the sampling

population of 884 from the Dun &

Bradstreet database that we identified as

the potentially impacted paint

manufacturing facilities in the United

States.

Of the 299 questionnaires we

distributed, 292 facilities responded to

the questionnaires. We found that in

1998, 187 of the survey respondents

manufactured paint products of interest

to this listing determination. Thirty six

of these 187 facilities identified

themselves as paint manufacturers, but

in 1998 did not generate or dispose of

any of the waste residuals within the

scope of the questionnaire because they

recycled or reused all paint residuals as

feedstock in their manufacturing

processes.8 The other 151

manufacturing facilities generated one

or more of the waste residuals of

concern. They provided information on

their waste generation and management

practices. Most of these 151

manufacturing facilities also reused

their waste residuals on-site to some

extent, either as feedstock in the paint

production or as an ongoing cleaning

solution. The remaining respondents

identified themselves as either a paint

sales agent, a non-paint manufacturer, a

non-paint manufacturer until after 1998,

no longer a paint manufacturer, or a

paint-related manufacturer not under

the scope of the questionnaire. Table

II.H.-1 provides a summary of the

number of potential paint

manufacturing facilities selected from

the Dun & Bradstreet database, the

number of facilities surveyed, the

number of facilities responded, and the

number of paint manufacturing facilities

of interest found, in each category of

facilities.

TABLE II.H.–1.—SUMMARY OF THE NUMBERS OF POTENTIAL PAINT MANUFACTURING FACILITIES SELECTED, SURVEYED,

RESPONDED AND PAINT MANUFACTURING FACILITIES FOUND

Facility category

Number of

selected

Dun & Bradstreet facilities in

category

Number of

randomly

sampled facilities in

category

Number of

survey respondents

in category

Number of

within-scope

paint manufacturers

found in

category

Large, 2851–01, and TRI ................................................................................................ 2 2 2 2

Medium, 2851–01, and TRI ............................................................................................. 0 0 0 0

Small, 2851–01, and TRI ................................................................................................. 6 6 6 6

Large, 2851–01, and non-TRI ......................................................................................... 34 28 28 17

Medium, 2851–01, and non-TRI ...................................................................................... 62 48 47 42

Small, 2851–01, and non-TRI ......................................................................................... 379 77 75 44

Large, 2851–02, and TRI ................................................................................................ 0 0 0 0

Medium, 2851–02, and TRI ............................................................................................. 0 0 0 0

10072 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

TABLE II.H.–1.—SUMMARY OF THE NUMBERS OF POTENTIAL PAINT MANUFACTURING FACILITIES SELECTED, SURVEYED,

RESPONDED AND PAINT MANUFACTURING FACILITIES FOUND—Continued

Facility category

Number of

selected

Dun & Bradstreet facilities in

category

Number of

randomly

sampled facilities in

category

Number of

survey respondents

in category

Number of

within-scope

paint manufacturers

found in

category

Small, 2851–02, and TRI ................................................................................................. 7 7 7 7

Large, 2851–02, and non-TRI ......................................................................................... 23 22 22 14

Medium, 2851–02, and non-TRI ...................................................................................... 47 34 34 24

Small, 2851–02, and non-TRI ......................................................................................... 324 75 71 31

Total number of facilities .......................................................................................... 884 299 292 187

We believe the Dun & Bradstreet

database properly represents the paint

manufacturing universe

(notwithstanding the database

inevitably includes some out-of-scope

operations also listed under SIC 2851).

We used sound, widely accepted

statistical methods to construct our

stratified random-sample covering the

variety of paint manufacturing types,

paint production wastes, and waste

management practices of interest to this

listing determination. Therefore, we

believe the survey results are

representative of the paint

manufacturing facilities in the sampling

population as well as the universe of

paint manufacturers of interest.

Furthermore, based on our sample

quality review, data analysis, and

intensive follow-up with survey

respondents, we believe that the data

collected from the 187 survey

respondents are valid and reliable.

Nevertheless, we specifically request

data with which to evaluate our

assumption that the Dun & Bradstreet

database properly represents the paint

manufacturing universe, as well as

comments on our approach to sampling

and extrapolation of sampling results.

We used survey data in three forms:

(1) Direct survey responses representing

only the surveyed population; (2)

weighted data to extrapolate to the

sampling population; and (3) data

extrapolated to the universe of paint

manufacturing.

We used survey responses directly

when data extrapolation to the sampling

population or the paint universe would

not be necessary, such as the patterns of

waste management practices (see

Section III.D).

As previously discussed, we derived

independent weighting values

corresponding to the number of

facilities represented by each surveyed

facility in each category. If the total

quantities of a certain residual generated

by Category X facilities with a weight of

3.629 were 2,000 tons and by Category

Y facilities with a weight of 8.8571 were

1,000 tons, and if facilities in the other

categories did not report any, then the

combined residual quantities generated

by the entire sampling population of

884 can be calculated as 2,000 tons ×

3.629 + 1,000 tons × 8.8571 = 16,115

tons. We used weighted waste quantities

or volumes to represent the waste

volumes sent from each facility in the

sampling population to a particular

management practice for input to our

national risk modeling analysis. See

discussions in Sections III.D and E.

Overall, 64% (i.e., 187 ÷ 292) of the

292 respondents are paint

manufacturing facilities of interest to

this rulemaking. Proportionally, there

should be 566 paint manufacturing

facilities in the sampling population of

884 (from the Dun & Bradstreet

database). As explained earlier, because

there is no comprehensive, single listing

of all paint manufacturing facilities, we

relied on a number of data sources to

estimate that there are 972 paint

manufacturers. This estimate of 972

paint manufacturers in the universe was

derived from the total number of paint

manufacturing facilities of interest (187)

found from the survey, by extrapolating

through the percentages of SIC 2851

facilities in the Dun & Bradstreet

database that are represented by the 187

facilities. For a more detailed analysis,

see the listing background document in

the public docket for this proposed rule.

To estimate the total waste generation

by the entire population of U.S. paint

manufacturers (or universe), weighted

data from the survey (representing the

quantities generated by the 566 paint

manufacturing facilities in the sampling

population, as described above) is

extrapolated using a multiplier of

1.7173 (= 972 ÷ 566). For example, if the

total quantities of a certain residual

generated by the 566 paint

manufacturing facilities in the sampling

population were calculated as 16,115

tons, the universe waste quantities of

this residual would become 16,115 tons

× 1.7173 = 27,674 tons. We used such

extrapolated universe waste quantities

for our waste treatment and

management capacity analysis (see

Section VI.E) and economic impacts

analysis (see Section IX.E). In general,

these extrapolated figures appear

consistent with data in the Biennial

Report System (see the Economic

Assessment in the docket for today’s

proposed rule).

f. Meeting Our Objectives for The

Survey. We believe our statistical

stratified random-sampling survey

collected data are representative of the

paint manufacturing industry in the

United States, and that the responses

provided sufficient data for our use in

making this listing determination. We

realize that uncertainties exist in our

survey. There is uncertainty in the exact

number of the U.S. paint manufacturing

facilities. In addition, despite our

quality assurance reviews, there could

still be data source or sampling errors as

in any other sampling or even census

surveys. For instance, some facilities

might have entered inaccurate

information inadvertently. Nevertheless,

we have used our best efforts to collect

representative data. By employing a

statistically representative stratification/

categorization approach aimed at

surveying all types of manufacturing

facilities and their waste streams, our

unequal sampling survey (higher

percentages of facilities were surveyed

for some categories of large and medium

facilities) actually enhanced the chance

of identifying the rare waste

management activities practiced by the

paint manufacturing industry and in

turn increased survey precision. This

approach is reasonable and an

acceptable statistical tool to ensure the

best possible coverage.

Our subsequent statistical re-analysis

of the questionnaire returns indicated

that we achieved satisfactory statistical

probabilities for finding a waste

management activity used by one in 20

facilities. The final probabilities

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10073

achieved are discussed in the listing

background document in the public

docket for this proposed rule. In short,

the probabilities achieved for two

categories of paint manufacturing

facilities, 85% and 86.2%, were under

90%, while the probabilities achieved

for the other categories ranged from

91.7% to 100%. More importantly, the

survey successfully captured a wide

variety of intermediate and final waste

management practices of most interest

as discussed in Section III.D. Therefore,

we believe we have made a reasonable

effort to identify all management

practices and that we have met the

objective of our sampling survey

designed for this listing determination.

III. Approach Used in This Proposed

Listing

A. Summary of Today’s Action

In listings promulgated by EPA, we

typically describe the scope of the

listing in terms of the waste material

and the industry or process generating

the waste. However, in today’s rule we

are proposing to use the recently

developed ‘‘concentration-based’’

approach for listing paint manufacturing

wastes. This approach was originally

proposed for wastes generated by the

Dyes and Pigments industry (64 FR

40192 of July 23, 1999). In a

concentration-based listing, a waste

would be hazardous unless a

determination is made that it does not

contain any of the constituents of

concern at or above specified levels of

concern. This approach draws from the

concept of the toxicity characteristic to

define a hazardous waste based on

concentration levels of key constituents

in the wastes. We describe this concept

in detail later in this notice.

We are proposing two hazardous

waste listings for paint manufacturing

waste solids, K179 and for liquids,

K180. If you generate paint

manufacturing wastes from tank and

equipment cleaning operations that use

solvents, water, and/or caustic; emission

control dusts; wastewater treatment

sludges; or off-specification product, as

specified in each listing description,

you would need to determine whether

your waste contains any of the

constituents of concern identified for

each listing at a concentration equal to

or greater than the hazardous

concentration level set for that

constituent. However, the liquid K180 is

a contingent listing. If your waste

liquids are managed exclusively in

tanks or containers prior to discharge to

a POTW or under an NPDES permit,

your waste would not be subject to the

listing, and you would not need to make

a hazardous waste determination for

those wastes. We believe that under this

proposed contingent listing approach,

the vast majority of waste liquids would

not pose unacceptable risks and would

not be subject to the listing. The

approach is discussed in detail in

Section IV. The proposed listing

descriptions are as follows:

• K179—Paint manufacturing waste solids

generated by paint manufacturing facilities

that, at the point of generation, contain any

of the constituents identified in paragraph

(b)(6)(iii) of this section at a concentration

equal to or greater than the hazardous level

set for that constituent in paragraph (b)(6)(iii)

of this section. Paint manufacturing waste

solids are: (1) Waste solids generated from

tank and equipment cleaning operations that

use solvents, water and/or caustic; (2)

emission control dusts or sludges; (3)

wastewater treatment sludges; and (4) offspecification product. Waste solids derived

from the management of K180 by paint

manufacturers would also be subject to this

listing. Waste liquids derived from the

management of K179 by paint manufacturers

are not covered by this listing, but such

liquids are subject to the K180 listing. For the

purposes of this listing, paint manufacturers

are defined as specified in paragraph (b) of

this section.

• K180—Paint manufacturing waste

liquids generated by paint manufacturing

facilities that, at the point of generation,

contain any of the constituents identified in

paragraph (b)(6)(iii) of this section at a

concentration equal to or greater than the

hazardous level set for that constituent in

paragraph (b)(6)(iii) of this section unless the

wastes are stored or treated exclusively in

tanks or containers prior to discharge to a

POTW or under a NPDES permit. Paint

manufacturing liquids are generated from

tank and equipment cleaning operations that

use solvents, water, and/or caustic. Waste

liquids derived from the management of

K179 by paint manufacturers would also be

subject to this listing. Waste solids derived

from the management of K180 by paint

manufacturers are not covered by this listing,

but such solids are subject to the K179

listing. For the purposes of this listing, paint

manufacturers are defined as specified in

paragraph (b) of this section.

Due to the uncertainties in our assessment

of the management of paint manufacturing

waste liquids in surface impoundments, we

are seriously considering an alternative

proposal not to list paint manufacturing

waste liquids. We describe this alternative

and our reasoning for this option later in this

notice (see Section IV.D). The following

discussion describes the approach we are

proposing if K180 is listed.

If you generate any of these paint

manufacturing wastes that you currently

believe are characteristically hazardous

or subject to another hazardous waste

listing, you would still need to

determine whether your waste is a listed

hazardous waste under K179 or K180

(unless as noted above you are not

subject to K180 because your wastes are

managed exclusively in tanks or

containers and then discharged to a

POTW or under an NPDES permit). We

are proposing that all generators could

use knowledge of the waste to make an

initial determination as to whether any

of the regulated constituents are present

in the waste. If you determine that none

of the constituents are present in your

wastes at the point of generation, then

you would have no further obligation

for determining whether or not your

wastes are K179 or K180 listed

hazardous wastes (assuming the

regulated constituents are in fact not

present in your wastes). If you

determine that any of the constituents

are present in your waste, then we are

proposing that you must either use a

two-tiered approach (see Section V.C for

description) to determine whether the

constituent concentrations in your

waste are below the concentration levels

in the listing or assume that your wastes

are hazardous at the point of generation.

Under the proposed two-tiered

approach, if your total projected annual

generation of paint manufacturing waste

solids is over 40 metric tons, and/or

over 100 metric tons of paint

manufacturing waste liquids, you would

need to test your wastes annually to

determine whether concentration levels

are below the listing concentrations. If

your wastes remained nonhazardous for

three consecutive years of testing and

you have no significant changes to your

product and/or manufacturing or

treatment processes, the annual testing

requirement would be suspended. If you

made significant changes to product

and/or manufacturing or treatment

processes, the annual testing

requirements would be reinstated. If

your projected annual waste generation

is below these volumes, you would have

the option of either using knowledge of

the waste or testing to determine

whether constituent concentrations are

below the listing concentrations. If any

constituent is present at or above the

concentration level, then your waste is

hazardous waste. We are proposing that

generators with annual waste generation

exceeding 40 metric tons of solids and/

or 100 metric tons of liquids keep

limited records on-site.

If your wastes meet the listing

description, they would be subject to all

applicable RCRA subtitle C hazardous

waste requirements, including LDR

requirements. This means that any

characteristically hazardous wastes or

wastes hazardous under other listing

codes (for example F codes) that are

determined to be hazardous under these

listings would also be subject to

10074 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

9Paint and Coating Raw Materials, 1996. Michael

and Irene Ash, Synapse Information resources,

Gower Publishing Ltd, lists more than 11,000 trade

names and generic raw materials from 1300

manufacturers that are available for use in paints.

treatment requirements for K179 and

K180, in addition to any other

applicable treatment requirements.

There are several differences in the

way the ‘‘derived from’’ rule (40 CFR

261.3(c)(2)(i) would be applied to these

wastes that have one or more

constituents above the proposed riskbased levels. Residues from the

treatment of solid K179 wastes are no

long hazardous wastes if their

constituent concentrations are below the

concentration levels for K179. However,

these treatment residues would still be

subject to all LDR requirements. As

explained in Section IV, liquid K180

wastes, however remain subject to the

derived from rule. Also, the listing

descriptions make it clear that if a liquid

is generated from the onsite

management of the solid K179 waste, it

is no longer subject to the K179 listing,

rather it is subject to the K180 listing.

If a solid is generated from the onsite

management of the liquid K180 waste,

it is no longer subject to the K180

listing, rather, it is subject to the K179

listing. Once K179 or K180 wastes are

sent offsite waste codes do not change.

These provisions are discussed in

Section IV.F.

B. What Is a Concentration-Based

Listing?

A concentration-based listing

specifies constituent-specific levels in a

waste that cause the waste to become a

listed hazardous waste. In this proposed

rule, we identify constituents of concern

likely to be present in solvent, water,

and/or caustic cleaning residuals;

wastewater treatment sludges; emission

control dust or sludges; and offspecification products and which may

pose a risk above specified

concentration levels. Using risk

assessment tools developed to support

our hazardous waste identification

program, we assessed the potential risks

associated with the constituents of

concern in plausible waste management

scenarios. From this analysis, we

developed ‘‘listing concentrations’’ for

each of the constituents of concern in

the waste categories listed above.

If you generate any paint

manufacturing waste liquids or solids

addressed by this proposed rule,

including any listed or characteristically

hazardous wastes, you would be

required either to determine whether or

not your waste is hazardous or assume

that it is hazardous as generated under

today’s proposed K179 and K180

listings. We are proposing that you must

make a determination whether your

waste is a listed hazardous waste

through process knowledge or by

determining representative

concentrations for the constituents of

concern in your waste through sampling

and analyses (depending on the

volumes of hazardous waste and

nonhazardous waste within the scope of

this listing that you generate each year).

You can use process knowledge to

demonstrate that the constituents of

concern are not present in your waste.

Your waste would be a listed hazardous

waste if it contains any of the

constituents of concern at a

concentration equal to or greater than

the hazardous concentration identified

for that constituent. The detailed

descriptions of the steps you would be

required to follow to implement the

concentration-based listing are

described later in this proposed rule.

C. Why Is a Concentration-Based

Approach Being Used for This Listing?

Thousands of constituents, also

referred to as paint raw materials or

ingredients, are used in paint

formulations.9 At the same time, there

are a number of chemicals that are very

widely used in many different types of

paints. Because paints are produced in

batch processes that generally do not

involve chemical reactions among the

raw materials, the finished paint and

wastes consist of a mixture of the

different raw materials. Paint

production wastes can also contain

constituents used for tank cleaning and

other maintenance operations. As a

result, it is straightforward for a

manufacturer to know what constituents

are likely to be present in his wastes.

Taking these facts into account, a

concentration-based approach to listing

paint production wastes as hazardous

has a number of advantages. We can use

the approach to focus more narrowly on

ingredients that are likely to be widely

used in paint formulations and that are

likely to pose risks to human health and

the environment. A concentration-based

approach allows generators to evaluate

the variable wastes they generate

individually for hazard, so only the

truly hazardous wastes are listed. This

can place less burden on paint

manufacturers than a traditional listing

that brings entire waste streams into the

hazardous waste system, regardless of

the characteristics of wastes generated

by individual generators. The level of

any burden reduction depends on the

costs of testing and the amount and type

of wastes generated by a given facility.

This approach is protective because it

relies on concentration levels

specifically set to protect human health.

Finally, a concentration-based listing

approach may provide an incentive for

hazardous waste generating facilities to

modify their manufacturing processes or

treat their wastes. For example, if a

manufacturer has a listed hazardous

waste based on constituent-specific

concentration levels established by EPA,

he also knows that if the concentration

levels are reduced below the regulatory

level due to raw material substitution or

process change, the waste would not be

regulated as listed hazardous waste.

Therefore, the generator may decide to

substitute raw materials in order to

generate a nonhazardous waste

(assuming that the waste does not carry

any other listed or characteristic

hazardous waste codes). This approach

encourages waste minimization and

reduced use of toxic constituents, goals

of both RCRA and the Pollution

Prevention Act of 1990 (42 U.S.C. 13101

et seq., Pub. L. 101–508, November 5,

1990).

RCRA, section 1003 states that one

goal of the statute is to promote

protection of human health and the

environment and to conserve valuable

material and energy resources by

‘‘minimizing the generation of

hazardous waste and the land disposal

of hazardous waste by encouraging

process substitution, materials recovery,

properly conducted recycling, and reuse

and treatment.’’ Section 1003 further

provides that it is a national policy of

the United States that, whenever

feasible the generation of hazardous

waste is to be reduced or eliminated as

expeditiously as possible.

The Pollution Prevention Act of 1990

provides a hierarchy of approaches.

Pollution should be prevented or

reduced; pollution that cannot be

prevented should be recycled or reused

in an environmentally safe manner;

pollution that cannot be prevented/

reduced or recycled should be treated;

and disposal or release into the

environment should be chosen only as

a last resort. If EPA provides a

concentration-based target in the listing,

generators would have the regulatory

and economic incentive to meet the

reduced levels.

Alternatively, we could have

attempted to collect more information

on these specific wastes to support the

traditional listing approach, i.e., without

any concentration limits. However, such

a data collection effort would have been

difficult due to the large number of

paint production facilities, coupled with

the wide variety of individual paint

products and the potential variability in

waste characteristics. Considering the

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10075

10Note that we used weighted waste quantities in

our risk assessments (explained in Section II.H(e)),

because the weighted quantities are directly derived

from our survey data and we are more certain these

waste quantities represent the true distribution of

the sampled population.

extensive sampling effort that this

would require, and the relatively small

quantities of wastes produced by

individual paint facilities, we do not

feel that such an effort was justified.

D. How Did the Agency Use the Survey

Results for This Proposed Listing

Determination?

We used the 3007 survey data for

several purposes: (1) To provide the

information for a general assessment of

the paint and coating industry’s waste

generation and management practices;

(2) to identify plausible waste

management scenarios that are the basis

for our risk assessment and listing

determination; and (3) to serve as the

data input for risk modeling parameters

such as waste types and amounts sent

to specific management practices.

This section primarily addresses the

survey results as a basis for choosing

plausible management scenarios for risk

assessment and listing determinations

and for selecting data for input to our

risk modeling parameters. In addition,

we used the survey data for our land

disposal restrictions treatment capacity

analysis and for our economic impact

analysis discussed in sections VI and IX.

1. General Assessment of the Paint

Industry’s Waste Generation and

Management Practices

Our first step was to characterize the

U.S. paint and coating industry’s

generation and management practices.

We considered a series of questions,

such as: how much waste was generated

in 1998; of that total, how much was

RCRA hazardous waste and

nonhazardous waste; what types of

waste were generated; and how were

these wastes managed? Table III.D–1

captures the weighted quantities of

wastes within the scope of this listing

reported by facilities completing the

3007 survey. See Section II.H for a

discussion of the weighting process.

With respect to total amounts of waste

generated our analysis showed the

following:

• We extrapolated from our estimated 566

paint and coating manufacturers in the

sampling population of 884 to estimate that

there are 972 paint and coating

manufacturers, as explained in Section II,

H(e). Out of these 972, we estimate that about

600 facilities annually generate about

107,000 metric tons of hazardous and

nonhazardous waste within the scope of this

listing.10

• About 36 percent of paint manufacturing

wastes are already RCRA hazardous wastes,

while 64 percent are currently nonhazardous.

• A few paint manufacturers produce the

majority of the waste. Ten percent of

manufacturers generating waste potentially

within the scope of this listing generate about

80 percent of the total amount of waste; and

two percent of the manufacturers generate

about 50 percent of the total waste.

Approximately half of paint manufacturers

generate less than five metric tons of waste

per year.

• Paint manufacturers mainly generate five

types of nonhazardous waste liquids and

waste solids: washwater cleaning liquid,

washwater cleaning sludge, wastewater

treatment sludge, emission control dust and

off-specification product. As shown in Table

III.D–2, these five waste types account for

over 99% of all nonhazardous waste

generated in 1998.

• About 27 percent of the manufacturers

do not generate any waste—all their waste

liquids and waste solids are recycled back

into paint production processes.

After a thorough review of the data

and other general observations about the

paint industry generation and

management practices, we focused

further analyses only on nonhazardous

wastes. We believe that this approach is

appropriate because hazardous paint

manufacturing wastes are currently

managed according to RCRA Subtitle C

regulatory controls. From our survey of

the industry, we found that about 36%

of the paint manufacturing wastes were

coded and managed as listed or

characteristically hazardous waste. The

listed wastes typically carried a code for

solvent wastes (F001 through F005), and

characteristic wastes usually exhibited

the characteristic of ignitability or

toxicity. Based on available data from

the survey, we believe that listed or

characteristically hazardous waste are

being properly managed under RCRA.

The data supplied voluntarily by survey

respondents that we have on constituent

concentrations in wastes classified as

nonhazardous show that the

concentrations of TC constituents are

well below the TC levels. By narrowing

the scope of our analysis to include only

nonhazardous wastes, we were able to

concentrate risk assessment and

subsequent listing decisions on the

wastes that may not already be managed

in a way that adequately protects or

minimizes threats to human health and

the environment. However, this

proposed listing would apply to any

paint manufacturing waste generated by

the paint manufacturers from tank and

equipment cleaning operations that use

solvents, water and/or caustic; emission

control dust; waste treatment sludges

and off-specification production waste

regardless of how the waste has been or

is currently being managed.

TABLE III.D–1.—PAINT MANUFACTURING WASTES GENERATED IN 1998

Weighted waste quantities

(metric tons)

Paint manufacturing waste category

Solvent

cleaning

waste

Water and/

or caustic

cleaning

waste

Wastewater

treatment

sludge

Emission

control dust/

sludges

Off-specification

product

Total

Hazardous ........................................................................ 18507 1047 0 39 3029 22622

Nonhazardous .................................................................. 39 34098 1490 1972 1948 39547

Hazardous and Nonhazardous ........................................ 18546 35145 1490 2011 4977 62169

10076 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

TABLE III.D–2.—NONHAZARDOUS

PAINT MANUFACTURING WASTE LIQUIDS AND SOLIDS GENERATED IN

1998

Weighted

waste

quantity

(metric tons)

Nonhazardous Waste Liquids:

Solvent Cleaning Liquid ........ 4

Washwater Cleaning Liquid .. 31,036

Caustic Cleaning Liquid ........ 66

Total Nonhazardous Liquids ................................ 31,106

Nonhazardous Waste Solids:

Solvent Cleaning Sludge ...... 35

Washwater Cleaning Sludge 2990

Caustic Cleaning Sludge ...... 6

Wastewater Treatment

Sludge ............................... 1490

Emission Control Dust .......... 1972

Emission Control Sludge ...... 0

Off-Specification Product ...... 1948

Total Nonhazardous Waste

Solids ............................. 8441

2. Management Scenarios Currently

Used at Paint Facilities and Our

Selection of Waste Management

Scenarios for Risk Assessment Modeling

This section summarizes our findings

and conclusions concerning current

paint manufacturing practices for

nonhazardous waste management; the

plausible waste management scenarios

that we chose to model for the risk

assessment; and why we did not model

certain management practices. We also

explain how we selected survey data

from waste types and quantities going to

specific management practices for risk

modeling parameters. This entire

section presents weighted survey data

(See Section II.H(e)), unless otherwise

noted. We believe that the weighted

data that is derived from the responses

of the estimated 566 paint

manufacturing facilities most closely

represents the distribution of actual

paint facility waste quantities managed

at individual waste management units at

the 884 facilities in the sampling

population, which we assume are

representative of the universe of affected

paint manufacturers. Table III.D–2

summarizes non-hazardous waste

liquids and solids generation.

We chose to model four waste

management scenarios based upon our

review of the current waste handling

practices reported in the survey and the

plausibility that these scenarios

represent actual practices that are used

or could be used by the paint industry

for disposal of paint manufacturing

wastes. The scenarios that we chose are

waste solids disposed in industrial

nonhazardous waste landfills; waste

liquids stored and treated in off-site

tanks at centralized wastewater

treatment facilities (CWTs) prior to

discharge to a POTW or under a NPDES

permit; waste liquids disposed in

surface impoundments at CWTs; and,

waste liquids stored and treated in tanks

on-site at paint manufacturing facilities

prior to discharge to a POTW or under

a NPDES permit. The general criteria for

selection of plausible waste

management scenarios and the rationale

for choosing each of these four scenarios

is described in this section.

a. Plausible Waste Management

Selection Criteria and Modeling

Considerations. Our regulations at

§ 261.11(a)(3)(vii) require us to consider

the risk associated with ‘‘the plausible

types of improper management to which

the waste could be subjected’’ because

exposures to wastes (and therefore the

risks involved) will vary by waste

management practice. The choice of

which ‘‘plausible management

scenario’’ (or scenarios) to use in a

listing determination depends on a

combination of factors which are

discussed in general terms in our policy

statement on hazardous waste listing

determinations contained in the

proposed Dyes and Pigments Listing

Determination (59 FR 66072, December

22, 1994). We have applied this policy

in several previous listings and, with

some specific modifications that reflect

unique characteristics of the paint

industry, believe it is appropriate to

apply it here.

Our approach to selecting waste

management scenarios to model for risk

analysis is to examine current industry

management practices; assess whether

or not other practices are available to

the industry; and to decide what the

industry would reasonably be expected

to use. There are common waste

management practices, such as

landfilling, which we generally presume

may be plausible for solid wastes and

which we will evaluate for potential

risk. There are other practices which are

less common, such as land treatment,

where we consider them plausible only

where the disposal methods have been

reported to be practiced. Where a

practice is actually reported in use, that

practice is generally considered

‘‘plausible’’ and may be considered for

potential risk. In some situations,

potential trends in waste management

for a specific industry suggest we will

need to project ‘‘plausible’’ management

even if it is not currently in use in order

to be protective of potential changes in

management and therefore in potential

risk. We then evaluate which of these

current or projected management

practices for each waste stream are

likely to pose significant risk based on

an assessment of exposure pathways of

concern associated with those practices.

To model plausible waste

management practices in the paint

industry, we used the individual waste

quantities going from the surveyed

facilities to a particular type of

management unit. This data was used in

a national risk modeling analysis to

capture the range of waste quantities

from all facilities in the sampling

population sent to a particular type of

waste management unit (the weighted

waste quantity distribution). Each waste

quantity in the weighted distribution

has a weighting factor that represents

the number of facilities in the total

sampling population that send a

particular waste to a particular waste

management unit. We do not analyze

the total quantity of wastes (i.e., the

total universe waste generation data)

going into a single waste management

unit because this scenario never occurs.

As discussed later in this section, when

we found evidence that multiple waste

streams from a single facility or wastes

from more than one facility are sent to

the same management unit, we added

those quantities to ensure that we

accurately reflect the individual and

combined quantities of paint

manufacturing wastes that are sent to a

single management unit. (Section

III.D.2(c), below explains the

methodology we used to compile the

survey data for input to the risk

assessment models.)

EPA estimates that in 1998, the 884

facilities in the sampling population

generated 8,441 metric tons of

nonhazardous waste solids and 31,106

metric tons of nonhazardous waste

liquids. As would be expected, wastes

generated from paint production batches

are also generated in batches rather than

in a continuous stream. Generally, the

waste quantities associated with each

batch are relatively small, so that these

smaller quantities are aggregated and

added into containers or tanks as each

new batch is produced. Liquid wastes

are added into liquid wastes and solid

wastes are added into solid wastes, so

that a variety of waste types (for

example sludges from tank cleaning

operations and wastewater treatment)

may be combined and sent off to one

waste management unit. At the same

time, some waste types are managed

separately, if for example they have

some value for fuel blending, rather

than simply being sent off to land

disposal or wastewater treatment and

discharge. We were able to distinguish

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10077

these management practices from the

survey data.

One final note, before looking at solid

and liquid wastes separately. The total

waste quantities that are accounted for

in all of the management practices that

we discuss are not equivalent to the

total waste generation quantities. We

believe there are several reasons for this.

First, because of the way the survey was

structured, we were not able to obtain

an absolute balanced accounting of

waste generation and waste

management from each facility. Some of

the discrepancy reflects waste

management situations that may span

one year to the next, e.g., when a facility

accumulates waste over a longer time

period before sending it on to disposal.

Second, some wastes (or residuals) may

be accumulated for a time, and then

recycled back into the manufacturing

process instead of being disposed.

Third, there may be some undetected

reporting errors in the database. In any

event, the discrepancy between waste

quantities generated in 1998 and waste

quantities disposed in 1998 is not

significant for risk assessment purposes.

In the risk assessment, we use a

distribution of individual waste

quantities actually sent to management

scenarios as input to the model, not

national total waste quantities. The

distribution of individual waste

quantities would not be significantly

affected by the discrepancy between

wastes volumes generated and waste

volumes disposed.

Before we proceed to the technical

discussion of our rationale for choosing

certain modeling scenarios and

parameters, we will briefly explain why

we chose to structure these discussions

as they are presented in this preamble.

We estimate that the 884 facilities in the

sampling population disposed of 44,278

metric tons of nonhazardous waste

solids and waste liquids in 1998 as

shown in Tables III.D–3 and III.D–4.

These tables show that the disposal

destinations, as would be expected, are

different for the waste solids and the

waste liquids. The same four waste

solids that comprised the majority of the

nonhazardous waste solids generated in

1998 have very similar waste

management patterns. In contrast, the

largest quantity of waste liquid

generated in 1998, washwater cleaning

liquid is managed differently from the

solids and almost entirely through

discharge to off-site public and private

wastewater treatment facilities. For

these reasons, we split our analysis of

the waste solids and waste liquids. It

was clear that risk modeling for these

two types of wastes would differ,

therefore it seemed reasonable to

analyze the waste management patterns

for them separately.

b. Selection of Waste Management

Scenarios for Risk Assessment Modeling

of Nonhazardous Paint Manufacturing

Waste Solids. Table III.D–3 lists the

estimated weighted quantities of each

type of nonhazardous waste solid going

to each management practice for the 884

facilities in the sampling population.

The total amount of waste solids

disposed in 1998 was 8,226 metric tons

(weighted). Of these 8,226 metric tons,

8,152 metric tons is made of the same

four waste solids that comprised the

majority of solid waste generated in

1998: off-specification product,

emission control dust, washwater

cleaning sludge and wastewater

treatment sludge. We estimate that the

major portion of these four solid waste

streams, 6,926 metric tons, is disposed

in Subtitle D municipal and industrial

landfills (nonhazardous landfills). These

6,926 metric tons includes 942 metric

tons of off-specification product, 1,947

metric tons of the emission control dust,

1,440 metric tons of wastewater

treatment sludge and 2,597 metric tons

of washwater cleaning sludge disposed

in 1998. In addition, 35 metric tons of

solvent sludge goes to nonhazardous

landfills. The remaining 1,300 metric

tons of waste solids disposed in 1998 go

to Subtitle C landfills, fuel blenders,

CWTs, waste piles, incinerators, cement

kilns, boilers and industrial furnaces

and ‘‘other’’ management units. Note

that tanks and containers are

intermediate storage and treatment units

and their waste quantities are not

counted in the total 8226 metric tons

disposed in 1998.

TABLE III.D–3.—NONHAZARDOUS WASTE SOLIDS MANAGEMENT

Waste mgt. units

Waste solids types (weighted quantities in metric tons)

Off-spec.

product

Emission

control dust

Emission

control

sludge

Wastewater

treatment

sludge

Washwater

cleaning

sludge

Caustic

cleaning

sludge

Solvent

cleaning

sludge

Subtitle D/MLF ......................................... 942 1947 0 1440 2597 0 35

Subtitle C ................................................. 80 9 0 0 352 0 0

On-site S. tank ......................................... 53 0 0 0 1814 0 0

Off-site S. tank ......................................... 0 0 0 0 0 0 0

On-site Trt. tank ....................................... 0 1066 0 487 0 0 0

Fuel Blending ........................................... 352 0 0 21 4 0 0

POTW ...................................................... 0 0 0 0 0 0 0

WWTF ...................................................... 48 0 0 5 000

NPDES ..................................................... 0 0 0 0 0 0 0

INC ........................................................... 72 5 0 24 50 6 0

Cement Kiln ............................................. 56 000000

BIF ............................................................ 3 000000

Container .................................................. 2023 3052 0 992 1154 6 2

Waste Pile ................................................ 0 0 0 0 0 0 33

Other ........................................................ 133 11 0 0 1 0 0

Totals** ............................................. 1686 1972 0 1490 3004 6 68

**Total of each waste solid disposed in 1998 includes all disposal types except tanks and containers. The tanks and containers are considered

intermediate handling, not final disposal destination steps.

Note: The bolded numbers within the table are those that were used to derive the totals for each column.

MLF=Municipal Landfill

On-site S. tank=On-site Storage tank

Off-site S. tank=Off-site Storage tank

On-site Trt. Tank=On-site Treatment tank

NPDES=National Pollutant Discharge Elimination System

INC=incinerator

10078 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

11While other products of incomplete

combustion may present possible risks, it is

difficult for us to assess this potential for the

chemicals of concern, especially for the likely

scenario of a small volume of paint manufacturing

wastes being treated with other much larger

volumes of organic wastes.

BIF=Boiler & Industrial Furnace

POTW=Publicly Owned Treatment Works

WWTF=Wastewater Treatment Facility

Based on this information, we chose

to model disposal of waste solids in

industrial nonhazardous landfills. This

is a common disposal practice for a

large portion of the waste solids

disposed in 1998. There are only two

differences in modeling assumptions for

industrial nonhazardous landfills as

compared to municipal landfills.

Industrial nonhazardous landfills are

slightly smaller than municipal landfills

so the quantities of paint manufacturing

waste modeled in the industrial landfill

are a relatively larger proportion of the

total waste quantities going into the

unit. Also, industrial nonhazardous

landfills are not assumed to have daily

cover. Both of these add to the

conservatism of the protective

constituent levels predicted by the risk

assessment. For our inputs to the risk

modeling, we used quantities of offspecification product, emission control

dust, wastewater treatment sludge,

washwater cleaning sludge and solvent

sludge sent to nonhazardous landfills.

We did not include the small volume of

caustic cleaning sludge because they

were incinerated and they were not

disposed in nonhazardous landfills.

Emission control sludge was not

included either because it was not

generated by any of the survey

respondents in 1998. The risk

assessment in Section III.E, contains

more details about the methodology of

the risk modeling process.

At the outset of our analysis of the

survey data, we did not believe that a

landfill was a logical disposal

destination for off-specification product.

We further investigated the disposal

information for off-specification product

and decided that it should be in our

waste solids quantity distribution for

risk assessment. We contacted the

eleven facilities that reported generating

off-specification paint. Nine of the

eleven facilities stated that they sent

only dried paint wastes to

nonhazardous landfills. The tenth

facility reported sending 7.5 metric tons

of mostly dried paint and paint flakes

with small amounts of liquid paint

wastes to landfills. The eleventh facility

reported sending 14.7 metric tons of offspecification product of unknown

physical characteristics to

nonhazardous landfills in 1998. We

chose to model off-specification product

with waste solids sent to nonhazardous

landfills because large quantities (920

out of 942 metric tons) of this waste are

in dry form when sent to nonhazardous

landfills. Also, Municipal Solid Waste

landfills have a prohibition on disposal

of liquids and we believe that the

majority of commercial industrial

landfills do also (according to a 1995

EPA report ‘‘State Requirements for

Industrial Non-Hazardous Waste

Management Facilities,’’ 28 states

restrict the placement of liquids in

industrial nonhazardous waste

landfills).

The survey data contained

information about four types of waste

management practices for waste solids

that we chose not to model. The first of

these is treatment of solvent sludge in

a waste pile. One facility reported using

a waste pile as an intermediate waste

management step for 33 metric tons of

solvent sludge. Based on further

discussion with the facility contact, we

determined that this waste was a free

flowing slurry that was piled on

cardboard boxes inside a containment

building to dry and then disposed in a

nonhazardous landfill. We chose not to

model this scenario because the waste is

managed in a closed facility. It is not

open to airborne wind transport and

does not involve placement directly on

the land. The remaining solidified waste

is disposed in a nonhazardous landfill.

Another type of waste management

that we did not model is combustion in

incinerators, cement kilns, and boilers

and industrial furnaces. In past listing

determinations where we have

attempted to assess risks from

incineration, we found that the potential

risks from the release of constituents

through incineration would be at least

several orders of magnitude below

potential air risks from releases from

tanks or impoundments (see listing

determination for solvent wastes at 63

FR 64371, November 19, 1998). Further,

it is difficult to model what goes into

combustion units in relation to the

residual constituents that are released

from the combustion unit either in ash

or air.11

We also chose not to model solid

wastes sent to fuel blenders. All of the

fuel blending facilities reported in the

survey were located at Subtitle C

permitted facilities. Since these fuel

blenders receiving paint manufacturing

waste solids are RCRA permitted, they

must comply with protective regulations

regarding releases from RCRA units and

from the RCRA facility. Finally, for

these units it is also difficult to model

what goes into the unit in relation to the

residual constituents that are released

from the unit to the air.

One last category of management unit

that we chose not to model is the

‘‘other’’ category. For the waste solids

reported in this survey, ‘‘other’’

encompassed a variety of waste

management types. The total 145 metric

tons of waste solids handled in ‘‘other’’

management units can be divided into

four categories: Wastes that are disposed

off-site at waste treatment facilities,

wastes that are reworked back into the

paint process, wastes that are sold to

other companies and wastes sent for

precious metal recovery. Sixty-nine (69)

metric tons of off-specification product

and emission control dust were sent to

off-site waste treatment and disposal

facilities. Nine metric tons were treated

on-site and then sent to a Subtitle C

landfill. Fifty-nine (59) metric tons of

off-specification product and emission

control dust were reworked back into

the paint process on-site. Small

quantities of off-specification product

and emission control dust totaling 3.5

metric tons were sold to other

companies who were not concerned

about the quality of the paint

manufacturing waste for the

manufacture of a new product or the

resale of a low grade paint. Less than

one metric ton (0.7) of emission control

dust was sent to an off-site precious

metal recovery facility for recovery of

the silver in the paint manufacturing

waste. Three metric tons of waste solids

out of the 145 metric tons is emission

control dust that was reported to be

released to the air from pollution

control devices that were not functional.

The remaining one metric ton of

washwater cleaning sludge was sent to

an off-site waste treatment facility. We

chose not to model any of these

scenarios because the scenarios we did

decide to evaluate were likely to be the

riskier scenarios and over half of these

wastes going to ‘‘other’’ units were

either being reworked into the paint

process or used for manufacture of other

products.

The paint manufacturing industry

recycles several of its waste streams.

One of these streams is air emissions

control dust. Sometimes this material is

used on-site in the formulation of lowgrade paint, or sent off-site to other

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10079

paint manufacturers for the same

purpose (in neither case is reclamation

involved). In either case, the dust would

not be considered a solid waste because

it is used or reused as an ingredient in

an industrial process to make a product

pursuant to 40 CFR 261.2(e)(I)). The

dust contains valuable raw materials

that are required to make paint

products. We have therefore not

included these recycled dusts when

modeling our waste disposal scenarios.

The Agency also notes that this practice

appears to be a form of legitimate

recycling because paint (even low-grade

paint) must always meet certain

specifications to be usable. Recycled

dust would only be added if it served as

a required ingredient in the paint.

Another method of recycling air

pollution control dust involves sending

the materials off-site for recovery of

precious metals (e.g., gold, silver,

platinum). These materials would be

considered solid and hazardous wastes

if they exhibit the toxicity characteristic

for metals, or if they exceeded the

concentration levels in today’s proposed

listing. Under those circumstances, they

would be subject to the reduced

regulatory requirements of 40 CFR

266.70. However, EPA has chosen not to

include these materials in our waste

disposal scenarios because we believe

that their inherent economic value

would ensure careful handling, thereby

greatly minimizing the risk of releases.

See the 1985 rationale for the special

regulatory regime for precious metal

reclamation (50 FR614, 648–49 (January

4, 1985)).

c. Selection of Waste Management

Scenarios for Risk Assessment Modeling

of Nonhazardous Paint Manufacturing

Waste Liquids. EPA estimates that the

884 paint manufacturing facilities in the

sampling population disposed of 36,052

metric tons (weighted) of waste liquids

in 1998. Over 99% of this amount is

washwater cleaning waste. A very small

amount of solvent cleaning and caustic

cleaning liquids make up the remaining

69 metric tons. Table III.D–4 shows how

the 36,052 metric tons of nonhazardous

waste liquids were disposed in 1998.

The predominant destinations for

washwater cleaning liquids are POTWs

and CWTs. About 27,625 metric tons of

washwater cleaning liquid go to POTWs

and 6407 metric tons go to CWTs. Some

of the 27,625 metric tons of washwater

cleaning liquid is directly discharged to

POTWs, but a significant portion is

stored and treated on-site prior to being

sent to the POTW. Fourteen thousand

five hundred thirty (14,530) metric tons

of washwater cleaning liquids are

managed in on-site storage tanks and

7487 metric tons of washwater cleaning

liquids are managed in on-site treatment

tanks. These tanks are the intermediate

storage and treatment units for almost

all of the washwater cleaning liquids

going to POTWs, CWTs and the

remaining waste management categories

where these liquids are disposed. The

survey results indicated that about

17,000 metric tons of washwater

cleaning liquids are directly discharged

by paint facilities to POTWs. The

remainder of the washwater cleaning

liquids (10,000 metric tons) that are sent

to POTWs are stored or treated in onsite tanks prior to discharge to the

POTW. One facility directly discharges

76 metric tons of washwater cleaning

liquid under a NPDES permit. These

NPDES and POTW point source

discharges that are subject to regulation

under Section 402 of the Clean Water

Act are excluded from the RCRA

statutory definition of solid waste and

therefore are not subject to RCRA

regulation. See 42 U.S.C. 6903(2) and 40

CFR 261.4(a)2. However, while the

liquids are being collected, treated or

stored they are subject to RCRA

regulation. This also applies to any

sludges derived from the storage or

treatment of the liquids.

Another destination for washwater

cleaning liquid is offsite storage and

treatment tanks at CWTs. About 6407

metric tons of washwater is sent to

CWTs for treatment and then discharged

to POTWs or under a NPDES permit.

The volumes of washwater liquid are

probably stored and treated in offsite

tanks as our survey data showed that

they are onsite.

‘‘Other’’ management units receive

1309 metric tons of washwater cleaning

liquids. Five hundred sixty-three (563)

metric tons of washwater cleaning

liquid goes to fuel blending units,

incinerators and cement kilns. A very

small amount of washwater cleaning

liquid, 3 metric tons was sent to

nonhazardous landfills in 1998.

The other two waste liquid streams,

solvent cleaning and caustic cleaning

liquid are disposed at fuel blending

facilities and at POTWs, respectively.

POTWs received about 32 metric tons of

caustic cleaning liquids and fuel

blenders received 4 metric tons of

solvent cleaning liquid in 1998. Sixtyone (61) metric tons of caustic cleaning

liquid is stored or treated in on-site

tanks and an additional 33 metric tons

is managed in ‘‘other’’ units.

Based on these facts, we chose several

modeling scenarios. The first of these

was the off-site storage of washwater

cleaning liquids in uncovered tanks at

CWTs. About 18% of the yearly total of

washwater cleaning liquid disposed

goes to CWTs. Another scenario we

modeled was the onsite treatment of

washwater in tanks prior to discharge to

a POTW or under a NPDES permit. We

also chose to model the on-site

treatment of washwater cleaning liquids

in tanks because a significant amount of

liquids are handled in on-site tanks.

This modeling scenario should account

for any exposure to washwater cleaning

liquids and sludges being treated in onsite tanks that are subsequently

disposed through a POTW or NPDES

discharge.

We also chose to model waste liquids

managed in an unlined surface

impoundment because we found one

lined surface impoundment at a CWT

and we cannot, at this time, rule out the

possibility that some quantities of liquid

paint manufacturing wastes may be

managed in an unlined impoundment

which would present greater risks of

release to the environment. Survey

respondents did not report any on-site

impoundments for management of

liquid wastes. However, because we

know that waste management in surface

impoundments, and particularly in

unlined impoundments, could pose

significant risk, we chose to look for

other plausible scenarios that might

involve impoundments.

TABLE III.D–4.—NONHAZARDOUS WASTE LIQUIDS MANAGEMENT

Waste mgt. units

Waste Liquid types

(weighted quantities in metric tons)

Washwater

cleaning

liquid

Caustic

cleaning

liquid

Solvent

cleaning

liquid

Subtitle D/MLF ......................................................................................................................................... 3 0 0

Subtitle C ................................................................................................................................................. 0 0 0

On-site S. tank ......................................................................................................................................... 14530 33 0

10080 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

TABLE III.D–4.—NONHAZARDOUS WASTE LIQUIDS MANAGEMENT—Continued

Waste mgt. units

Waste Liquid types

(weighted quantities in metric tons)

Washwater

cleaning

liquid

Caustic

cleaning

liquid

Solvent

cleaning

liquid

Off-site S. tank ......................................................................................................................................... 1 0 0

On-site Trt. tank ....................................................................................................................................... 7487 28 0

Fuel Blending ........................................................................................................................................... 455 0 4

POTW ...................................................................................................................................................... 27625 32 0

WWTF ...................................................................................................................................................... 6407 0 0

NPDES ..................................................................................................................................................... 76 0 0

INC ........................................................................................................................................................... 56 0 0

Cement Kiln ............................................................................................................................................. 52 0 0

BIF ........................................................................................................................................................... 0 0 0

Container ................................................................................................................................................. 1517 0 4

Waste Pile ................................................................................................................................................ 0 0 0

Other ........................................................................................................................................................ 1309 33 0

Totals** ............................................................................................................................................. 35983 65 4

** Totals for each column are derived from addition of all the bolded numbers in each column. This total includes all disposal types except

tanks and containers, these are considered intermediate handling, not final disposal destination steps.

Note: The bolded numbers within the table represent the quantities of disposed waste that were summed to calculate the total waste disposed

for each waste type.

MLF=Municipal Landfill

On-site S. tank=On-site Storage tank

Off-site S. tank=Off-site Storage tank

On-site Trt. Tank=On-site Treatment tank

NPDES=National Pollution Discharge Elimination System

INC=incinerator

BIF= Boiler & Industrial Furnace

POTW=Publicly Owned Treatment Works

WWTF=Wastewater Treatment Facility

In other listing determinations, we

have found management in surface

impoundments for a number of waste

streams, although on-site

impoundments are more often

associated with industries managing

larger quantities of liquids. As discussed

above, a number of facilities send their

liquid waste to CWTs. These are the

facilities that we believe could plausibly

be managing wastes in surface

impoundments. We contacted nine

CWTs identified by survey respondents

as receiving their wastes to determine

whether any of them employ

impoundments as part of their treatment

processes. In fact, we found one facility

that uses a double-lined impoundment.

Twenty-one survey respondents

indicated that they are sending liquid

waste to facilities they identified as

wastewater treatment facilities.

Considering the universe of estimated

972 paint manufacturers, we estimate

that 4 or 5 other impoundments may be

receiving paint manufacturing wastes

(see the listing background document

for this analysis). It may be reasonable

to assume that management of paint

manufacturing wastes in an unlined

surface impoundment may occur.

Therefore, we assumed this is a

plausible management scenario that we

modeled for our risk assessment.

Section IV. D (proposed listing

determination) contains additional

discussion concerning uncertainties

associated with this scenario and

discussion of whether this is likely to be

sufficiently rare that we should consider

an alternative approach.

Finally, we chose to model

management of washwaters in on-site,

uncovered treatment tanks. Eight survey

respondents reported that they had

uncovered on-site storage and treatment

tanks. Volatile emissions from the

hazardous constituents contained in the

washwater cleaning liquids could be

released into the air from these

uncovered tanks. Therefore we also

chose to model management of waste

liquids in uncovered on-site treatment

tanks because treatment tanks represent

a more conservative modeling scenario

(higher air emissions from aerated

tanks) than storage tanks. We modeled

the scenario of waste liquids stored in

uncovered storage tanks. We used the

weighted quantities of waste liquids

(22,078 metric tons) reported in the

survey as being managed in on-site

storage and treatment tanks.

There were five types of waste liquid

management that we did not choose to

model. One of these management

scenarios is the disposal of washwater

cleaning liquid in nonhazardous

landfills. We contacted the facilities that

reported this practice and found that, in

both cases, the washwater cleaning

liquid sent to the landfills was a liquid/

solids mixture. One facility reported

that the mixture was filter pressed at the

landfill, the water portion was

discharged to a POTW and the

remaining sludges were dried and

disposed in a nonhazardous landfill.

The other facility reported that the

liquid portion was incinerated and the

solids placed into a nonhazardous

landfill. These scenarios are not,

therefore placement of liquids in a

landfill. The next type of waste liquids

management that we did not model is

the direct discharge of washwater

cleaning liquids to a POTW. RCRA

regulation of waste liquids that are

stored or treated in tanks prior to

discharge to a POTW or under a NPDES

permit is excluded under 40 CFR

261.4(a)(2), at the permitted discharge

point for the facility. The on-site

storage, collection and treatment of

liquids and sludges generated from

waste liquids are however, subject to

RCRA regulation. Another management

type that was not modeled is the

combustion of washwater cleaning

liquids and caustic cleaning liquids in

incinerators and cement kilns or via fuel

blending. In the previous section on

waste solids we explain the Agency’s

rationale for not modeling combustion

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10081

or fuel blending. That rationale applies

equally to waste liquids.

The categories of ‘‘other’’ units

reported for waste liquids that we

considered but did not select for

modeling are: 541 metric tons of

washwater cleaning liquids reworked

back into the paint process; 570 metric

tons of washwater cleaning liquids

treated on-site in tanks and discharged

to POTW and NPDES point sources; 51

metric tons of washwater and caustic

cleaning liquids stabilized on-site and

sent to Subtitle C landfills and 179

metric tons of washwater cleaning

liquids sent to on-site and off-site

treatment units. The washwater

cleaning liquids reworked back into the

paint process may not be in the scope

of this listing. However, our modeling of

uncovered on-site treatment tanks does

estimate the risks from any of these

washwater liquids that are within the

scope of the listing. The washwater

cleaning liquids reported under ‘‘other’’

that are discharged to a POTW should

have been reported as going to POTWs

and included in that quantity of

washwater cleaning liquids. As

explained earlier, the on-site treatment

or storage of any liquids being

discharged to a POTW is covered by our

risk modeling of on-site treatment tanks.

The washwater and caustic cleaning

liquids that are treated on-site and sent

to a Subtitle C landfill are also covered

by our on-site treatment tank modeling.

The last group of ‘‘other’’ units (the 179

metric tons of waste liquids) consists of

23 metric tons of washwater cleaning

liquid sent for off-site treatment and

disposal; and 156 metric tons of on-site

treatment conducted in tank type units.

The estimate of any risks posed from the

treatment of washwater cleaning liquids

in these units should be covered by our

risk modeling of on-site treatment in

tanks of washwater cleaning liquids.

d. Survey Data as Input to Modeling

Parameters. To conduct a risk

assessment for these wastes, we needed

to assemble the survey data associated

with disposal of waste solids and waste

liquids into our chosen waste

management units of concern: industrial

nonhazardous landfills, on-site tanks,

off-site tanks and surface

impoundments. The specific data we

used were the quantities of waste solids

and waste liquids sent by each facility

to each of our four management units of

concern. We used these data as input to

the modeling parameters in our risk

assessment. The risk assessment

estimated the concentration of

individual constituents that could be

present in each waste and remain

protective of human health and the

environment. These risk based

constituent concentration levels in the

waste streams are the levels that can be

managed in the waste streams and

remain below a target cancer risk level

of 1 X 10¥5 excess lifetime cancer risk

for individuals exposed to carcinogens

in the waste streams and a target hazard

quotient (HQ) of 1.0 for individuals

exposed to constituents in the waste

streams that produce noncancer health

effects.

We also needed to capture the

distribution of waste quantities going to

individual waste management units.

Once we determined that we could

represent paint manufacturing wastes as

solids and liquids disposed in

nonhazardous landfills, on-site

treatment tanks, off-site wastewater

treatment tanks and surface

impoundments, we then developed a

methodology to assemble the waste

quantity distributions for solids and

liquids sent from each facility in the

sampling population to each of these

four types of waste management units.

We used the individual weighted

quantities of waste solids sent to

nonhazardous landfills to compile the

waste solids distribution and the

individual weighted quantities of waste

liquids sent to tanks and surface

impoundments at offsite wastewater

treatment facilities for the waste liquids

distribution. We considered several

factors in developing the waste quantity

distributions including the total

quantities of each individual type of

waste stream reported by the surveyed

facilities, whether any facilities that

generate these wastes may produce

quantities of waste conditionally

exempted under EPA regulations for

small quantity generators and whether

any of the surveyed facilities reported

waste co-management scenarios.

First, we identified conditionally

exempt small quantity generators by

combining the entire hazardous and

nonhazardous paint manufacturing

waste solid and liquid quantities for all

waste streams within the scope of this

listing generated by each surveyed

facility. We compared these quantities

of waste to the amount specified in

§ 261.5 (a), the Conditionally Exempt

Small Quantity Generator (CESQG)

exclusion criteria. This existing

regulation excludes those facilities from

Subtitle C that generate no more than

100 kilograms per month of hazardous

waste or 1.2 metric tons per year. We

separated the survey data from the

CESQG facilities because under the

Federal RCRA regulations, they could

continue to send their small waste

quantities to nonhazardous disposal

facilities. Including these very small

waste quantities in our risk modeling

could inappropriately bias the modeling

results toward the higher protective

constituent concentrations. Therefore, it

would be inappropriate to include these

small volumes in the risk modeling to

develop the regulatory limits, since

these wastes would be excluded from

the regulation. Also, including these

small volumes in the modeling would

bias the results towards higher

protective limits because, all other

things being equal, small volumes result

in lower estimated risk and therefore

higher protective levels. Further, even if

all the CESQG facilities’ wastes are

hazardous, they could continue to

manage them in a municipal solid waste

landfill, in accordance with appropriate

individual state requirements. Twelve

facilities reported that they generated

less than 1200 kilograms per year of

hazardous and nonhazardous wastes

combined. We did not use the data for

these 12 for any of the risk assessment

modeling because the generators of

these conditionally exempt quantities

could continue to manage their wastes

as they are currently managing them

even if the wastes were listed.

Next, we compiled separate waste

quantity distributions for waste solids

and waste liquids. We also accounted

for co-management scenarios as

reported in the survey responses. Comanagement scenarios are: (1) Waste

solids or waste liquids generated at a

single paint facility that are disposed at

the same off-site management unit, and

(2) waste solids or waste liquids from

different paint facilities that are sent to

the same off-site waste management

unit. Each of these combinations results

in larger paint manufacturing waste

quantities being associated with

disposal at particular waste

management units. We combined these

quantities for 14 waste solid comanagement scenarios.

At this point, the waste solids

quantity distribution consisted of

quantities of nonhazardous off

specification product waste,

nonhazardous emission control dust,

nonhazardous water/caustic sludge,

nonhazardous wastewater treatment

sludge and nonhazardous solvent sludge

sent to nonhazardous landfills. All

waste solid quantities from any of the

surveyed facilities that did not meet the

conditionally exempt small quantity

generator exclusion were included. The

waste solids quantity distribution had

57 entries for single and co-managed

waste streams. In addition to this

quantity distribution that combined all

the types of waste solids (combined

waste solids), a second quantity

distribution was constructed that

contained only nonhazardous emission

10082 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

control dust sent to nonhazardous

landfills. The emission control dust

only distribution was constructed

similarly to the manner in which the

combined solids quantity distribution

was constructed. It did not include the

conditionally exempt small quantity

generator facilities data and comanagement of wastes was considered.

The emission control dust only

distribution was input into the risk

model with an accompanying low

moisture content to represent a worstcase scenario for wind blown materials

that could be released from the

nonhazardous landfill.

We created three separate waste

liquid distributions in the same manner

as the solids distributions to correspond

to the modeling scenarios for liquids.

Initially, any CESQG facilities that

generated waste liquids were eliminated

from consideration. The first waste

liquid distribution contained washwater

cleaning liquid quantities sent off-site to

a CWT. We combined waste liquid

quantities where we found comanagement scenarios. We used this

quantity distribution to evaluate

washwater cleaning liquid stored in

uncovered off-site tanks at CWTs. Next,

the surface impoundment waste liquid

quantity distribution was exactly the

same as the distribution of all quantities

of washwater cleaning liquids that sent

to off-site CWTs. Because surface

impoundments, when they exist, are a

part of the CWT’s treatment process, we

assumed that quantities of waste liquids

sent off-site to CWTs could be treated in

unlined surface impoundments as well

as in tanks. The third liquids quantity

distribution consists of the largest

washwater cleaning quantity reported in

the survey. This single quantity was

used to conduct a conservative risk

assessment screening for exposure to

emissions from waste liquids in

uncovered on-site treatment tanks.

To summarize, we assembled five

separate quantity distributions using the

survey response information.

• One distribution consisted of all the

survey quantities of nonhazardous combined

waste solids from: nonhazardous solvent

cleaning sludge, nonhazardous washwater

cleaning sludge, nonhazardous waste water

treatment sludge, nonhazardous emission

control dust and nonhazardous off

specification product. This distribution

called, ‘‘combined solids’’ was used for risk

analysis as a sludge-like material in a

nonhazardous landfill.

• The second distribution consisted of all

nonhazardous emission control dust

quantities only. This distribution was used

for risk assessment modeling as a dust-like

material going to a landfill.

• The third distribution was a liquids

distribution that consisted of all

nonhazardous liquid quantities of

nonhazardous washwater cleaning liquid that

were disposed in off-site tanks at CWTs. This

liquids distribution was used for risk

modeling of waste liquids being sent to

uncovered off-site treatment tanks.

• The fourth quantity distribution was

exactly the same as the one above, but the

target management unit was a surface

impoundment instead of a tank.

• The last quantity used for modeling was

a single quantity, the highest washwater

cleaning liquid quantity managed in

uncovered on-site treatment tanks as reported

in the survey. This was used to evaluate risks

from waste liquids managed in on-site

storage and treatment tanks.

Each of these quantity distributions

was used in the process of modeling the

risk to human and environmental

receptors from the disposal of waste

solids and liquids in nonhazardous

landfills, tanks and surface

impoundments. The next section

describes the risk assessment approach

and process in detail.

E. What Risk Assessment Approach Did

EPA Use to Determine Allowable

Constituent Waste Concentrations?

1. Which Factors Did EPA Incorporate

Into Its Quantitative Risk Assessment?

In making listing determinations, the

Agency considers the listing criteria

required in 40 CFR 261.11. The criteria

provided in 40 CFR 261.11 include

eleven factors for determining

‘‘substantial present or potential hazard

to human health and the environment.’’

Nine of these factors, as described

generally below, are directly

incorporated into EPA’s completion of a

risk assessment for the waste streams of

concern:

• Toxicity (§ 261.11(a)(3)(i)) is considered

in developing the health benchmarks used in

the risk assessment modeling.

• Constituent concentrations that pose a

hazard to human health are determined in

the risk assessment (§ 261.11(a)(3)(ii)).

• Waste volumes (§ 261.11(a) (3)(viii)) are

used to define the initial conditions for the

risk evaluation.

• Potential to migrate, persistence,

degradation, and bioaccumulation of the

hazardous constituents and any degradation

products (sections 261(a)(3)(iii),

261.11(a)(3)(iv), 261.11(a)(3)(v), and

261.11(a)(3)(vi)) are all considered in the

design of the fate and transport models used

to determine the concentrations of the

contaminants to which individuals are

exposed.

• Finally, we consider two of the

remaining factors, plausible mismanagement

as discussed in the previous section and

other regulatory actions as discussed in

Section IV on the proposed listing

determinations ((§§ 261.11(a)(3)(vii) and

261.11(a)(3)(x)) in establishing the waste

management scenario(s) modeled in the risk

assessment.

EPA conducted analyses of the risks

posed by the waste streams evaluated

for this listing to determine the

concentrations of constituents that if

found in paint production wastes would

meet the criteria for listing set forth in

40 CFR 261.11(a)(3). This section

discusses the human health risk

analyses and ecological risk screening

analyses EPA conducted to support our

proposed listing determinations for

paint and coatings production wastes.

We consider the risk analyses in

developing our listing decisions for each

of the waste streams. The risk analyses

we describe in this section are presented

in detail in the Risk Assessment

Technical Background Document for

Paint and Coatings Listing

Determination which is located in the

docket for today’s proposed rule.

2. How Did EPA Use Damage Case

Information?

We also considered whether any

damage cases exist that indicate impacts

on human health or the environment

from improper management of the

wastes of concern, which is required

under the listing regulations

(§ 261.11(a)(3)(ix)). Damage incidents

might be useful in not only establishing

whether there was any impact on

human health or the environment from

improper management, but such

incidents might also provide some

information on plausible

mismanagement practices, and on the

potential of the waste constituents to

migrate, persist, or degrade in the

environment. We compiled damage

incidents involving paint production

wastes and paint constituents, including

paints disposed of by non-paint

manufacturing facilities. We found

approximately 21 incidents that appear

to involve the release of constituents

from the management of paint product

wastes either at the site of paint

manufacture, or at off-site facilities. We

also found damage incidents for the

disposal of paint wastes by end-users,

and numerous other possible incidents

for which we did not have adequate

information to determine the type of

facility or the nature of the waste

involved. A report summarizing the

results of this search is in the docket for

today’s rule (Damage Incident

Compendium and Report, July 2000).

A number of the data sources

contained information on potential

problems related to management or use

of paint materials at a variety of sites.

The information of most potential utility

came from the Superfund Public

Information System (SPIS). The SPIS

contains data from the Record of

Decision System (RODS), which

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10083

document remediation actions as sites

on the National Priority List (NPL), and

the Comprehensive Environmental

Response Compensation and Liability

Information System (CERCLIS), which

contains other information on potential

and actual Superfund sites. Information

from other sources proved to be less

useful. For example, a search of the

Right-to-Know network database (RTK)

provided some matches for paint as a

pollutant in the database of civil cases

filed by the Department of Justice on

behalf of EPA, however these included

violations of RCRA permitting, storage,

and reporting requirements, rather than

disposal problems, or violations of the

CAA or CWA. The Defense Technical

Information Center database provided

information on defense installations on

the NPL and slated for closing, however

these appear to be end users, not paint

manufacturers.

EPA believes the damage cases have

limited utility for determining current

plausible mismanagement scenarios.

The vast majority of damage cases

(especially Superfund sites) were from

sites that operated prior to

implementation of the current RCRA

regulations, and generally reflect

management practices that no longer

occur (such as an in ground solvent pit,

buried crushed drums and dumping

liquids in trenches). We believe these

past damage incidents do not represent

current waste management practices by

the paint manufacturing industry. This

is supported by the results from the

3007 Survey, which indicate that

manufacturers are coding and managing

many wastes as hazardous, especially

some of those likely to have the greatest

solvent content. For example, all

facilities that reported solvent cleaning

wastes reported them to be hazardous,

except for one that was sent to fuel

blending. Therefore, we expect that

waste management practices have

changed, since the promulgation of the

RCRA regulations, including the

addition of a number of organics to the

Toxicity Characteristic in 1990 and the

listings for certain waste solvents (F001

to F005) in 1980 (and as revised in

1985).

In most cases, the available damage

incident data rarely indicated the

composition of the paint or paint

manufacturing waste, nor the source of

the waste. Instead, the data depicted the

material or waste in general terms, such

as ‘‘paint,’’ ‘‘paint manufacturing

waste,’’ or ‘‘sludges.’’ Thus, the

databases did not categorize the damage

incidents involving paint manufacturing

wastes into the specific waste categories

of interest (solvent cleaning wastes;

water/caustic cleaning wastes;

wastewater treatment sludge; emission

control dust or sludge; and offspecification production wastes) nor

allow us to determine concentrations

above which paint manufacturing

wastes could pose a hazard. Thus we are

unable to directly attribute

contamination observed from the

mismanagement of paint manufacturing

wastes to those the wastes that are

specifically addressed by this proposed

listing.

Even if historical problems could be

traced to paint materials, they are not

very useful in assessing the potential

risks for paint production wastes as they

are currently generated. The damage

incidents may represent the potential

for the migration, mobility, and

persistence of constituents in paint

manufacturing wastes. The damage

cases do provide some anecdotal

information in support of a conclusion

that some paint manufacturing wastes

may yield environmental contamination

when managed in the ways that lead to

the damage cases. However, because the

wastes in the damage cases may include

wastes now managed as hazardous, and

because the cases may reflect

management scenarios we do not

believe are currently common or

plausible, it is difficult to use them to

reach conclusions as to which of the

wastes under evaluation in today’s

proposal may pose significant risks.

Certainly it is difficult to use damage

cases to ascertain at what concentration

the paint manufacturing wastes under

evaluation may pose such risks. Thus,

while the damage cases supports that

some paint manufacturing wastes may

sometimes pose risks, EPA is relying

upon its quantitative risk assessment in

formulating today’s proposal.

3. Overview of The Risk Assessment

For a concentration-based listing, EPA

is proposing to calculate the

concentration levels, or ‘‘listing levels’’

in the waste at or above which a waste

would be considered hazardous. Risk

assessment is used to identify the

concentrations of individual

constituents that can be present in each

waste stream and remain below a

specified level of risk to both humans

and the environment.

To establish these listing levels, the

Agency (1) Selected constituents of

potential concern in waste, (2) evaluated

plausible waste management scenarios,

(3) calculated exposure concentrations

by modeling the release and transport of

the constituents from the waste

management unit to the point of

exposure, and (4) calculated waste

concentrations that are likely to pose

unacceptable risk. In addition, the EPA

conducted a screening level ecological

risk assessment to ensure that the

concentration limits were dually

protective of human health and

ecological life.

The following sections explain the

selection of constituents that we

evaluated in the risk assessment and

present an overview of the analysis the

Agency used to calculate risk-based

listing levels for solvent cleaning waste,

water and/or caustic cleaning waste,

waste water treatment sludge, emission

control dust and sludges, and offspecification product. You will find

more details of how we selected the

constituents of concern in the Listing

Background Document. Details of the

risk assessment are provided in the

document in the docket entitled Risk

Assessment Technical Background

Document for the Paint and Coatings

Listing Determination (hereafter called

the Technical Background Document).

4. How EPA Chose Potential

Constituents of Concern

Our overall goal in choosing potential

constituents of concern was to identify

commonly used, potentially hazardous

constituents that could pose

unacceptable risk if present in

mismanaged paint manufacturing

wastes. Waste sampling was not

practical because we would have had to

conduct extensive sampling to

adequately represent thousands of

variable products and constituents. As

an alternative, we chose to rely on

published information and

environmental databases to select

constituents of concern. We believe our

review of the literature available on

paint formulation and manufacturing

combined with our search of specific

databases provided representative

information on widely used raw

materials. In addition, we selected

constituents for which we had access to

toxicity and fate and transport data to

conduct a risk assessment for each

potential constituent of concern. We

verified and supplemented these

sources with information provided by

paint manufacturers when the 3007

survey data was available.

We used the following three-phased

approach to develop a list of potential

constituents of concern. In the first

phase, we developed a preliminary list

of potentially hazardous constituents in

paint formulations which we could

readily evaluate for potential risks to

human health, and for which we have

test methods to detect their presence in

waste. In the second phase, we

narrowed the list to constituents for

which we would conduct a risk

assessment. In the third phase, we

10084 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

added a limited number of constituents

to the risk assessment, as additional

information became available.

a. Phase 1: How Did EPA Develop a

Preliminary List of Constituents? We

developed a preliminary list of

constituents in three steps: first, out of

the thousands of constituents that are

used as ingredients in paints, we

identified a subset of potentially

hazardous constituents used in paint

formulations; second, we identified

those constituents for which we have

adequate data to complete a risk

assessment so that we could develop a

protective concentration level for the

listing, if appropriate; finally, we

ensured that test methods were

available so paint manufacturers would

be able to identify the presence and

concentration of constituents in their

wastes, as necessary.

Initially, we relied on the ‘‘Database

of Published Paint Information’’

(available in the docket), a

computerized database that

characterizes paint raw materials. In

particular, we used the ‘‘Raw Materials

Module’’ which contains information on

the following types of ingredients that

are used to make paints (we believe that

these categories cover the vast majority

of paint ingredients that could pose a

concern):

Additives—Inorganic and organic metalcontaining raw material additives such as

driers (siccatives), catalysts, stabilizers.

Binders—Organic polymeric compounds

used to adhere the pigment particles and

other paint ingredients into a film on the

surface being painted.

Biocides—Compounds used to kill

microorganisms and larger organisms such as

insects. Categories of biocides include

insecticides, anti-fouling compounds (e.g.,

for use on ships), fungicides, algaicides, and

mildewcides.

Pigments—Insoluble particulates used to

give the paint film color as well as structured

strength, as well as in some cases imparting

corrosion resistance or other properties to

paint film.

Solvents—Solvents used both in traditional

‘‘oil’’ based (solvent based) paints, as well as

those solvents used in waterborne paints.

The constituents in the ‘‘Raw

Materials Module’’ were identified from

an extensive set of reference materials,

including textbooks, monographs,

articles and Material Safety Data Sheets

listed in the ‘‘Bibliography of

Documents Module’’ of the database.

We believe this survey approach

allowed us to identify constituents that

are used in paint formulations based on

a variety of sources. We also

emphasized constituents we had reason

to believe were more likely to pose a

risk to human health and the

environment. (For example, we used

other governmental sources, such as a

National Institute of Occupational

Safety and Health (NIOSH) document

characterizing hazardous worker

exposures in paint manufacturing, as

well as our experience in the RCRA

program dealing with a variety of

hazardous and potentially hazardous

constituents.) In the fall of 1999, when

we developed the preliminary list of

constituents, the Raw Materials Module

contained approximately 500

constituents.

In developing the preliminary list of

constituents, we also considered other

sources that might provide information

on specific constituents associated with

paint manufacturing facilities. For this,

we turned to the Toxics Release

Inventory (TRI) data base. Under the

Emergency Planning and Community

Right-to-Know Act (EPCRA), all paint

manufacturing facilities with ten or

more employees must report chemical

releases if they manufacture, process, or

otherwise use any EPCRA section 313

chemicals in quantities greater than the

established thresholds. Facilities must

report the quantities of both routine and

accidental releases. Facilities are

required to report quantities only for

individual constituents. In the 1997 TRI,

a total of 646 facilities in SIC code 2851

reported releasing 115 different

constituents into the environment. From

these 115 constituents, we identified

approximately 60 additional

constituents that were not already in the

‘‘Raw Materials Database,’’ but were

associated with paint manufacturing

facilities. While TRI reports of

constituent releases cannot be tied

directly to the five waste streams in the

scope of this rule, TRI releases do tell

us that the constituents are used by

paint manufacturing facilities, released

into the environment, and could

potentially be found in the waste

streams of concern.

We recognize that the TRI data do not

correlate perfectly to the scope of

facilities and wastes potentially covered

by this listing. For example, the SIC

category also includes some facilities

that are not paint producers. Also, TRI

tracks releases of specific constituents.

However, the TRI data do not

distinguish whether the releases are

hazardous or non-hazardous wastes or

whether the constituents are present in

a larger matrix with other materials.

While TRI does not contain sufficiently

detailed information to associate

releases directly with paint production,

it does provide the best available

information source on toxic constituent

releases to waste management units and

environmental media from facilities

within the appropriate SIC code.

Our next critical step in identifying a

preliminary list of constituents was to

determine which constituents we could

readily analyze for potential human

health effects and which constituents

could be readily tested in wastes. We

looked for the following:

Health benchmarks: values used to

quantify a chemical’s possible toxicity and

ability to induce a health effect. Benchmarks

are also specific to routes of exposure

(ingestion or inhalation) and duration of

exposure.

Physical/chemical properties: information

used to predict the behavior and movement

of constituents in the environment essential

to model environmental fate and transport.

Analytic methods: reliable methods

available to test for the presence of

constituents at concentrations of concern in

order to implement a concentration based

listing. We identified those constituents that

have available SW–846 analytic methods.

We found that of the constituents in

the Raw Materials Module and the

constituents reported in the TRI, 114

had health benchmarks. We then

searched for data on physical/chemical

properties and SW–846 analytic

methods for each constituent. We finally

had a list of 66 constituents with test

methods and sufficient data to conduct

further analyses. We included the 66

constituents in the 3007 survey and

asked respondents to identify which

constituents occurred in each of their

paint manufacturing waste streams.

Table III.E–1 lists the 66 constituents.

TABLE III.E–1.—CANDIDATE

CONSTITUENTS FOR RISK ASSESSMENT

Acetone

Acrylamide and acrylamide derived polymers

Acrylonitrile and acrylonitrile derived polymers

Allyl alcohol

Antimony and compounds

Barium and compounds

Benzene

Benzyl alcohol

Butyl benzyl phthlate

Cadmium and compounds

Chloroform

Chromium and compounds

Cobalt and compounds

Copper and compounds

Cyanide

Cyclohexane

Dibutyl phthlate

3-(3,4lDichlorophenyl-1)1 dimethylurea

Diethyl phthlate

Di (2-ethylhexyl) phthlate

2,4 Dimethylphenol

1,4 Dioxane

Ethyl acetate

Ethylbenzene

Ethylene glycol

Formaldehyde and formaldehyde-derived

polymers

Isophorone

Lead and compounds

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10085

TABLE III.E–1.—CANDIDATE CONSTITUENTS FOR RISK ASSESSMENT—

Continued

M-Cresol

Methanol

Methyl acrylate

Methylene chloride

Methyl ethyl ketone

Methyl isobutyl ketone

Methyl methacrylate and methyl methacrylate

derivatives

2,2 Methylenebis (3,4,6-trichlorophenol)

Mercury and compounds

Molybdenum and compounds

M-Xylene

Naphthelene

N-Butyl alcohol

Nickel and compounds

Nitrobenzene

2-Nitropropane

O-Cresol

O-Xylene

P-Cresol

Pentachlorophenol

Phthalic anhydride

Phenol

Selenium and compounds

Silver and compounds

Styrene and styrene-derived compounds

Tetrachloroethene

Tin and compounds

Toluene

Toluene diisocyanate

1,1,1 Trichloroethane

1,2,4-Trichlorobenzene

Trichloroethene

2,4,6 Trichlorophenol

Vanadium and compounds

Vinyl acetate and vinyl acetate derived polymers

Vinylidene chloride and vinylidene chloride

derived polymers

Xylene (mixed isomers)

Zinc and compounds

b. Phase 2: How Did EPA Select

Potential Constituents of Concern for

the Risk Assessment? Before we began

our initial risk assessment analyses in

the fall of 1999, and before survey data

were available, we selected a subset of

34 constituents (from the 66) to use in

developing the risk assessment

structure. We believe that it is important

to select toxic constituents that are

likely to occur across a wider variety of

waste streams so that the concentrationbased listing will capture more wastes

of concern. While it is possible that

infrequently occurring constituents

could pose risks, we believe it is most

effective to address risks from

constituents that could be associated

with more paint production wastes and

occur in larger volumes. To select these

constituents, we looked for some

indicators that could give us insight into

which were more widely used or more

likely to occur in wastes. We started

with the 66 constituents identified in

Table 1 and looked at 1997 TRI data first

to find constituent volumes released to

waste management units and

environmental media. We then looked

at RCRA Biennial Reporting System

(BRS) data to find how frequently paint

manufacturing facilities generated

hazardous wastes that contain each of

the 66 constituents. ( Hazardous waste

generators are required to report

biennially the listed and characteristic

hazardous wastes that they generate by

waste code—the Biennial Reporting

System. Each hazardous waste code for

listed or TC characteristically hazardous

wastes is associated with specific

hazardous constituents that are the basis

of the listing.) We looked at the number

of paint manufacturing facilities that

reported generating hazardous waste

codes associated with the specific

constituents we were interested in.

While we know that these wastes are

already hazardous, we looked at these

data as possible indicators of

constituents that might be associated

with nonhazardous wastes at paint

manufacturing operations. We also

considered TRI data for two reasons.

First, TRI ‘‘releases’’ cover a broader

range of materials than ‘‘hazardous

wastes’’ (in the BRS) and include nonhazardous wastes that are not reported

to BRS. Also, TRI data provide some

indication of the relative amounts or

frequency that constituents may be

released into the environment.

First, we looked at TRI for the volume of

releases of each constituent from facilities in

SIC 2851 to on-site landfills, solidification/

stabilization, wastewater treatment, and

offsite landfills and surface impoundments.

We evaluated releases to these units first,

because, while we did not yet have the

results of the 3007 survey, these management

units correspond most closely to waste

management scenarios we generally address

for listing purposes. We initially identified a

list of 20 constituents out of the 66 with the

largest volume releases to these management

units.

Second, because solvents were heavily

represented among the first 20 constituents

we identified from TRI data, we focused on

the remaining constituents that fell into other

use categories, such as pigments, binders,

and biocides. We believe that it is important

to have a broader representation of other

types of constituents, besides solvents, which

are used in paint formulations. (We note that

some constituents serve more than one

purpose in paint formulations.) We

considered total TRI releases (including

releases to air, surface waters, etc., in

addition to releases to the waste management

units listed above) for each of the remaining

constituents. We also looked at the number

of RCRA facilities that are likely to generate

the constituent in hazardous waste, based on

BRS data. This resulted in adding 13

constituents, including all eight remaining

pigments, binders and biocides that had any

TRI releases and 5 that were only reported in

the BRS.

Third, while we did not have TRI data

available for two additional constituents,

cobalt and tin, we added them based on our

knowledge that they are commonly used as

pigments in paints.

We initially identified 35 constituents

that met our screening criteria.

However, we later dropped one of the

35 constituents (phthalic anhydride)

because it degrades too rapidly to

model. In summary, we used the 34

constituents listed in Table III.E–2 to

develop the risk assessment structure

and draft analysis.

c. Phase 3: How Did EPA Choose

Additional Constituents for The Risk

Assessment? Before we completed the

risk modeling, we added a limited

number of constituents to the 34 we

chose initially. We looked at three

groups of constituents. First, since we

had chosen the initial group of

constituents in the fall of 1999, we

identified five additional constituents

(from the list of 114 constituents with

health benchmarks) that met the criteria

for risk assessment (the Agency’s Office

of Research and Development identified

physical/chemical properties and SW–

846 methods are available). Second, we

had 3007 survey responses reporting

which of the 66 constituents (candidates

for modeling, including the 34 we used

to develop the risk assessment modeling

structure) occur in non-hazardous waste

streams. Finally, we found TRI data for

one additional constituent on the list of

66. Ultimately, we chose additional

constituents based on the 3007 survey

reporting.

First we considered the five

constituents (from the initial list of 114,

but not included in the 66) for which we

received later information identifying

physical/chemical properties, and SW–

846 methods: these were acetophenone,

chlorobenzene, ethyl ether, p-chlorometa-cresol, and

tetrachloroisophthalonitrile. As with the

first group of 34 constituents, we

considered the available data for further

evidence associating the constituents

with paint manufacturing facilities.

Acetophenone and chlorobenzene are

TRI chemicals but had no TRI releases

reported by SIC 2851 facilities. Ethyl

ether, o-chloro-meta-cresol, and

tetrachloroisophthalonitrile are not

covered by TRI. In the BRS, four SIC

2851 facilities reported hazardous

wastes that were listed, at least in part

based on chlorobenzene. We found no

BRS reporting of hazardous wastes

associated with the other four

constituents.

Then, we also considered the

additional information reported in the

3007 survey. The survey listed the 66

constituents that were candidates for

10086 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

12Also, generators should know if trichloroethene

is in their wastes because it is a TC constituent

(D040, trichloroethylene).

risk assessment and asked respondents

to identify which constituents occur in

each of their waste streams, both

hazardous and non-hazardous. While

response to this question was

mandatory, the responses were based on

existing knowledge or waste testing

already available to the respondent. In

discussing these results below,

‘‘reporting frequency’’ or ‘‘frequency of

occurrence’’ refers to the number of

times each constituent was reported to

occur in a non-hazardous waste stream

by a facility. The numbers reflect the

total number of waste streams that were

reported with identified constituents,

not the number of facilities. Some waste

streams were reported without any

associated constituents.

In survey data, respondents identified

45 of the 66 constituents occurring in

their non-hazardous waste streams.

Frequency of occurrence ranged from

127 for barium to one for o-xylene and

benzyl alcohol. Twenty-nine of the 34

constituents we chose initially for

modeling were among the 45. We

initially modeled the top 22 in terms of

reporting frequency and out of the top

26, we modeled 24. Five of the

constituents we modeled were not

identified by respondents as occurring

in non-hazardous waste streams. These

results support the interpretation that

our initial approach to choosing

constituents was appropriate.

Finally we considered

trichloroethene, which was one of the

66 constituents, but was not initially

chosen for risk modeling. We found

there were TRI releases reported for

trichloroethene, so we also looked at

survey responses to find how often

respondents identified it occurring in

their waste streams. We found that

trichloroethene was not reported in

either non-hazardous or hazardous

waste streams. We compared this to

responses for several other widely used

solvents. Several were reported in both

non-hazardous and hazardous waste

streams and the frequency of reporting

was significantly higher in the

hazardous waste streams. For example,

toluene was reported in 38 nonhazardous waste streams and 249 listed

hazardous waste streams. Xylene was

reported in 33 non-hazardous waste

streams and 246 listed hazardous waste

streams. Ethylbenzene was reported in 6

non-hazardous wastes and 126 listed

hazardous waste streams. Comparing

‘‘no reported occurrence’’ of

trichloroethene in either non-hazardous

or hazardous waste streams to the nonhazardous/hazardous reporting for other

widely used solvents led us to conclude

that trichloroethene is less likely to be

a frequently occurring constituent in

non-hazardous waste streams than other

constituents that actually were reported

in the survey as occurring in nonhazardous wastes.12 Therefore, we did

not model trichloroethene. It is not a

constituent considered as a basis for the

concentration based listing.

We decided to add additional

modeling constituents from those

identified in the survey results rather

than any of the five constituents for

which we received additional data that

would allow us to conduct risk

modeling. We have no TRI data for any

of the five constituents with latearriving information. BRS data provided

some evidence that chlorobenzene is

associated with hazardous wastes from

four paint facilities. In contrast, the

survey provides actual reporting from

paint manufacturers on the occurrence

of constituents in their nonhazardous

waste streams. We believe that BRS

reporting associated with chlorobenzene

at four facilities is less compelling than

reporting frequency in the survey as a

basis for adding additional constituents

for risk modeling.

Therefore, we added the following six

constituents for risk modeling based on

reported frequency of occurrence in

non-hazardous waste streams: butyl

benzyl phthalate with 26 occurrences;

acrylamide with 22 occurrences;

benzene with 11 occurrences; and m-,

o-, and p-cresol isomers with 14

occurrences (for m-cresol and o-cresol).

We modeled all three cresol isomers

because they are sometimes difficult to

distinguish with available sampling

methods and they often occur together.

Also, all three isomers are TC

constituents.

In summary we modeled 43

constituents. There are several points to

note concerning the constituents that we

modeled:

• There are 11 metals on our list of

modeling constituents, and we actually

modeled 14 because we modeled elemental

mercury and divalent mercury, chromium III

and chromium VI, and nickel and nickel

oxide. Metals exist in a wide variety of

chemical species, and this may be an

important factor in assessing the fate,

mobility, and toxicity of metals in our risk

analysis. For the metals noted above, we have

sufficient information on mobility and

toxicity to model different species. Metals are

present in paint manufacturing wastes as

simple metal salts, or the metal could be part

of a larger organic or inorganic metal

compound. For example, for lead there are a

number of compounds used in paints, such

as lead naphthenate, lead molybdate

chromate, lead sulfate, lead chromate, lead

oxide, etc. We believe that by modeling these

14 metals, we are in fact representing a

broader range of compounds that are likely

to be used in paints. As discussed in the

Section III.E.3 (see discussion on uncertainty

in human health risk results), we recognize

that the ionic forms of metals we modeled

may over or under represent the mobility of

many of these metal compounds. However,

given that metal speciation may also change

as the constituents move from the waste into

the environment, we believe our modeling

efforts are a reasonable approach to assessing

the risks presented by the metals.

• Fifteen of the constituents are TC

constituents. We chose to model these

because we were concerned that risk-based

levels derived from modeling might be lower

than TC concentration levels. We had

experience from the petroleum listing where

one TC constituent, benzene, was present in

the wastes below the TC concentration level

and potentially could pose a risk, (see 63 FR

42110, August 6, 1998). In addition, because

we intended to conduct a multi-pathway risk

assessment that would take into account

direct and indirect risks from air and ground

water as well as from ingestion of ground

water, it was possible that risk-based

concentrations for other exposure pathways

might be lower than those for ingestion of

ground water alone, which is the basis for the

TC.

• Fifteen of the constituents are pigments;

ten are biocides; 17 are solvents; five are

binders; and two are driers (the numbers do

not add up to the total number modeled

because some constituents have more than

one purpose).

• With the addition of the six new

modeling constituents, we modeled 34

constituents with 3007 survey reported waste

stream occurrences ranging from 127 to two.

We modeled the top 30 in terms of reporting

frequency in waste streams, with the

exception of acetone (discussed below). We

also completed modeling for the five

constituents modeled initially but not

reported in the survey, because there is a

possibility that they may occur in the total

universe of paint manufacturing wastes.

We did not model acetone, although it was

reported at 11 occurrences, because it was

removed from the TRI in 1995. It was

removed from the TRI because ‘‘***

acetone: (1) Cannot reasonably be anticipated

to cause cancer or neurotoxicity and has not

been shown to be mutagenic and (2) cannot

reasonably be anticipated to cause adverse

developmental effects or other chronic effects

except at relatively high dose levels.’’

(Federal Register: June 16, 1995 (Volume 60,

Number 116), pp. 31643–31646.) On the

same day, EPA also added acetone to a list

of compounds excluded from the definition

of a VOC under Title I of the Clean Air Act,

based on an Agency determination that

acetone has a negligible contribution to

tropospheric ozone formation.

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10087

Table III.E–2 lists all the constituents

that we modeled, the use category that

they fall under and their frequency of

occurrence when they were reported in

non-hazardous waste streams.

TABLE III.E–2.—CONSTITUENTS MODELED FOR RISK ASSESSMENT

Constituent Purpose Weighted frequency of occurrence in

non-hazardous waste streams

Barium 1 .............................................................. Pigment ............................................................ 127.4

Zinc ..................................................................... Pigment/Biocide ............................................... 126.8

Vinyl Acetate ...................................................... Solvent/binder .................................................. 98.4

Ethylene Glycol .................................................. Solvent ............................................................. 90.0

Copper ................................................................ Pigment/Biocide ............................................... 86.7

Chromium III 1 ..................................................... Pigment ............................................................ 84.6

Chromium VI 1 .................................................... .......................................................................... (Identified as chromium in the survey)

Cobalt ................................................................. Pigment/drier .................................................... 73.0

Styrene ............................................................... Binder ............................................................... 63.0

Formaldehyde ..................................................... Biocide ............................................................. 62.8

Lead 1 .................................................................. Pigment/drier .................................................... 58.2

Antimony ............................................................. Pigment ............................................................ 45.9

Silver 1 ................................................................. Pigment/biocide ................................................ 45.6

Methanol ............................................................. Solvent/biocide ................................................. 40.0

Toluene ............................................................... Solvent ............................................................. 38.8

Methyl Ethyl Ketone 1 ......................................... Solvent ............................................................. 36.9

N-Butyl Alcohol ................................................... Solvent ............................................................. 35.6

Acrylonitrile ......................................................... Binder ............................................................... 35.0

Cadmium 1 .......................................................... Pigment ............................................................ 34.5

Xylene ................................................................. Solvent ............................................................. 33.5

Nickel .................................................................. Pigment ............................................................ 28.3

Nickel oxide ........................................................ Pigment ............................................................ (identified as nickel in survey)

Phenol ................................................................ Solvent/biocide ................................................. 28.0

Methyl Methacrylate ........................................... Binder ............................................................... 27.2

Butyl Benzyl Phthalate 2 ..................................... Solvent ............................................................. 26.6

Acrylamide 2 ........................................................ Binder ............................................................... 22.5

Dibutyl Phthalate ................................................ Solvent ............................................................. 22.0

m-Cresol 1,2 .......................................................... Solvent ............................................................. 7.45

o-Cresol 1,2 ........................................................... Solvent ............................................................. 7.45

p-Cresol 1,2 .......................................................... Solvent .............................................................

Methyl Isobutyl Ketone ....................................... Solvent ............................................................. 11.8

Benzene 1,2 ......................................................... Solvent ............................................................. 11.0

Tin ....................................................................... Pigment ............................................................ 9.0

Mercury 1 ............................................................. Pigment/biocide ................................................ 7.6

Divalent mercury ................................................ Pigment/biocide ................................................ (Identified as mercury in the survey)

Ethylbenzene ...................................................... Solvent ............................................................. 6.1

Selenium 1 ........................................................... Pigment ............................................................ 5.1

Di(2-ethylhexyl) Phthalate .................................. Solvent ............................................................. 2.2

Chloroform 1 ........................................................ Biocide .............................................................

Methylene chloride ............................................. Solvent .............................................................

2,4 dimethylphenol ............................................. Biocide .............................................................

Pentachlorophenol 1 ............................................ Biocide .............................................................

Tetrachloroethylene 1 .......................................... Solvent .............................................................

1 Indicates Toxicity Characteristic (TC) constituents.

2 Indicates constituents added to the risk assessment based on frequency of occurrence reported in the 3007 survey.

5. What Was EPA’s Approach to

Conducting Human Health Risk

Assessment?

Our human health risk analysis for

the paint and coating waste streams

estimates the concentrations of

individual constituents that can be

present in each waste stream and

provide a specified level of

protectiveness to human health and the

environment. The human health risk

assessment for the paints and coatings

listing determination evaluates waste

management scenarios that may occur

nationwide. A national analysis that

captures variability in meteorological

and hydro-geological conditions was

selected for this listing because paint

manufacturing is widespread, and

facilities that generate the waste streams

of interest are found nationwide.

This risk assessment is intended to

limit the risk to individuals who reside

near waste management units used for

paint manufacturing waste disposal by

determining the concentrations of

particular constituents that can be

managed in paint manufacturing wastes

and remain below a specified individual

target risk level.

For this listing, we generated riskbased concentration limits in waste

streams by estimating the concentration

of a constituent that can be managed in

the waste streams reported in the 3007

survey and remain below a target risk

level for both cancer risk and noncancer

human health hazards to 90% of the

individuals living near waste

management units handling paint

manufacturing wastes. Human health

impacts are expressed as estimates of

excess lifetime cancer risk for

individuals (called ‘‘receptors’’) who

may be exposed to carcinogenic

contaminants and as hazard quotients

(HQ’s) for those contaminants that

produce noncancer health effects.

Excess lifetime cancer risk is the

probability of an individual developing

10088 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

cancer over a lifetime as a result of

exposure to a carcinogen. A hazard

quotient is the ratio of an individual’s

chronic daily dose of a noncarcinogen to

a reference dose (an estimate of daily

exposure that is likely to be without

appreciable risk or deleterious effects

over a lifetime) for exposures to the

noncarcinogen. For this listing, the

Agency selected a target risk level for

excess lifetime cancer risk for

individuals exposed to carcinogenic

(cancer-causing) contaminants of 1

chance in 100,000 (1E–05). For

constituents that are non-carcinogens,

the Agency selected the measure of safe

intake levels to projected intake levels,

a hazard quotient (HQ), of HQ=1.

The use of these risk levels is

consistent with the EPA’s hazardous

waste listing policy and the target risk

levels used in past hazardous waste

listings (e.g., see 59 FR 24530, December

22, 1994). Risk levels themselves do not

necessarily represent the sole basis for

a listing. There can be uncertainty in

calculated risk values and so other

factors are considered in conjunction

with risk in making a listing decision.

EPA’s current listing determination

procedure uses as an initial cancer-risk

‘‘level of concern’’ a calculated risk

level of 1E–05 and/or environmental

risk quotients (EQ’s) of 1 at any one

point in time. Waste streams for which

risks are calculated to be 1E–04 or

higher, or 1 HQ or higher for any

individual non carcinogen, or non

carcinogens that elicit adverse effects on

the same target organ, generally will be

considered to pose a substantial present

or potential hazard to human health and

the environment and generally will be

listed as hazardous waste. Such waste

streams fall into a category

presumptively assumed to pose

sufficient risk to require their listing as

hazardous waste. However, even for

these waste streams there can in some

cases be factors which could mitigate

the high hazard presumption. Listing

determinations for waste streams with

calculated high-end individual cancer

risk levels between 1E–04 and 1E–06

always involve assessment of additional

factors. For today’s proposed listing

there are several factors that we

considered in setting the risk level of

concern, these included: (1) Certainty in

the risk assessment methodology, (2)

coverage by other regulatory programs,

(3) damage cases, and (4) presence of

toxicants with unquantifiable risks. We

believe a target cancer risk level of 1E–

05 and an HQ of 1 is appropriate for this

listing, but we welcome comments and

supporting data if there is a compelling

reason for an alternative target.

To calculate listing levels for

constituents of concern, we needed to

determine what concentrations at the

point of exposure would be associated

with levels in the waste for each waste

stream and waste management unit. We

used three types of analyses to

determine the risks associated with the

management of paint manufacturing

wastes: (1) A probabilistic analysis for

all waste management scenarios; (2) a

deterministic analysis for all waste

management scenarios, and (3) a

bounding analysis for on-site

management of waste waters in

treatment tanks. The results of the

bounding analysis demonstrated that

given the concentrations of constituents

that we expect in paint manufacturing

waste the risk generated from paint

manufacturing wastes managed in onsite tanks is not significant. The

following sections describe the risk

assessment.

(1) Probabilistic Analysis (Monte

Carlo Method). A probabilistic analysis

calculates distributions of results (in

this case protective waste

concentrations for each constituent) by

allowing some of the parameters used in

an analysis to have more than one value.

The model is run numerous times (for

this analysis we ran the model 10,000

times) each time with different values

selected from the distributions of input

parameters. A parameter is any one of

a number of inputs or variables (such as

waste volume or distance between the

waste management unit and the

receptor) required for the fate and

transport and exposure models and

equations that EPA uses to assess risk.

In the probabilistic analysis, we vary

sensitive parameters for which

distributions of data are available.

Parameters varied for this analysis

include waste volumes, waste

management unit size, parameters

related to the location of the waste

management unit such as climate and

hydro-geologic data, location of the

receptor, and exposure factors (e.g.,

drinking water ingestion rates). In some

cases, in order to maintain the inherent

correlation between parameters, we treat

multiple parameters as a single

parameter for the purpose of conducting

the analysis. We do this to prevent

inadvertently combining parameters in

our analyses in ways that are

unrealistic. For example, we treat

environmental setting (location)

parameters such as climate, depth to

groundwater, and aquifer type as a

single set of parameters. We believe

that, for example, allowing the climate

from one location to be paired with the

depth to groundwater from another

location could result in a scenario that

would not occur in nature.

The probabilistic analysis is

conducted using a Monte Carlo

methodology. Monte Carlo analysis

provides a means of quantifying

variability in risk assessments by using

distributions that describe the full range

of values that the various input

parameters may have. Some of the

parameters in the probabilistic analysis

are set as constant values because (1)

there are insufficient data to develop a

probability distribution function ; (2)

EPA made assumptions to simplify the

analysis in cases where such

simplifications would improve the

efficiency of the analysis without

significantly affecting the results; and

(3) the analysis has not been shown to

be sensitive to the value of the

parameter, that is, even if the parameter

varies, the resulting risk estimate does

not vary significantly. The result of the

probabilistic risk assessment is a

distribution of risk-based concentration

limits or ‘‘listing levels.’’ The EPA used

the results of the probabilistic risk

assessment to determine the regulatory

listing levels.

(2) Deterministic Analysis. The

deterministic method uses single values

for input parameters in the models to

produce a point estimate of risk or

hazard. We used the deterministic

analysis to corroborate the results of the

probabilistic analysis. For the

deterministic analysis, we conduct both

a ‘‘central tendency’’ and a ‘‘high end’’

deterministic risk assessment. These

two analyses attempt to quantify the

cancer risk or non-cancer hazard for the

‘‘average’’ receptor in the population

(the central tendency risk) and the risk

or hazard for individuals in small, but

definable ‘‘high end’’ segments of the

population (the high end risk). For

central tendency deterministic risk

analyses, we set all parameters at their

central tendency values. For the paint

and coatings risk assessment, the central

tendency values generally are either

mean (average) or 50th percentile

(median) values. We use high end

deterministic risk analyses to predict

the risks and hazards for those

individuals exposed at the upper range

of the distribution of exposures. EPA’s

Guidance For Risk Characterization

(EPA 1995) advises that ‘‘conceptually,

high end exposure means exposure

above about the 90th percentile of the

population distribution, but not higher

than the individual in the population

who has the highest exposure,’’ and

recommends that ‘‘* * * the assessor

should approach estimating high end by

identifying the most sensitive variables

and using high end values for a subset

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10089

13Schroeder, K.R. Clickner, and E. Miller, 1987.

Screening Survey of Industrial Subtitle D

Establishments. Draft Final Report. Prepared for the

Office of Solid Waste, U.S. Environmental

Protection Agency. Westat, Inc. Rockville, MD.

of these variables, leaving others at their

central values.’’ As such, for the paint

and coatings risk assessment, high end

deterministic risk analyses, EPA

established a set of the parameters most

likely to influence the results of the

assessment and set two of these

parameters at a time to their high end

values (generally 90th percentile

values), and set all other parameters at

their central tendency. The high-end

deterministic analysis results are based

on the two most ‘‘sensitive parameters.’’

These are the two parameters that when

set at their high-end values, generated

the highest estimate of risk or hazard.

These two most ‘‘sensitive parameters’’

vary according to the constituent and

pathway evaluated. Appendix C of the

risk assessment technical background

document shows the two most sensitive

parameters for each constituent and

pathway. The EPA did not perform a

sensitivity analysis on all parameters in

this risk assessment. Rather, the

parameters we selected to vary in the

deterministic analysis were a smaller

list based on sensitivity analyses

performed on the same models for other

listing determinations that determined

the most sensitive parameters in our

models. For the aboveground pathways,

the parameters considered most likely to

influence the results were the waste

management unit surface area, the

distance to the receptor, the

meteorological station location, the

sorption coefficients for the waste

management unit and surficial soil, the

receptor’s exposure duration, and the

volume of paint waste in the waste

management unit. For the groundwater

pathways, the parameters considered

most likely to influence the results

included; the distance to receptor well,

depth to groundwater, the sorption

coefficients, the receptor’s exposure

duration, and the volume of paint waste

in the waste management unit. We did

not use the deterministic analysis to

develop today’s proposed listing levels.

The deterministic analysis is discussed

in more detail in the Technical

Background Document

(3) Bounding Analysis. This type of

analysis is very conservative but

presents a quick and simple way to

‘‘screen out’’ potential scenarios of

concern. A bounding analysis was used

for the on-site tank scenario because,

based on previous listing

determinations, we did not think

volatilization from the small volumes

managed on-site was likely to generate

a risk of concern. Similar to the

deterministic and probabilistic analyses,

the results of this risk assessment are

the concentration of each constituent

that can be managed in a tank and

remain protective of human health. To

conduct this analysis, the most sensitive

or risk-driving parameters in the risk

assessment tank model were varied

between their high-end and central

tendency values. The tank

characteristics (i.e., capacity, surface

area, and diameter) used in the analysis

were based on the tank reported by the

facility with the highest waste volume

managed in a tank. The tank modeled

was a 9000 gallon, aerated waste water

treatment tank. For the analysis we

assumed there was no biodegradation in

the tank. Similar to the deterministic

assessment, two high-end parameters

were varied at a time to determine the

greatest ‘‘high-end’’ risk combination.

The greatest reported waste volume was

always used as one of the high-end

parameters in the two parameter

combination. The three other high-end

parameters were varied between their

high-end and central tendency values.

These three parameters were; the

distance from the waste management

unit to the receptor, the duration that

the receptor was exposed to the

contaminant, and the meteorological

location of the waste management unit.

Based on the results of this analysis, we

determined that the risk of waste water

management in on-site tanks is

insignificant for all constituents for one

of three different reasons: (1) The

estimated constituent concentration was

greater than 1 million parts per million

and therefore was not physically

achievable, (2) the estimated constituent

concentration was above the

constituent’s RCRA hazardous waste

toxicity characteristic and the waste

would already be classified as

hazardous, or (3) we determined, based

on knowledge of paint formulations,

that non-hazardous paint manufacturing

waste waters would never contain

concentrations of the constituent at the

level that may produce a risk (see

Section for further discussion).

a. What Waste Management Scenarios

Were Evaluated? We evaluated four

waste management units that represent

plausible management scenarios that are

likely destinations for paint and coating

production waste streams. The modeled

units include landfills, surface

impoundments, on-site tanks, and offsite tanks. Section III.D describes in

detail why these waste management

units were selected for evaluation in the

risk assessment. The waste management

scenarios for each of these units were

created using information reported by

industry on the management of their

non-hazardous paint manufacturing

waste streams. In addition, we used

information on the national

distributions of waste management unit

characteristics (e.g., size and waste

capacity) collected with surveys

conducted for other rulemakings to

establish the characteristics of the offsite waste management units.

(i) Type of Waste Management Units

and Their Characteristics. We evaluated

commercial industrial non-hazardous

landfills, surface impoundments, and

off-site tanks for the probabilistic and

deterministic risk assessment. On-site

tanks were also evaluated in a bounding

analysis. With the exception of the onsite tanks, each type of waste

management unit has a distribution that

characterizes the units with respect to

capacity and dimension (e.g., area and

depth). These dimensions and operating

characteristics are important

determinants of the extent to which a

contaminant may be released from the

unit. Each type of waste management

unit is assumed to have different

operational lifetimes (between 20–50

years) and different lengths of time

during which constituents are assumed

to be released from the unit (between 30

and 200 years).

For landfills and surface

impoundments we evaluated the

scenario of disposal in an unlined waste

management unit and assessed the

impact of the release of leachate from

the landfill and surface impoundment to

the groundwater. In addition, we

assumed that the landfill did not have

daily cover and the surface

impoundment was open to the air. The

primary source of data used to establish

the characteristics of landfills and

surface impoundments for both the

probabilistic and deterministic analysis

is our 1985 Screening Survey of

Industrial Subtitle D Establishments.13

There are over 2,850 landfills reported

in this survey. Since paint

manufacturing facilities reported that

their wastes were sent to off-site

landfills, the characteristics the sixtyeight landfills reported in this survey to

accept wastes in all or in-part from offsite sources were selected for

characterizing the landfills included in

this assessment.

There were 1,930 surface

impoundments reported in the 1985

Industrial D Screening Survey. Twentyseven of these surface impoundments

were not included in the distribution

used for this risk assessment because

the data were not complete in the

survey or the facility indicated that the

10090 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

14U.S. EPA. 1987. 1986 National Survey of

Hazardous Waste Treatment, Storage, Disposal, and

Recycling Facilities Database.

15U.S. Department of Commerce. 1999. Paint and

Coating Manufacturing: 1997 Economic Census;

Manufacturing Industry Series. EC97M–3255A. U.S.

Census Bureau, Washington, D.C. August.

surface impoundments were only used

as backup storage units. A stratified

random sample of 200 of the remaining

1,903 surface impoundments was used

in the analysis. Data on the surface

impoundment total capacity and total

1985 waste quantity were used in the

analysis. Surface impoundments were

assumed to be operated with varying

degrees of aeration. Aeration

characteristics were not a parameter

reported in the Industrial D survey and

in the absence of this data, the

distribution of aeration characteristics

from the tanks database (described

below) was randomly applied to surface

impoundments.

For the evaluation of off-site

management of waste waters in

treatment tanks, a tank database was

developed for this analysis that

compiled flow rates, treatment methods,

and tank volumes. The primary source

for these data was EPA’s 1986 National

Survey of Hazardous Waste Treatment,

Storage, Disposal, and Recycling

Facilities (TSDR) Database.14 Although

this database collected information on

hazardous waste tanks, this database

was used since it is the most

comprehensive collection available of

information on tank characteristics.

Since similar treatment technologies are

used for hazardous and non-hazardous

waste we believe that the characteristics

of non-hazardous tanks is not

significantly different from hazardous

tanks. This database is a result of a

comprehensive survey of 2,626 TSDR

facilities, on 1986 waste management

practices and quantities. A subset of the

data contained information on 8,510

tanks that received wastes from off-site.

Since it was not computationally

feasible to model all 8,510 of the tanks

for this analysis, a sample from the

tanks in this survey was used to develop

the characteristics of off-site tanks.

There were several criteria used in

selecting a sample from the tanks in the

1986 survey. Some of the criteria used

were: (1) Only those tanks reporting

flow rates (demonstrating they were

used for waste management) were

included in the analysis, (2) only

treatment tanks were considered in the

analysis and tanks that were closed or

covered were not included in the

distribution, (3) no reported tanks with

a volume the size of a drum or smaller

were included since these are likely to

be short-term units or containers. From

all the tanks that met the above

mentioned criteria, a sample of 200

tanks was drawn from the data that

comprised the tank distribution. The

sampling was conducted to preserve the

range and distribution of tanks in the

underlying database. To reflect emission

characteristics associated with

differences within the treatment tank

category related to aeration intensity,

three different tank categories were

identified and modeled: high aerated

treatment tanks, low aerated treatment

tanks, and nonaerated (quiescent)

treatment tanks. Examples of quiescent

treatment tanks are clarifiers and filters

(such as sand or mixed-media filters). In

the absence of aeration, quiescent

treatment tanks are still subject to small

amounts of agitation during filling and

emptying operations if the tank has

above-surface intakes. Sorting the tanks

in the database into these three

categories was done using the data

reported in the TSDR category.

(ii) Location of Waste Management

Units. Determining the location of waste

management units is important for the

selection of environmental setting data

(e.g., meteorological and hydrological

data) for constituent fate and transport

modeling. Since we do not know the

location of all specific paint production

waste disposal, we assumed that waste

disposal locations are correlated with

the location of the paint production

facilities. We also assumed that

nonhazardous waste from paint

manufacturing facilities is disposed

within reasonable transport distances of

the facility. Therefore, we created a

distribution of locations of paint

manufacturing waste treatment and

disposal facilities across the United

States. The locations of waste

management in the distribution are

weighted according to the total dollar

value of product shipments reported for

a State. We assumed that the larger the

total dollar value of shipments, the

greater the volume of paint production

in the State and we weighted the

probabilistic analysis accordingly. In

other words, the meteorological

locations in States with the larger

reported dollar value of paint shipments

in the probabilistic analysis had more of

the 10,000 iterations. The source of

information on the dollar value of

product shipments is the 1997

Economic Census of Paint and Coating

Manufacturing (U.S. Department of

Commerce, 1999).15 The Census

reported the dollar value of shipments

made by paint manufacturing facilities

by State. In all, 36 states reported paint

production volumes on a dollar value

basis. The Census, however, included

only States for which facility data can

be reported without disclosing

confidential business information. Data

cannot be reported if the population of

paint manufacturing facilities is so

small that confidentiality cannot be

maintained if data were reported on a

State level. Since the States not

included in the 1997 Census may only

have a few paint manufacturing

facilities, not including these States

does not impact this analysis. Locations

for modeling were selected first for

States according to the volume of paint

manufactured and then by the general

location of paint manufacturing

facilities within the State. The EPA’s

1997 Toxic Release Inventory was used

to determine the possible location of the

paint manufacturing facilities within a

State. In many cases the majority of the

paint manufacturing facilities were

located in several clusters throughout a

State. Therefore, in some cases several

different meteorological stations and

hydrological regimes within a single

State were modeled. Forty-nine

meteorological stations in 39 states were

used in the risk assessment.

(iii) Waste Volumes. In Part III,

Section D, we explained how we

identified waste volumes reported in the

3007 survey data that represent the

distribution of volumes of nonhazardous waste being sent to nonhazardous landfills, surface

impoundments, and tanks across the

nation. We compiled distributions of

waste solids sent to landfills and waste

liquids sent to tanks and surface

impoundments. Each waste volume has

a corresponding weighting factor that

represents the number of facilities in the

total sampling population that sent a

particular waste volume to a particular

type of waste management unit. The risk

assessment modeling requires the use of

volumes going to a waste management

unit, therefore the waste quantities here

are presented as volumes (in gallons) as

opposed to mass (in tons), the waste

descriptor that has been used in

previous sections of this preamble. For

the probabilistic risk assessment the

weights were used to determine the

frequency a waste volume was

evaluated in the 10,000 iterations

comprising the Monte Carlo analysis. In

general, the waste volumes reported

were relatively small when compared to

the total waste capacity of the waste

management units. For the probabilistic

analysis, the volumes of emission

control dust going to a landfill range

from 40 gallons to 78,650 gallons, the

volumes of all the solids going to a

landfill range from 5 gallons to 426,739

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10091

gallons, and the range of aqueous wastes

that can be managed in either a surface

impoundment or off-site tank is from

151 gallons to 104,225 gallons. For the

deterministic analysis, the 50th and

90th percentile waste volumes from

each of the volume distributions was

used. These volumes are shown in Table

III.E–3 below.

TABLE III.E–3.—WASTE VOLUMES USED FOR THE RISK ASSESSMENT

Percentile

Emission

control dust

(gallons/yr)

Combined

solids

(gallons/yr)

Liquid wastes

(gallons/yr)

Minimum ...................................................................................................................................... 40 5 151

50th .............................................................................................................................................. 644 375 12,000

90th .............................................................................................................................................. 58,340 43,270 26,752

Maximum ..................................................................................................................................... 78,650 426,739 104,225

b. What Exposure Scenarios Did EPA

Evaluate? Prior to conducting the risk

assessment, we had to establish that

there is a plausible scenario under

which a receptor might be exposed to

contaminants managed in paint

manufacturing wastes. Establishing this

scenario required that we determine:

how the waste is managed, how

contaminants can be released from the

waste management unit, how

contaminants can be transported in the

environment to a point of contact with

a receptor; and how a receptor can be

exposed to a contaminant. For the

reasons discussed in Part II, Section D,

we chose to evaluate the risk

attributable to management of paint

production wastes in uncovered

biological treatment tanks, uncovered

and unlined surface impoundments,

and uncovered and unlined nonhazardous industrial landfills.

(i) Release Scenarios From Waste

Management Units. We determined that

releases from all of the waste

management units (tanks, landfills, and

surface impoundments) can occur

through release of vapor emissions to

the air. In addition, particulate

emissions to the air from solids

disposed in landfills is feasible. For the

landfill and surface impoundment waste

management scenarios, it was also

determined that releases could occur

through leaching of waste into the

subsurface. We assumed that tanks were

sufficiently impermeable that they were

highly unlikely to release volumes of

waste sufficient to pose an unacceptable

groundwater risk. Therefore it was not

necessary to develop risk-based

concentrations for the groundwater

pathway. The mechanisms and

pathways we evaluated are as follows:

1. Vapor emissions can remain dispersed

in the air, or can be deposited through wet

and dry deposition. Specifically, we modeled

the concentration of vapor phase

contaminants in air, the diffusion of vapor

phase contaminants into plants, the diffusion

of vapor phase contaminants into surface

water, wet deposition of vapors onto soils

and surface water, dry deposition of vapors

onto soils, and dry and wet vapor deposition

onto plants.

2. Particulate emissions can remain

dispersed in the air or be deposited through

wet deposition (in precipitation) or dry

deposition (particle settling). We assume that

particulates may be deposited onto soil and

surface water through both wet and dry

deposition, and onto plants through dry

deposition.

3. Leachate can migrate through the

unsaturated zone to the saturated zone,

where contaminants are transported in

groundwater to drinking water wells.

4. Constituents deposited onto soils from

vapor and particulate emissions can erode

into nearby surface water bodies.

(ii) Routes of Exposure. Human

receptors may come into contact with

the chemicals of concern present in

environmental media through a variety

of routes. In general, exposure pathways

are either direct, such as inhalation of

ambient air, or indirect, such as

consumption of contaminated food

products. For this risk assessment,

human receptors may come into contact

indirectly with vapors that diffuse into

vegetation, particulates that are

deposited onto vegetation, or

contaminants that are taken up by

vegetation from the soil and ingested in

fruits and vegetables, as well as

exposure to contaminated beef and

dairy products derived from cattle

which have ingested contaminated

forage, silage, grain, and surface soil.

Receptors that ingest fish may also

indirectly come into contact with

contaminants in air-borne vapors and

particulates (through vapor diffusion

into surface water, vapor deposition

onto surface water, and particulate

deposition onto surface water) and

runoff and eroded soil that has entered

the surface water body.

(iii) Receptors Evaluated. Most paint

facilities transport wastes generated

during paint production to waste

management units located off-site. For

the off-site waste management units

identified in the RCRA 3007 survey

(e.g., landfills) it is not uncommon to

have residential, recreational, or

agricultural land uses surrounding the

management unit. As such, we

determined that the following receptors

reasonably represent the types of

individuals that may be located near the

waste management units and could be

exposed to contaminants in paint

production wastes:

• An adult resident,

• The child of a resident,

• A farmer,

• The child of a farmer,

• A recreational fisher.

Some of these receptors might be

exposed through several pathways and

some might only be exposed through

one pathway. Receptors are evaluated

for exposures with respect to chemicals

present in ambient air (both vapors and

particles), soils, groundwater, fruits and

vegetables, beef and dairy products, and

fish. The magnitude of the exposure

received by a receptor is dependant on

the chemical and environmental setting

modeled. The following sections

describe our primary assumptions

regarding the characteristics and

activities of each of the receptor types,

and the routes by which each receptor

is exposed.

Adult Resident and Child of the

Resident. We assume that an adult and

child can reside near the waste

management unit. The residential

receptors inhale vapors and particulate

matter that are dispersed in the ambient

air. We assume that household water is

supplied to the residential receptors by

a private groundwater well that is

located near their home. The adult

resident and the child of the resident,

drink water that comes from the well.

We assume that the adult resident

inhales vapors that are emitted from the

water used for showering. The

residential receptors do not ingest foods

that are grown in the vicinity of their

home, however, they do incidentally

ingest surface soil from their yard.

Groundwater exposures were only

considered for the residential scenario.

It was assumed that contaminated

groundwater was not used for crop

irrigation or stock water for cattle. In

addition, groundwater recharge and

10092 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

subsequent contamination of fish was

not considered. In general, the exposure

to contaminants through the air

pathway and contaminants in the

groundwater occurs at very different

time scales due to the long transport

times associated with most chemicals in

the groundwater medium. For example,

transport of contamination to a receptor

in ambient air can happen within a

matter of hours while transport of

contaminants to a residential well in

groundwater can take hundreds, even

thousands of years. As such, we did not

add together the exposures from both

the air pathway and groundwater

pathway. There were a few organic

constituents where the contaminant did

travel to the receptor well in less than

50 years, however, we did not add

together the exposures from these two

pathways since the receptor locations

for the groundwater and air pathways

are different, therefore adding the

exposures is not appropriate. We did

add together the exposures from

different routes for each receptor. For

example, for carcinogens, we considered

the additive exposure for an adult

resident from ingestion of groundwater

and inhalation of vapors while

showering when it was appropriate.

Adult Farmer and Child of the

Farmer. We assume that a farmer raises

fruits, exposed vegetables, root

vegetables, beef cattle, and dairy cattle

in an agricultural field located near the

waste management unit. Approximately

42 percent of the exposed vegetables, 17

percent of the root vegetables, 33

percent of the exposed fruits, 3 percent

of the protected fruits, 49 percent of the

beef, and 25 percent of the dairy

products eaten by the farmer are grown/

raised on the farmer’s agricultural field.

We assume that the farmer and the child

of the farmer incidentally ingests soil

from his/her yard.

Recreational Fisher. We assume that

the residential receptor may be a

recreational angler. Approximately 33

percent of the fish eaten by the fisher

are from a stream located near the waste

management unit. The fisher’s other

characteristics and activities are the

same as those of the adult resident.

We establish the locations of all the

receptors relative to waste management

units based on information obtained

from previous national surveys. These

surveys are discussed below. Exposure

to groundwater occurs through the use

of water from drinking water wells, and

exposure via non-groundwater

pathways occurs through releases to the

air. Therefore, ‘‘distance to receptor’’ for

the groundwater pathways is the

distance to the drinking water well that

the receptor is using (the ‘‘receptor

well’’). ‘‘Distance to the receptor’’ for

non-groundwater pathways is the

distance to the residence where the

receptor is inhaling air or contacting the

soil or the distance to the field where

the receptor is growing crops or raising

livestock. Consequently, we use

different databases to establish

‘‘distance to receptor,’’ depending on

whether we are evaluating a

groundwater or a non-groundwater

pathway.

For analysis of the air pathways risks

in the deterministic analysis we assume

that the receptors live either 75 meters

(m) (high end) or 300 m (central

tendency) from the waste management

unit. The distance of 250 feet (ft)

(approximately 75 m) is based on the

actual measured distance to the nearest

resident for the worst-case facility

evaluated in the risk assessment

conducted to support the 1990

‘‘Hazardous Waste Treatment, Storage,

and Disposal Facilities-Organic Air

Emissions Standards for Process Vents

and Equipment Leaks Final Rule’’ (55

FR 25454), and was used as distance to

the nearest resident for that rulemaking.

In the same risk assessment, we

identified the receptor distance of 1000

ft (approximately 300 m) as the median

distance in a random sample of

distances to the nearest residence. For

the deterministic analysis, we used the

average air concentration and

deposition values around the

circumference at both 75 m and 300 m.

For the probabilistic analysis, we

identified the distance of 300 m as the

median or central tendency distance

from the WMU to the receptor. We then

used the 75 m distance as a 10th

percentile closest location (high-end)

and created a normal distribution of

receptor distances to sample from. The

lowest and highest receptor distances (0

and 100 percentile) of the distribution

were constrained to be between 50 and

550 m. The distance from the WMU

boundary to the resident location was

randomly selected from this

distribution. In addition, the receptors

in the probabilistic analysis are located

in 16 directions around the entire

circumference (360 degrees) of the waste

management unit.

For evaluating the groundwater

pathway in the deterministic analysis,

we assume that a receptor well is

located 102 m (high end) or 430 m

(central tendency) from the waste

management unit, and that the receptor

well is located on the centerline of the

plume (high end) or halfway between

the centerline and the edge of the

contaminant plume (central tendency).

The 102 m distance is the 10th

percentile value in the distribution of

distances derived from our 1988 survey

of Solid Waste (Municipal) Landfill

Facilities. The 430 m value is the 50th

percentile value in that same

distribution. For the probabilistic

analysis, the distance from the waste

management unit to the receptor well is

based on the complete distribution of

distance to the receptor well reported by

the survey respondents, and ranges from

0.6 m to 1610 m. For the Monte Carlo

analysis we assume that the receptor

well is located anywhere within the

contaminant plume.

The Technical Background Document

for the risk assessment provides a

complete discussion of the values of

additional parameters that define the

characteristics of each receptor, such as

the amounts of contaminated food and

water they ingest, their inhalation rates,

and how long they live near the waste

management unit (i.e., their exposure

duration).

c. How did EPA Quantify Each

Receptors Exposure to Contaminants?

Exposure is the condition that occurs

when a contaminant comes into contact

with the outer boundary of the body,

such as the mouth and nostrils. Once we

establish the concentrations of

contaminants at the points of exposure,

we can estimate the magnitude of each

receptor’s contaminant dose. Dose is the

amount of contaminant that crosses the

outer boundary of the body and is

available for adsorption at internal

exchange boundaries (lungs, gut, skin).

For example, for exposure to a

carcinogen through ingestion of

contaminated drinking water, dose is a

function of the concentration of the

contaminant in the drinking water

(exposure point concentration), as well

as certain exposure factors, such as how

much drinking water the receptor

consumes each day (the intake rate), the

number of years the receptor is exposed

to contaminated drinking water (the

exposure duration), how often the

receptor is exposed to contaminated

drinking water (the exposure

frequency), the body weight of the

receptor, and the period of time over

which the dose is averaged. Our primary

source of exposure factors is the

‘‘Exposure Factors Handbook’’

published by EPA in August 1997. For

probabilistic analyses, we used the

distributions of exposure factor values

provided in the Exposure Factors

Handbook. The one situation where we

do not develop an expression of dose is

the case where we use the Reference

Concentration (RfCs) to estimate

noncancer hazard for the inhalation

exposure route. In this situation, we

calculate noncancer hazard from

concentration of the contaminant in air

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10093

16 ‘‘Compilation of Air Pollutant Emission

Factors,’’ AP–42, Section 13.2.5: Industrial Wind

Erosion, U.S. Environmental Protection Agency,

Office of Air and Radiation and Office of Air

Quality Planning and Standards, September 1995.

17U.S. Environmental Protection Agency, Office

of Solid Waste, State Requirements for Industrial

Non-Hazardous Waste Management Facilities,

October 1995.

and the RfC, without considering

exposure factors other than those

inherent in the RfC (e.g., inhalation rate,

body weight).

Children are an important subpopulation to consider in a risk

assessment because they are likely to be

more highly exposed to contaminants in

the environment than adults. Compared

to adults, children eat more food and

drink more fluids per unit of body

weight. This higher rate coupled with a

lower body weight can result in higher

average daily dose than adults

experience. To evaluate childhood

exposure for this analysis, a child of a

resident and a child of a farmer whose

exposure begins between the ages of 1

and 6 was evaluated. For the

probabilistic assessment, a start age was

randomly chosen between the ages of 1

and 6. The child was then aged for the

number of years defined by the

exposure duration. As children mature,

however, their physical characteristics

and behavior patterns change. To

capture these changes in the analysis,

the life of a child was divided into

several cohorts: Cohort 1 (ages 1–5),

Cohort 2 (ages 6 to 11), cohort 3 (ages

12 to 19), and cohort 4 (ages 20 to 70).

Each cohort has a discrete value (for a

deterministic assessment) and a

distribution (for a Monte Carlo analysis)

of exposure parameters that are required

to calculate exposure to an individual.

The exposure parameter distributions

for each cohort reflect the physical

characteristics and behavior patterns for

that age range.

d. How Did EPA Predict The Release

and Transport of Constituents From a

Waste Management Unit to Receptor

Locations? We conduct contaminant fate

and transport modeling and indirect

exposure modeling to determine what

the concentrations of contaminants will

be in the media that the receptor comes

into contact with. These concentrations

are called ‘‘exposure point

concentrations’’ (that is, they are the

contaminant concentrations at the point

where the receptor is exposed to the

contaminants.) There are a number of

computer-based models and sets of

equations that we use to predict

exposure point concentrations. In the

following sections we briefly discuss

these models and equations and their

application in the risk analyses.

(i) Landfill Partitioning Model. The

landfill model is designed to simulate

the gradual filling of an active landfill

and the long-term releases from the

active and closed landfill cells. The

design assumes that the landfill is

composed of a series of vertical cells of

equal volume that are filled

sequentially. We assumed that each cell

requires one year to be filled. The

formulation of the landfill model is

based on the assumptions that the

contaminant mass in the landfill cells

might be linearly partitioned into the

aqueous, vapor, and solid phases. The

partitioning coefficients are based on

those reported in literature, and are

listed in the risk assessment’s Technical

Background Document. The model

simulates the active lifetime of the

landfill (30 years) and continues

simulating releases until less than one

percent of the initial mass is left or for

a total of 200 years, whichever occurs

first. We assume that the landfill has

minimal controls with no liner and no

daily cover. However, we assumed that

there is no runoff and erosion from the

unit. The cover at closure is a soil cover

that still permits volatilization. We used

the highest 9-year average leachate

concentration predicted by the

partitioning model as input into EPA’s

Composite Model for Leachate

Migration with Transformation Products

(discussed in Section III.E(b)(vii)).

Based on the design assumptions

above, we simulated the annual release

of chemical mass by leaching to the

unsaturated zone underneath the

landfill, volatilization to the air

pathway, and particle emissions to the

air pathway from wind erosion and

truck movement during the active

lifetime. It is assumed that the

contaminant mass emitted as a

particulate from the landfill is sorbed to

particles in the waste. The model

estimates the emission rate of

contaminant mass adsorbed to particle

sizes less than 30 micrometers (μm). The

amount of contaminant mass emitted is

assumed to be distributed between four

particle size categories, 30 to 15 μm

(40%), 15 to 10 μm (10%), 10 to 2.5 μm

(30%), and less than 2.5 μm (20%).16

While the emission control dust may be

comprised primarily of the smaller size

particles, we assumed that the waste

material becomes mixed with other

wastes and soils before being released as

a particulate, therefore the particle size

distribution used for estimating the

particulate releases represent the range

of particles sizes for all the wastes that

may be in a landfill. We did not attempt

to assess possible risks from short-term

releases of unmixed dust particles that

might occur during initial placement of

wastes into the landfill cells. However,

we do not believe such releases are

likely to be significant for several

reasons: (1) Dusts sent to landfills are

typically contained, and are thus

unlikely to cause large scale releases

when placed in a landfill, (2) dust

volumes are relatively small, especially

in comparison to the size of commercial

offsite landfills, and would likely be

covered with other wastes at the landfill

in a short time period, and (3)

significant dusting would be minimized

by both typical operating practices at

landfills (e.g., dust suppressant

activities), as well as regulations

controlling air releases (e.g., see: Federal

regulations for daily cover for municipal

landfills at 40 CFR 258.21; widespread

State requirements for cover at nonmunicipal Subtitle D,17 and

requirements under State

Implementation Plans approved

pursuant to section 110 of the CAA).

In addition, we simulated losses of

mass through both anaerobic and

aerobic biodegradation and hydrolysis

within the landfill. We did not simulate

the transport of constituents from the

landfill as non-aqueous phase liquids

(NAPL’s). However, we do not believe

that the waste streams evaluated for the

landfill scenario will form NAPL’s (see

Section IV E). In addition, due to the

variability of waste stream

characteristics across the paint industry,

it is impossible to know the exact

composition of the waste matrices (e.g.,

the constituents present and the exact

constituent concentrations), therefore,

modeling did not take into account the

effect of managing multiple solvents in

the same waste stream. The

management of multiple solvents in a

waste may create a ‘‘co-solvency effect’’

where the solubility of a solvent may be

increased due to the presence of other

solvents.

The partitioning model incorporates

other assumptions intended to improve

the efficiency of the model. These

assumptions are described in detail in

the risk assessment technical

background document. The assumptions

include the lack of lateral transport

between cells, simulation of only a

single cell and then aggregation of

results based on the time each cell is

filled, and the assumption that waste is

added at a constant concentration at a

constant rate.

(ii) Surface Impoundment Partitioning

Model. The surface impoundment

model simulates the disposal of liquid

wastes in an unlined surface

impoundment and the releases of

chemicals during the lifetime of the

10094 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

unit. The highest 9-year average

leachate concentration is then used as

input into EPA’s Composite Model for

Leachate Migration with Transformation

Products (see section vii) which

estimates the movement of the plume

through the saturated and unsaturated

zone over a 10,000 year time period.

Runoff and erosion from the unit do not

occur because we assume the

impoundment is a sink in the

watershed. We assume that there is no

liner other than native soils and that the

unit is not covered. The model assumes

that the waste in the impoundment

consists of two phases: Aqueous liquid

and sediment. The model does not

simulate any additional phases, such as

non-aqueous phase liquids (NAPL’s).

However, we do not believe that NAPL

formation is likely in the wastes

evaluated for this listing (see Section IV

E). The model simulates the changes at

the bottom of the impoundment over

time as settled solids fill pore space in

native soils and act to reduce chemical

transport to underlying soils and

groundwater. In addition, a fraction of

each surface impoundment is aerated,

which enhances biodegradation and

increases volatilization of some

chemicals. The surface impoundment is

assumed to operate 50 years and then

undergoes clean closure (that is, all the

waste is removed from the unit). Based

on the design assumptions, the surface

impoundment module simulates annual

release of leachate to the unsaturated

zone and volatile emissions to the air.

The model does not account for

redeposition of volatiles into the unit

from precipitation. The model accounts

for several biological, chemical, and

physical processes including hydrolysis,

volatilization, sorption as well as

settlement, resuspension, growth and

decay of solids, activated

biodegradation in the liquid phase (that

is, a higher rate based on the amount of

biomass present) and hydrolysis and

anaerobic biodegradation in the

sediments.

(iii) Tank Emissions Model. The tank

model simulates time-varying releases

of constituents to the atmosphere. The

tank unit only has volatile emissions (no

particulate emissions) and the tank is

assumed to have an impervious bottom

so that there is no contaminant leaching.

The treatment tank is divided into two

primary compartments: a ‘‘liquid’’

compartment and a ‘‘sediment’’

compartment. Mass balances are

performed on these primary

compartments at time intervals small

enough that the hydraulic retention time

in the liquid compartment is not

significantly impacted by the solids

settling and accumulation. In the liquid

compartment, there is flow both in and

out of the WMU. Solids generation

occurs in the liquid compartment due to

biological growth; solids destruction

occurs in the sediment compartment

due to sludge digestion. Using a wellmixed assumption, the suspended

solids concentration within the WMU is

assumed to be constant throughout the

tank. However, some stratification of

sediment is expected across the length

and depth of the WMU so that the

effective total suspended solids (TSS)

concentration within the tank is

assumed to be a function of the WMU’s

TSS removal efficiency rather than

equal to the effluent TSS concentration.

The liquid (dissolved) phase

contaminant concentration within the

tank, however, is assumed to be equal

to the effluent dissolved phase

concentration (i.e., liquid is well

mixed). The tank model does not

consider separate non-aqueous phase

liquid (NAPL) in the tank that might

exist if a constituent is above its

solubility limit. We do not believe that

constituents managed in paint

production waste will have high enough

concentrations in waste waters to form

an oily film layer on top of the tank. As

such, we believe the modeling

performed with this tank model is

appropriate.

(iv) Air Dispersion and Deposition

Model. The atmospheric modeling

performed for this risk assessment

provides annual average estimates of air

concentrations of chemicals released

from the waste management units and

annual deposition rate estimates for

vapors and particles at various receptor

points in the areas of interest. The

chemicals that are emitted are either in

the form of volatilized gases or fugitive

dust. The simulated air concentrations

are used to estimate biological uptake

from plants and human exposures due

to direct inhalation. The predicted

deposition rates are used to determine

chemical loadings to watershed soils,

farm crop areas, and surface waters. The

atmospheric concentration and

deposition of chemicals were

determined through a steady-state

Gaussian plume modeling approach

using the Industrial Source ComplexShort Term (ISCST3) model. Each of the

waste management unit types were

modeled as an area source with ISCST3.

ISCST3 provides hourly meteorological

data and estimates of contaminant

concentration, dry deposition (particles

only) and wet deposition (particles and

gases) for user-specified averaging

periods. Dry deposition of vapors was

also calculated, but outside the

dispersion model. Annual averaging

periods were used for this analysis.

These long averaging times are

consistent with the use of chronic

benchmarks in this analysis. The

dispersion model uses information on

meteorology (e.g., wind speed and

direction, temperature) to estimate the

movement of constituents through the

atmosphere. Modeling was conducted

using five years of hourly data obtained

from 49 representative meteorological

stations throughout the country.

Meteorological stations were selected

based on the location of paint

manufacturing facilities.

Currently, algorithms specifically

designed to model the dry deposition of

gases have not been verified for the

specific compounds in question

(primarily volatile organics). In place of

algorithms, we used a transfer

coefficient to model the dry deposition

of gases. A concern with this approach

is that the deposition is calculated

outside the model. As a result, the mass

that we estimate deposits on the ground

from the plume is not subtracted from

the air concentrations estimated by

ISCST3. This results in a slight nonconservation of the mass in the system.

Due to the complexity of the analysis,

it was not computationally feasible to

run ISCST3 on an hourly basis for the

lifetime of all the unit configurations.

To reduce the computational burden,

we made several simplifications to the

air modeling. The dispersion model is

sensitive to the surface area of the waste

management unit. In order to make the

dispersion modeling computationally

feasible, we divided the different waste

management unit configurations into

area-based bins that represented the

distribution of surface areas for each of

the waste management unit types. For

each waste management unit type, the

median area for each bin was input into

ISCST3 and modeled at each of the 49

meteorological stations. For tanks, each

area-height combination was modeled

for each of the 49 meteorological

locations. For any specific unit, the

median air concentration and

deposition values for the bin that most

closely represented the specific unit’s

surface area was used. Another

simplification used in the dispersion

modeling is that a scavenging coefficient

for all gases was used based on

approximating the gases as very small

particles. This approach eliminates the

need for running ISCST3 for each

specific chemical, thus reducing the

overall runtime. This simplification

might lead to underprediction of wet

deposition for some gases and overprediction for others depending on the

Henry’s Law coefficient of the gas.

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10095

(v) Overland Transport Model.

Addition of constituents to soils, called

constituent loading, can result from

atmospheric deposition and overland

movement of constituents. The primary

loading mechanisms of constituents

onto soils is by wet and dry deposition

predicted with the dispersion model.

This constituent deposition was

predicted based on the average air

concentration and deposition flux for

both the buffer area and the agricultural

field. We assumed that there was no

erosion and runoff from the WMU to the

surrounding soils since we assumed that

the landfill and surface impoundment

were below grade. However, erosion and

runoff (overland transport) were

evaluated to predict the movement of

deposited contaminants onto

agricultural fields and into nearby water

bodies. Five constituent losses in the

surface soils were considered: (1)

Leaching of the chemical due to

precipitation; (2) erosion of the

chemical laterally along with the soil

due to water; (3) runoff of the dissolved

chemical with the lateral flow of water;

(4) biodegradation of the chemical in

situ; (5) volatilization losses of the

chemical. The Universal Soil Loss

Equation (USLE) was used to estimate

soil erosion losses. The USLE is an

erosion model originally designed to

estimate long-term average soil erosion

losses from an agricultural field having

uniform slope, soil type, vegetative

cover, and erosion-control practices. We

used a modified form of the USLE to

estimate the mass of soil lost per year

per unit from the soils around the waste

management unit and deposited in the

runoff directly onto the receptor site

(agricultural field and residential lot)

and into a nearby stream. We assume

the receptor location is between the

waste management unit and the surface

water body. The area around the waste

management unit is considered for the

purposes of our analysis to be an

independent, discrete drainage subbasin

that is at steady-state. We estimate the

soil erosion load from the subbasin to

the surface water body using a distancebased sediment delivery ratio, and

consider that the sediment not reaching

the surface water body is deposited

evenly over the area of the subbasin.

Using equations, we estimate

contaminant contributions to the surface

water body and the receptor soil. Soils

were characterized within a 20 mile

radius around each meteorological

station using data obtained from the

1994 U.S. Department of Agriculture’s

State Soil Geographic Data Base and

other relevant sources that are described

in Appendix I of the risk assessment’s

Technical Background Document.

(vi) Surface Water Model. We assume

that fish are exposed to waste

constituents in surface water.

Specifically our modeling assumes that

fish are exposed to contaminants in the

water column, contaminants sorbed to

suspended solids in the water column,

and contaminants associated with the

bed sediment in the surface water body.

The beef cattle and dairy cows are

exposed to both dissolved and

suspended constituent concentrations in

the surface water. The model accounts

for four ways in which contaminants

may enter the surface water body: (1)

Contaminants may be sorbed to eroded

soils that enter the surface water body,

(2) contaminants may be dissolved in

runoff that enters the surface water

body, (3) contaminants may be bound to

airborne particles that are deposited on

the surface water body, and (4) vapor

phase contaminants in air may be

deposited on the surface water body in

precipitation (that is, wet deposition of

vapor phase contaminants). The model

also accounts for processes that remove

contaminants from the surface water

body. These include: (1) Volatilization

of contaminants that are dissolved in

the surface water body and (2) burial of

contaminants in the sediment at the

bottom of the surface water body. The

model assumes that the impact to the

water body is uniform, which is more

realistic for smaller water bodies than

for larger ones. The model estimates the

concentrations of contaminants in the

water column and bed sediment. We

used the water column or bed sediment

concentrations and bioconcentration

factors or bioaccumulation factors. The

water body used in this analysis is a

stream located down gradient of the

WMU. Depending on the receptor

scenario that is evaluated, the stream is

either adjacent to the buffer area (the

area that separates the WMU from the

human receptor locations) or is located

adjacent to the agricultural field on the

side farthest from the WMU. For

modeling purposes, the stream is

shaped as a rectangle 5.5 m wide and as

long as the width of the agricultural

fields. The assumption is that the stream

is a typical third-order fishable stream.

The stream segment modeled in this

assessment is assumed to be

homogeneously mixed with a depth of

0.21 meters (including water column

and benthic sediments) and has a flow

of 0.5 m/s. This stream is the smallest

water body that would routinely

support recreational fishing of

consumable fish. Because we modeled a

small stream with a constant flow rate,

the stream scenario is a conservative

(environmentally protective) estimate of

the constituent concentration in a

surface water body that results from soil

runoff and air deposition.

(vii) Groundwater Model. We used

EPA’s Composite Model for Leachate

Migration with Transformation Products

(EPACMTP) to model the subsurface

and transport of contaminants that leach

from the waste management units

(landfills and surface impoundments)

and migrate to a residential drinking

water well. We assume that the soil and

aquifer are uniform porous media and

that flow and transport is described by

Darcy’s law and the advectiondispersion equation, respectively.

EPACMTP accounts for the following

processes affecting contaminant fate and

transport: Advection, hydrodynamic

dispersion, equilibrium sorption by the

soil and aquifer solids (both in the

unsaturated and saturated zones), and

contaminant hydrolysis. EPACMTP

does not account for preferential

pathways such as fractures, macropores,

or facilitated transport (i.e., any

chemical process that has the potential

to speed the transport of a pollutant

beyond what is expected), which may

increase the migration of constituents.

The groundwater pathway consists of

two components: Flow and transport in

the vadose zone (that is, the unsaturated

zone directly below the unit), and flow

and transport in the saturated zone. The

primary transport mechanisms in the

subsurface are downward movement

along with infiltrating water flow in the

unsaturated zone and movement along

with ambient groundwater flow in the

saturated zone. The advective

movement in the unsaturated zone is

one-dimensional, while the saturated

zone module accounts for threedimensional flow and transport. The

model also considers mixing due to

hydrodynamic dispersion in both the

unsaturated and saturated zones. In the

unsaturated zone, flow is gravity-driven

and prevails in the vertically downward

direction. Therefore, the flow is

modeled in the unsaturated zone as onedimensional in the vertical direction. It

is also assumed that transverse

dispersion (both mechanical dispersion

and molecular diffusion) is negligible in

the unsaturated zone. This assumption

is based on the fact that lateral

migration due to transverse dispersion

is negligible compared with the

horizontal dimensions of the WMUs. In

addition, this assumption is

environmentally protective because it

allows the leading front of the

constituent plume to arrive at the water

table with greater peak concentration.

10096 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

18Norris, C.H. and C.E. Hubbard, 1999. Use of

MINTEQA2 and EPACMTP to estimate groundwater

pathway risks from the land disposal of metalbearing wastes. Prepared for Environmental Defense

Fund, Friends of the Earth, Hoosier Environmental

Council, and Mineral Policy Center.

19We are aware that health benchmarks for

several constituents of concern or potential

constituents of concern are currently being

reevaluated in IRIS. Reviewers should note that if

the IRIS health benchmarks change, the Agency

would likely use the most current benchmarks as

the basis for setting concentration levels.

In the saturated zone, the movement

of constituents is primarily driven by

ambient groundwater flow, which in

turn is controlled by a regional

hydraulic gradient and hydraulic

conductivity in the aquifer formation.

The model does take into account the

effects of infiltration from the waste

source as well as regional recharge into

the aquifer. The effect of infiltration

from the waste source is to increase the

groundwater flow in the horizontal

transverse and vertical directions

underneath and in the immediate

vicinity of the waste source as may

result from groundwater mounding.

This three-dimensional flow pattern

will enhance the horizontal and vertical

spreading of the plume. The effect of

regional recharge outside of the waste

source is to cause a downward dip in

the movement of the plume as it moves

in the downgradient groundwater flow

direction.

In addition to advective movement

along with groundwater flow, the model

simulates mixing of contaminants with

groundwater due to hydrodynamic

dispersion, which acts in the

longitudinal, (i.e., along the

groundwater flow direction), as well as

in horizontal and vertical transverse

directions. The rate of movement of

contaminants may be strongly affected

by sorption reactions in both the

unsaturated and saturated zone. The

effect of sorption is expressed in a

retardation factor, which is directly

related to the magnitude of the

constituent-specific KD value (K.C. in the

case of organdies). Constituents with a

zero or low KD (or K.C.) value will have

a retardation factor of 1, or close to it,

which indicates that they will move at

the same velocity as the groundwater, or

close to it. Constituents with high KD

values, such as certain semi volatile

organic constituents and many metals,

will have high retardation factors and

may move many times slower than

groundwater. EPA has sometimes used

the MINTEQA2 equilibrium speciation

model to estimate Kd’s for a variety of

metals rather than relying solely on field

measurements. However, recently a

number of technical issues have been

raised concerning the model and its

application.18 EPA is in the process of

evaluating the model to address those

issues. Therefore, we have decided not

to use MINTEQA2 for today’s proposed

rule. Once the evaluation is completed

and the issues are satisfactorily

resolved, EPA may again choose to use

the model in an appropriate form in

future rulemakings. For today’s

proposed rule, we used values for metal

Kd’s that have been derived from field

studies and have been published in the

scientific literature. An empirical

distribution was used to characterize the

variability of Kd for chemical

contaminants for which sufficient

published data were available. However,

for chemical contaminants having

relatively few published values, a log

uniform distribution was used in which

a three log unit (three orders of

magnitude) expansion was made around

the geometric mean of the data. This

was done to better account for the

variability most often seen in

measurements of Kd and to capture the

uncertainty that comes from having

limited data. Our use of empirically

derived partition coefficients assumes

that sorption is linear with respect to

concentration (i.e., the Kd isotherm is

linear). However, sorption is not

unlimited and will tend to level off as

groundwater concentrations increase

beyond the linear range (i.e., Kd

isotherm becomes non-linear). This

condition is most likely to occur in the

unsaturated zone where dilution is

limited, if leachate concentrations are

sufficiently high.

(viii) Indirect Exposure Methodology.

We use a series of ‘‘indirect exposure

equations’’ to quantify the

concentrations of contaminants that

pass indirectly from contaminated

environmental media to the receptor.

For example, contaminants that are

transported in air may be deposited on

plants or onto the soil where they may

accumulate in forage, grain, silage, or

soil that is consumed by beef cattle and

dairy cattle. Individuals may then ingest

contaminated beef and dairy products.

Similarly, contaminants may be

transported in groundwater to domestic

groundwater wells where the

groundwater is extracted and used for

showering. The water vapor generated

in the shower may be inhaled by the

receptor. The indirect exposure

equations allow us to calculate exposure

point concentrations for these pathways

and routes of exposure. The indirect

exposure equations we use to conduct

this risk assessment are presented in the

Technical Background Document for the

risk assessment.

e. What Is The Human Health

Toxicity of COC’s Identified by EPA? To

characterize the risk from human

exposures to the constituents of

concern, toxicity information on each

COC is integrated with the results of

exposure assessment. Chronic human

health benchmarks were used in this

risk assessment to evaluate potential

noncancer and cancer risks. We use

reference doses (RfDs) and reference

concentrations (RfCs) to evaluate

noncancer health impacts from oral and

inhalation exposures, respectively. Oral

cancer slope factors (CSF’s), inhalation

unit risk factors, and inhalation CSFs

are used to evaluate risk for carcinogens.

The benchmarks are chemical-specific

and do not vary between receptors (i.e.,

residents, farmers, recreational fishers)

or age groups. We use several sources to

obtain human health benchmarks.

Health benchmarks for this risk

assessment were obtained primarily

from the most recent Integrated Risk

Information System (IRIS) and the most

recent Health Effects Assessment

Summary Tables (HEAST). IRIS and

HEAST are maintained by EPA, and the

values from IRIS and HEAST were used

in this analysis whenever available 19. If

IRIS or HEAST chronic benchmarks

were not available, we sought

benchmarks from alternative sources.

Provisional EPA benchmarks, Agency

for Toxic Substances and Disease

Registry minimal risk levels, California

Environmental Protection Agency

(CalEPA) chronic inhalation reference

exposure levels, and CalEPA cancer

potency factors were used when values

were not available from IRIS and

HEAST. The benchmark for lead is

unique. Instead of using the benchmarks

described above, the Office of Solid

Waste and Emergency Response

(OSWER) soil screening level of 400

ppm was used as the benchmark for the

air pathways in this analysis. The SSL

number developed by OSWER accounts

for all identified sources of lead

exposure (including background). The

soil screening level was derived by

predicting the concentration of lead that

can be in soils in a child’s play area

such that a typical child would have an

estimated risk of no more then 5% of

exceeding a 10 ug/dL blood lead level.

In addition, the EPA’s drinking water

action level for lead of 0.015 mg/L was

used for the groundwater pathway. We

also used a drinking water action level

for the groundwater pathway analysis

for copper since an ingestion benchmark

was not available.

Appendix Q of the Risk Assessment

Technical Background Document

contains the toxicological profiles used

in our analysis. The studies used as the

basis for each of these benchmarks have

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10097

20Reviewers should note that inputs used in he

modeling to support today’s proposal may change,

and minor modifications to the model itself may be

made as a result of ongoing internal quality

assurance/quality control reviews, internal peer

review and public comments. As a consequence,

the proposed constituent levels may change as well.

Reviewers should bear in mind that levels that

increase or decrease sufficiently could result in

adding or deleting constituents from the listing,

based on whether the risk-based levels are likely to

occur in paint production wastes.

21 ‘‘Guidance on Risk Characterization for Risk

Managers and Risk Assessors’’, by then Deputy

Administrator F. Henry Habicht, 1992.

22The distributions are distributions of

concentrations that when found in paint production

wastes will generate risks of 10–5 or an HQ of 1 for

individuals living closest to paint manufacturing

waste facilities. The ‘‘90th percentile’’ then is the

concentration in paint manufacturing waste at

which 90% of the individuals living closest to paint

manufacturing waste management facilities will be

protected to these levels.

been reviewed and summaries of these

studies, along with reference to the

complete studies, are presented in

Appendix Q of the Risk Assessment

Background Document.

f. What Are The Results From The

Risk Assessment? We developed

concentration limits based on the

following waste management unit/waste

stream combinations:

• Emission control dust managed in a

landfill.

• Combined volumes of emission

control dust, sludges from waste water

treatment, and solid off-specification

production wastes (called ‘‘combined

solids’’ in the results table) going to a

landfill.

• All waste waters managed in a

surface impoundment.

• All waste waters managed in tanks.

For the landfill and surface

impoundment scenarios we have riskbased concentration limits for the air

and groundwater pathways. We

assumed that tanks were sufficiently

impermeable that they were highly

unlikely to release sufficient volumes of

waste to pose an unacceptable

groundwater risk that therefore it was

not necessary to develop risk-based

concentrations for the groundwater

pathway. Other than mercury, the air

pathway is not relevant for metals

managed in waste waters because of

their low volatility.

The small waste volumes generated

by the paint and coatings manufacturing

industry resulted in most of the

potential constituents of concern not

creating an unacceptable risk. For

example, the central tendency waste

volume for emission control dust is 2.44

m3 annually (approximately 644

gallons). When compared to the central

tendency capacity of a landfill cell (the

annual capacity of a landfill over a 30

year life), the landfill cell is more than

1000 times larger. This results in a

thousand fold dilution effect for the

leachate when waste is placed in a

landfill. Another way to put the waste

volumes into perspective is to consider

that the central tendency emission

control dust waste volume reported by

the paint and coating facilities

comprises only 0.07% of the capacity of

a median sized landfill.

Most of the constituents screened out

of the air pathway because the predicted

concentration limits were either greater

than 1 million parts per million

(physically impossible) or greater than

what the EPA expects to be managed in

paint manufacturing wastes.

Specifically, out of the 43 constituents

evaluated in both the landfill and

surface impoundment scenarios, only 5

had air pathway concentration limits

below 1 million parts per million (ppm).

In the tank scenario, only 3 constituents

had protective waste concentrations that

were below 1 million ppm.

Table III.E–2 shows the calculated

risk-based concentration levels for all

the possible constituents of concern in

each of the waste stream scenarios

evaluated20. The results are the total

concentration in either mg/kg for solids

(landfills) or mg/L for liquids (surface

impoundments and off-site tanks) that

can be managed in the units and remain

protective of human health. The

concentration levels in Table III.E–4

represent the probabilistic results at the

90th percentile risk level based on

individuals living closest to the waste

management unit. In other words, these

concentration numbers meet a target

cancer risk level of 10–5 or hazard

quotient of 1 for 90% of the receptor

scenarios we evaluated. As discussed

previously, we are attempting to

calculate estimates of exposure in the

upper end of the distribution (i.e., above

90th percent), while avoiding estimates

that are beyond the true distribution.

EPA guidance for risk characterizations

states that ‘‘the ‘high end’ of the risk

distribution (generally the area of

concern for risk managers) is

conceptually above the 90th percentile

of the actual (either measured or

estimated) distribution. This conceptual

range is not meant to precisely define

the limits of this descriptor, but should

be used by the assessor as a target range

for characterizing ‘high-end risk’.21’’

Therefore, a high-end estimate that falls

within the range (at or above the 90th

percentile but still realistically on the

distribution) is a reasonable input to a

decision.22

We are soliciting comment on our use

of the 90th percentile risk level, rather

than other high-end risk levels, such as

the 95th percentile, to set the regulatory

concentration. If we used the 95th

percentile results, the calculated listing

levels would be about a factor of 3

lower. In addition, if we used the 95th

percentile results, we would consider

adding an additional constituent in the

listing for liquid wastes (methanol; see

Section IV.A for a list of the constituents

we are proposing for listing). Details of

the levels calculated using the 95th

percentile are given in the Technical

Background Document for the risk

assessment.

In this listing we are proposing to set

the levels at the 90th percentile, because

we believe that the 90th percentile

levels are protective. We have limited

information on constituent levels in

wastes because, for the reasons stated

earlier, we did not sample waste

streams. Thus, we do not know with any

certainty that a large fraction of paint

production wastes will be close to the

levels derived from either the 90th or

95th percentile. Based on the limited

data from our survey of the industry, we

expect that many of the paint

production wastes generated will not

approach these concentrations, but will

likely be well below the proposed

listing levels. Thus, we think that the

paint production waste that would

remain nonhazardous at the proposed

levels would pose risks below that

indicated by the benchmark risk-level at

either the 90th or 95th percentile.

We are proposing to establish a

concentration-based listing that sets a

threshold level below which wastes

would not be considered hazardous.

This is different from the usual listing

determinations we have made in the

past. In a traditional listing, all wastes

meeting the listing description are

regulated as hazardous, with no

provision to test for levels of hazardous

constituents present. In a traditional

listing, if we determined not to list a

waste, then all of the waste would go

unregulated and the risk remains

unaffected. A concentration-based

listing, however, would regulate the

higher risk wastes and potentially leave

lower risk wastes unregulated. This

means that by setting the listing levels

at the 90th percentile, we are ensuring

that the residual risk for the unregulated

wastes would likely be below the risk

associated with the risk based on an

assessment of all wastes. Therefore, we

believe that using the 90th percentile

levels to set the listing levels is

appropriate for this concentration-based

listing. Note that we also recently

proposed to use the 90th percentile risk

levels to set listing levels in the listing

for two wastes from the dyes and

pigments industries (64 FR 40192, July

10098 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

23, 1999); this was also a concentrationbased listing that established a

threshold, below which wastes would

not be listed. For traditional listing

decisions, we considered a range of

high-end risk results, including a range

of probabilistic results at or above the

90th percentile, e.g., see the proposed

listings for wastes from the production

of chlorinated aliphatics (64 FR 46476,

August 25, 1999) and inorganic

chemicals (65 FR 55684, September 14,

2000).

TABLE III.E–4.—CALCULATED RISK-BASED CONCENTRATION LEVELS FOR POSSIBLE CONSTITUENTS OF CONCERN IN PAINT

AND COATINGS WASTE 1

Constituents

Emission control dust

(mg/kg)

Combined solids

(mg/kg)

Waste waters in surface impoundments

(mg/L)

Waste

waters in

off-site

tanks

(mg/L)

Air

pathway

Groundwater

pathway

Air

pathway

Groundwater

pathway

Air

pathway

Groundwater

pathway

Acrylamide .......................................................................... E 3.1E+02 E 4.7E+02 2.3E+05 1.2E+01 E

Acrylonitrile ......................................................................... 1.3E+05 4.3E+01 1.7E+05 6.0E+01 1.9E+04 9.3E+00 6.9E+04

Antimony ............................................................................. E 2.3E+03 E 3.2E+03 M 3.9E+02 M

Barium ................................................................................ E E E E ME M

Benzene .............................................................................. 6.3E+05 3.1E+04 7.9E+05 4.7E+04 1.0E+05 5.6E+02 1.9E+05

Butylbenzylphthalate ........................................................... E L E L E E E

Cadmium ............................................................................ E 1.3E+05 E 2.8E+05 M 3.9E+04 M

Chloroform .......................................................................... E 6.0E+05 E E E 1.5E+02 E

Chromium III ....................................................................... E E E E ME M

Chromium VI ....................................................................... E 6.8E+04 E 6.6E+04 M 8.8E+03 M

Cobalt ................................................................................. E E E E ME M

Copper ................................................................................ E E E E ME M

Cresol, m ............................................................................ EEEEE 2.2E+04 E

Cresol, o- ............................................................................ EEEEE 2.5E+04 E

Cresol, p- ............................................................................ EEEEE 2.6E+03 E

Di(2-ethylhexylphthalate) .................................................... E L E L E E E

Dibutylphthalate .................................................................. E L E L E E E

Dichloromethane ................................................................. E 2.4E+05 E 3.3E+05 E 4.5E+03 E

Dimethylphenol 2,4- ............................................................ EEEEE 1.7E+04 E

Divalent mercury ................................................................. 6.0E+05 E 8.7E+05 E 2.5E+04 6.4E+05 E

Ethylbenzene ...................................................................... E L E L E 1.1E+04 E

Ethylene glycol ................................................................... EEEEE 7.9E+05 E

Formaldehyde ..................................................................... E 9.3E+05 E E E 8.2E+04 E

Lead .................................................................................... E E E E ME M

Mercury ............................................................................... 1.6E+05 E 2.1E+05 E 5.9E+03 E 1.0E+04

Methanol ............................................................................. EEEEE 2.0E+05 E

Methyl ethyl ketone ............................................................ E 1.5E+05 E 2.2E+05 E 8.2E+03 E

Methyl isobutyl ketone ........................................................ E 7.3E+04 E 1.2E+05 E 3.4E+02 E

Methyl methacrylate ........................................................... E 2.8E+04 E 4.1E+04 E 2.1E+03 E

N-butyl alcohol .................................................................... E 9.7E+05 E E E 4.1E+04 E

Nickel .................................................................................. E E E E ME M

Nickel oxide ........................................................................ E B E B MB M

Pentachlorophenol .............................................................. E 9.6E+04 E 1.6E+05 E 1.0E+04 E

Phenol ................................................................................. EEEEE 2.7E+05 E

Selenium ............................................................................. E 2.5E+04 E 3.4E+04 M 6.1E+03 M

Silver ................................................................................... E E E E ME M

Styrene ............................................................................... EEEEE 4.6E+03 E

Tetrachloroethylene ............................................................ E 1.4E+04 E 2.1E+04 E 4.8E+02 E

Tin ....................................................................................... E E E E ME M

Toluene ............................................................................... EEEEE 1.2E+03 E

Vinyl acetate ....................................................................... E G E G E G E

Xylene (mixed isomers) ...................................................... E L E L E 3.9E+03 E

Zinc ..................................................................................... E E E E ME M

1 Levels represent the 90th percentile protective waste concentration derived from the probabilistic analysis.

L = screened out of the groundwater due to no leachate.

E = risk-based waste concentration exceeds 1 million (1E+06) parts per million.

B = screened out of the pathway due to a lack of a human health toxicity benchmark.

M = not included in the risk analysis for that pathway since the constituent is a non-volatile metal.

g. What Is The Uncertainty in Human

Health Risk Results? Uncertainty is a

description of the imperfection in

knowledge of the true value of a

particular parameter. This risk

assessment has inherent limitations that

lead to uncertainty in our risk estimates

because of the complexity associated

with simulating the behavior of a

chemical moving through the

environment from disposal in a

management unit, to exposure points in

various environmental media, and

subsequent impacts on receptors. As

explained below, limitations also result

from the amount, type, and quality of

the data used in our assessment, the set

of exposure pathways evaluated, and

the types of waste management units

considered. Because of the number of

facilities that manufacture paint and

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10099

coatings, it was not feasible for us to

directly measure data such as facility/

site characteristics (for example, unit

area and volume; depth to groundwater;

aquifer thickness; hydraulic

conductivity; location of wells; type of

ecological receptors; behavioral

characteristics of receptors) at each

representative site to estimate risk.

This section discusses the major areas

of uncertainty in risk assessments as

classified by the EPA: scenario

uncertainty, model uncertainty, and

parameter uncertainty.

(a) Scenario uncertainty results from

the assumptions we make regarding

how receptors become exposed to

contaminants. This uncertainty occurs

because of the difficulty and general

impracticality of making actual studies

of all activities involved in the

management of a waste and the human

activities that occur around the waste

management unit.

• This risk assessment does not consider

the additive risk from exposure to multiple

constituents. Chemical mixtures can display

both synergistic and antagonist behavior with

regard to risk. In general, however, the

overall risks of a mixture are very likely to

be greater than that of exposure to a single

chemical. Therefore not adding exposures

across the chemicals is an area of uncertainty

that leads to an underestimate of total risk.

We did not calculate the additive effects from

multiple-chemical exposure since there was

not information on the concentrations or comanagement of particular constituents. In

addition, for a concentration based listing it

is not reasonable to set standards for a

constituent that are developed based on the

assumed presence of other constituents that

have the same health affect. Whether or not

a particular chemical mixture poses an

additive risk or hazard depends on the targets

(tissue, organ, or organ system), the

concentrations of all the constituents in the

mixture, and the mechanisms of action of the

individual chemicals. Without information

on the co-management of constituents, it was

not feasible to consider additive risks.

• In certain cases, EPA performs a risk

assessment on wastes that contain

contaminants that also are present in the

environment as a result of both natural

processes and anthropogenic activities.

Under these circumstances, receptors

potentially receive a ‘‘background’’ exposure

that may be greater than the exposure

resulting from release of contaminants from

the waste. For national analysis like this

assessment, the inclusion of background

concentrations as part of the analysis is not

feasible due to (a) the variability of

background concentrations nationwide and

(b) the lack of data on national background

concentrations for each constituent.

(b) Parameter uncertainty occurs

when (1) there is a lack of data about the

parameters used in the equations, (2) the

data that are available are not

representative of the particular instance

being modeled, or (3) parameter values

cannot be measured precisely and/or

accurately because of limitations in

measurement technology. Random, or

sample errors, are a common source of

parameter uncertainty that is especially

critical for small sample sizes. More

difficult to recognize are nonrandom or

systematic errors that result from bias in

sampling, experimental design, or

choice of assumptions.

• The age of several of the databases used

in this analysis to characterize the waste

management units or the location of the

receptors leads to uncertainty in the analysis.

These databases contain information

collected by the EPA in several surveys

during the mid- to late 1980’s. While these

databases represent the best available

information the Agency had at the time of

this analysis, uncertainty exists in the

analysis on changes in waste management

practices or residential locations that may

have occurred during the past decade. The

uncertainty associated with these data may

lead to an over or under estimate of risk.

• The sorption coefficient, Kd, which is

used in the source partition model, the

groundwater model, and in modeling

constituent concentration in surficial soils, is

an important parameter for modeling the fate

and transport of metals in the environment.

In previous analyses, Kd values were

calculated using MINTEQ but, because of

comments on the validity of some of the data

upon which MINTEQ calculations are based,

EPA decided, for this analysis, that Kd values

would be derived from literature values. A

comprehensive review of the literature was

undertaken to compile Kd data for an earlier

rulemaking (Inorganic Chemicals Listing

Determination, 65 FR 55684, September 14,

2000.) Despite this substantial earlier effort,

considerable uncertainty remains in the

literature-based values of Kd used in this

analysis because data concerning Kd values

for particular constituents reported in the

literature were limited. In addition, reported

values often were not accompanied by

qualifying information. Conditions that affect

Kd values (e.g., constituent concentration,

metal species evaluated, pH, experimental

technique) are often not reported in the

literature making interpretation of results

difficult. For these reasons, substantial

uncertainty concerning the values of Kd

remain.

• Very little data were available on the

physical and chemical characteristics of

paint manufacturing waste. To address this,

assumptions on the waste characteristics are

based on general knowledge of paint and

other similar industrial wastes. In this

analysis, except for constituent

concentration, which was calculated, EPA

assumes that the paint manufacturing waste

is mixed with other generic industrial wastes.

Therefore, general waste characteristics,

including default assumptions for the waste

parameters (e.g., fraction of organic carbon,

pH), were used.

• We used waste volume data in this risk

assessment provided by the facilities as part

of our RCRA 3007 survey. Since the survey

was not a census, there is some uncertainty

associated with the waste volume

distribution. This uncertainty may lead to an

over or under estimate of risk.

• We typically use regional databases to

obtain the parameter values necessary to

model contaminant fate and transport.

Because the data that we used are not

specific to the facilities at which the actual

wastes are managed, the data represent our

estimates of the generic site conditions. For

an analysis where waste management

locations are so variable, we believe this type

of approach is reasonable and is the best

method to address the fate and transport of

constituents. Nevertheless, the use of these

databases in lieu of site-specific data may

result in either overestimates or

underestimates of risk.

• Sources of uncertainty in toxicological

benchmarks include one or more of the

following: extrapolation from laboratory

animal data to humans, variability of

response within the human population,

extrapolation of responses at high

experimental doses under controlled

conditions to low doses under highly

variable environmental conditions, and

adequacy of the database (number of studies

available, toxic endpoints evaluated,

exposure routes evaluated, sample sizes,

length of study, etc.). Toxicological

benchmarks are designed to be conservative

(that is potentially overestimate risk) because

of the uncertainties and challenges associated

with condensing toxicity data into a single

quantitative expression. Uncertainty factors

are applied to address limitations of the

available toxicological data and are necessary

to ensure the RfD or RfC is protective of

individuals in the general population. The

use of uncertainty factors is based on longstanding scientific practice. Uncertainty

factors, when combined commonly range

from 10 to 1000 depending on the nature and

quality of the underlying data. The RfD/RfC

methodology is expected to have an

uncertainty spanning perhaps an order of

magnitude.

• We recognize that significant

uncertainties and unknowns exist regarding

the estimation of lifetime cancer risks in

children. We estimated the risk of developing

cancer from the estimated lifetime average

daily dose and the slope of the dose-response

curve. A cancer slope factor is derived from

either human or animal data and is taken as

the upper bound on the slope of the doseresponse curve in the low-dose region,

generally assumed to be linear, expressed as

a lifetime excess cancer risk per unit

exposure. However, individuals exposed to

carcinogens in the first few years of life may

be at increased risk of developing cancer.

• The non-cancer toxicological effects in

children is also an area of uncertainty. Noncancer reference doses and reference

concentrations for children are based on

comparing childhood exposure, for which we

have age-specific data, with adult toxicity

measures, where adequate age-specific doseresponse data is lacking. This mismatch

results in a large amount of uncertainty in the

estimation of hazard quotients for children.

This would sometimes result in an

overestimation of children’s risk and

sometimes in an underestimation. This issue

10100 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

is still under investigation in the scientific

community and no consensus has been

reached.

(c) Model uncertainty is associated

with all models used in all phases of a

risk assessment, because models and

their mathematical expressions are

simplifications of reality that are used to

approximate real-world conditions and

processes, and their relationships.

Computer models are simplifications of

reality, requiring exclusion of some

variables that influence predictions but

cannot be included in models due either

to increased complexity or to a lack of

data on a particular parameter. Models

do not include all parameters or

equations necessary to express reality

because of the inherent complexity of

the natural environment, and the lack of

sufficient data to describe the natural

environment. Because this is a

probabilistic assessment that predicts

what may occur with the management

of certain paint manufacturing wastes

under assumed scenarios, it is not

possible to compare the results of our

models to any specific situation that

may exist. The risk assessor needs to

consider the importance of excluded

variables on a case-by-case basis

because a given variable may be

important in some instances and not in

others. A similar problem can occur

when a model that is applicable under

average conditions is used for

conditions that differ from the average.

In addition, in some instances choosing

the correct model form is often difficult

when conflicting theories seem to

explain a phenomenon equally well. In

other instances, the Agency does not

have established model forms from

which to choose to address certain

phenomena, such as facilitated

transport. We selected models used in

this risk assessment based on science,

policy, and professional judgement.

Most of the models selected have been

verified and some have been validated.

In addition, most of these models have

been peer reviewed. These models were

selected because they provide the

information needed for this analysis and

because we generally consider them to

be state-of-the-science. Even though the

models used in the risk analyses are

used widely and have been accepted for

numerous applications, they each retain

significant sources of uncertainty.

Evaluated as a whole, the sources of

model uncertainty in our analysis could

result in either an overestimation or

underestimation of risk. Specific areas

of modeling uncertainty in this analysis

are:

• There were constituents identified as

materials used in paint manufacturing that

were not modeled in this risk assessment due

to a lack of information on how they behave

when introduced to the environment. Our

fate and transport modeling is limited to

those constituents for which we have (1) the

physical/chemical parameters necessary to

run our models and (2) adequate information

on toxicity to understand potential health

impacts from exposure. In selecting

constituents of concern, we found multiple

constituents that were complex inorganic

compounds containing more than one metal

of concern and organometallic compounds

(compounds containing both a metal and

organic constituents) that can be used in

manufacturing paint. For example,

compounds such as lead chromate molybdate

and lead naphthenate may be used as

ingredients in paint. An adequate set of both

the physical/chemical parameters and

toxicity information for modeling fate and

transport and predicting risk to human health

are lacking for these metal complexes. The

technical background document for the risk

assessment contains the information we

found on a set of organometallics. Due to this

absence of data, we simulate the risk

presented by these multiple compounds by

modeling the ionic form of the metal. For

example, the model predictions for lead are

used to represent the complex lead inorganic

metal compounds and lead organometallic

compounds that may be used in paints. Since

so little is known about these complex metal

compounds and what their fate may be in the

environment, our modeling may over or

under-estimate the actual risks. In addition,

for metals transformations may take place as

the pH of the waste or media can change the

state of the metal, sometimes to a less toxic

form and sometimes to a more toxic form.

The risk assessment did not model

transformation products or changes in metal

species.

• Exposure modeling relies heavily on

default assumptions concerning population

activity patterns, mobility, dietary habits,

body weights, and other factors. There are

some uncertainties associated with some of

the data used for these parameters. Although

it is possible to study various populations to

determine various exposure parameters (e.g.,

age-specific soil ingestion rates or intake

rates for food) or to assess past exposures

(epidemiological studies) or current

exposures, risk assessment is about

prediction. Therefore, long-term exposure

monitoring in this context is infeasible. The

Exposure Factors Handbook provides the

current state-of-the-science concerning

exposure modeling and assumptions and is

used in this risk assessment. To the extent

that actual exposure factors vary from the

assumptions in this risk assessment, risks

could be underestimated or overestimated.

• In modeling the fate and transport of

chemicals in groundwater, we did not assess

complex hydrogeology such as karst or

highly fractured aquifers. Some fraction of

the groundwater settings in this analysis have

fractured flow. In general, fractured flow in

groundwater can channel the contaminant

plume, thus allowing it to move faster and

more concentrated than in nonfractured flow

environment. As a result, our modeling may

under or over estimate the concentrations in

the groundwater.

• Finally, there is uncertainty in predicting

the movement of contaminants over long

periods of time. We assess the risk to

receptors for the groundwater pathway over

a time period of 10,000 years. There are

significant uncertainties regarding how

exposure, scientific, and environmental

assumptions will change over time, and the

modeling methodology does not change these

assumptions over this 10,000 year period.

We request comments on each of

these areas of uncertainty, including

their potential impact on our

conclusions and whether data are

available to improve our analysis.

6. What Was EPA’s Approach To

Conducting the Ecological Risk

Assessment?

Waste management activities cannot

only impact the health of individuals

living near a WMU, but can also have

adverse effects on other organisms and

natural systems. For example, wildlife

can come into contact with constituents

released from WMUs by swimming or

living in contaminated waters or by

drinking or catching prey such as fish

from contaminated waters. For this risk

assessment, the EPA conducted an

ecological risk screening analysis for all

the waste management units evaluated

for the human health risk assessment.

The purpose of this analysis was to

identify whether there is potential for

adverse ecological effects from the

management of paint production waste

in landfills, surface impoundments, and

off-site treatment tanks. We performed

this ecological risk assessment with a

two tiered approach. For the first tier,

we assumed that each of the

constituents evaluated had a

concentration in the waste of 750,000

parts per million. This concentration

was a starting number for the analysis

and does not have any significance to

the way in which paint wastes are

currently managed. This waste

concentration was selected as a

concentration level to perform a

screening analysis with since it is

greater than what the EPA expects

would be managed in paint

manufacturing wastes. All constituents

except for mercury and lead did not

pose an unacceptable risk to ecological

receptors at this concentration. For

these two constituents, we performed a

second level of analysis. For mercury

and lead, we predicted what

concentrations could be managed in

each waste management unit to ensure

that all ecological receptors experience

a hazard quotient of 1 or less when

compared to the 90th percentile

environmental media concentrations.

These concentrations were 270,000 ppm

and 7400 ppm for lead and mercury

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10101

23Such high levels of mercury in paint

manufacturing are also unlikely due to existing

regulations controlling the use of mercury in paint.

Prior to the 1990s, paint manufacturing used

mercury in paints at low levels (e.g.,

phenylmercuric acetate was used as a biocide to

control mildew in latex paints). EPA restricted this

use under the Federal Insecticide, Fungicide and

Rodenticide Act (FIFRA), eliminating mercury in

interior latex paints (55 FR 26754, June 29, 1990)

and in exterior paints (56 FR 105, May 31, 1991).

respectively. Based on these

concentrations we determined that lead

and mercury in paint manufacturing

wastes do not pose a threat to ecological

life. Based on our knowledge of paint

formulations and information we

received on constituent concentrations

from our 3007 survey, we do not expect

paint production wastes to contain

either lead or mercury at the levels we

predicted would pose a hazard to

ecological receptors. In addition, since

lead and mercury are regulated as

hazardous wastes with the toxicity

characteristic, we believe that paint

manufacturing wastes that have high

levels of these constituents will already

be regulated as hazardous waste.23

Although we modeled high

concentrations in the waste, we believe

that risks were not found to ecological

receptors in this screening level risk

assessment because of the small waste

volumes of non-hazardous waste that

are being managed in the waste

management units.

The models described in Section III

were used to estimate the release of

these concentrations from the waste

management units, fate and transport of

the constituents in the environment,

and ultimately, the concentration of

each constituent in the different

environmental media (i.e., surface

waters, soils). The ecological screening

analysis compares these modeled media

concentrations to ecologically protective

media concentrations called chemical

stressor concentration limits (CSCL’s).

The result of this comparison is a ratio

called a hazard quotient. When the

hazard quotient exceeds 1, there is

potential for adverse effects to the

ecological receptor. If the hazard

quotient is equal to or less than 1, we

do not expect adverse effects for a

particular ecological receptor. The

amount by which the hazard quotient

exceeds 1 suggests the potential for

adverse ecological effects; however, the

screening results do not demonstrate

actual ecological effects, nor do they

indicate whether those effects will have

significant implications for ecosystems

and their components.

a. How Were Ecological Exposures

Estimated? Similar to estimating human

receptor exposures, we estimated

ecological receptor exposures based on

simulated contaminant concentrations

in the various environmental media and

food items, pathway specific ingestion

rates, and receptor type-specific body

weights. For this analysis, however, the

EPA determined the upper bound

constituent concentration that can be

present in the emission control dust,

combined solids, and aqueous waste

and modeled the fate and transport of

these constituents into the environment.

The resulting media concentrations

were then compared to ecological

receptor chemical stressor concentration

limits. The exposure pathways included

in this analysis were (1) root uptake of

constituents in soil or sediment by

plants, (2) biological uptake of

constituents in surface water by aquatic

animals (e.g., fish or aquatic

invertebrates); (3) biological uptake of

constituents in sediment by benthic

invertebrates; (4) biological uptake of

constituents in soil by soil invertebrates;

and (5) ingestion of constituents in

surface water, soil, sediment, or food

items (plants and animals) by terrestrial

vertebrates. This assessment did not

take into account the dermal absorption

of constituents in surface water or soil

by terrestrial vertebrates or the

inhalation of volatile constituents in air.

There are not enough data available on

these types of exposures to wildlife to

include them in this risk assessment.

The 90th percentile media

concentrations were then compared to

CSCLs to determine the hazard quotient

for each ecological receptor evaluated.

There were several simplifying

assumptions made for this analysis that

over-estimated the potential hazard to

ecological receptors. For example, the

exposures are estimated assuming that

the receptors derive all their food from

the contaminated area and the receptors

diets consist predominantly of items

with the highest contaminant uptake

rates. The methodologies and equations

used for the ecological receptor

exposure estimates are fully described

in the Technical Background Document

for the risk assessment.

b. What Ecological Receptors Did The

EPA Evaluate? Two general types of

receptors were evaluated in the

ecological assessment. For exposure

through direct contact with

contaminated media, the receptors were

multispecies communities such as the

soil invertebrate community or the

terrestrial plant community. For indirect

exposure through ingestion, the

receptors are single species populations,

such as white-tailed deer or raccoons

and include representative trophic

levels and feeding strategies. Evaluating

risk to receptor populations and

communities included consideration of

both aquatic and terrestrial habitats.

Within each habitat, risk was evaluated

at all trophic levels (i.e., position within

the food chain) and for all feeding

strategies (e.g., plant feeder, predator).

Although actual WMU sites were not

defined, it was assumed that WMUs

occur in a variety of settings that

include terrestrial, wetland, and aquatic

systems. Thus, the ecological receptors

evaluated in this risk assessment

include representative plants and

animals from several different

terrestrial, wetland, and aquatic

habitats. In general, the receptors occur

throughout most of the continental

United States or throughout broad

regions, such as east of the Mississippi

River.

Relevant trophic levels and feeding

strategies (i.e., herbivorous, omnivorous,

and carnivorous diets) were established

using simple food webs that describe

dietary composition and predator-prey

relationships in each of the three habitat

types. Receptors representing each

feeding strategy at each trophic level

were selected. In addition, the receptors

represent a cross section of general taxa

at each trophic level. For example,

invertebrates as well as vertebrates were

included, and vertebrate receptors

include amphibians, mammals, and

birds.

The ecological assessment does not

specifically address federally listed

threatened or endangered species.

c. How Did EPA Consider The

Toxicity of Constituents in The

Ecological Risk Assessment? The

calculation of ecological risk for

receptor populations is based on the

implicit assumption that each receptor

species forages only within the

contaminated area, regardless of the size

of its home range. For smaller animals,

this assumption has little impact on the

estimates of exposure. However, for

larger animals with more extensive

foraging areas, this assumption may

overestimate exposure if the animal’s

foraging patterns tend to be evenly

spread over the home range that extends

beyond the contaminated area.

For the species specific receptors

(both mammals and birds), the overall

approach used to establish

ecotoxicological benchmarks is similar

to the methods used to establish RfDs

for humans. Each method uses a

hierarchy for the selection of toxicity

data and extrapolates from a test species

to the species of interest. However, there

are fundamental differences in the goals

of noncancer risk assessments for

humans and ecological receptors. Risk

assessments of humans seek to protect

the individual while risk assessments of

ecological receptors seek to protect

10102 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

populations or communities of

important species.

First, because population viability

was selected as an assessment endpoint,

the benchmarks were developed from

measures of reproductive/

developmental success or, if

unavailable, other effects that could

conceivably impair population

dynamics. In addition, the populationlevel benchmark was preferred over

population-inference benchmarks.

Population-level benchmarks are based

on studies of effects on an entire

population (i.e., many interacting

individuals) while population-inference

benchmarks are based on studies of

individuals with protection of the

population being inferred from

protection of the individual (e.g., no

observed adverse effect levels for

individual organisms on reproductive

endpoints). Although relatively few

population-level benchmarks have been

developed to date, these benchmarks are

considered to be more rigorous than the

point estimates gleaned from toxicity

studies. Once the appropriate

ecotoxicological studies were identified

for mammals and/or birds, the CSCLs

for each receptor were calculated for

each medium of interest by scaling the

toxicity benchmark from the test species

to the receptor species, identifying the

uptake/accumulation factors,

identifying the exposures from dietary

intake, and determining a risk-based

concentration in each media. The

benchmarks for the community

receptors were taken from various

sources such as the final chronic values

developed for the National Ambient

Water Quality Criteria. A detailed

description of the benchmarks

developed for all of the receptors

evaluated is contained in the Technical

Background Document for the risk

assessment.

7. Did EPA Conduct a Peer Review of

The Risk Assessment? The Agency has

obtained a peer review from

independent experts. Their comments

have been received and are part of the

peer review document that is in the

docket for today’s proposed rule. The

peer review document also describes

how the experts were identified and

selected, contains information on the

experts experience and employment,

and provides a copy of the questions the

peer reviewers were asked to address.

Due to the time constraints for proposal

of this rule, the Agency has not yet

reviewed and addressed those

comments. Both the peer review

comments and the public comments

will be addressed in the final

rulemaking.

IV. Proposed Listing Determinations

and Regulations

A. What Are The Proposed Regulations

for Paint Production Wastes?

We are proposing that, if you generate

any of the paint manufacturing wastes

described in these listings, then you

must determine whether or not your

waste is a listed hazardous waste, or you

must assume that it is hazardous. For

the wastes identified in the K179 and

K180 listings, your waste would become

a listed hazardous waste if it contains

any of the constituents of concern at a

concentration equal to or greater than

the hazardous concentration identified

for that constituent. You would need to

make a determination that all the

constituents of concern in your waste

are below the hazardous concentrations

to have your wastes remain

nonhazardous. Waste liquids listed in

K180, however, would not be subject to

the listing, if the wastes are stored or

treated exclusively in tanks or

containers prior to discharge to a POTW

or under an NPDES permit. We are

proposing the following regulatory

language in § 261.32 for these wastes:

K179—Paint manufacturing waste solids

generated by paint manufacturing facilities

that, at the point of generation, contain any

of the constituents identified in paragraph

(b)(6)(iii) of this section at a concentration

equal to or greater than the hazardous level

set for that constituent in paragraph (b)(6)(iii)

of this section. Paint manufacturing waste

solids are: (1) Waste solids generated from

tank and equipment cleaning operations that

use solvents, water and/or caustic; (2)

emission control dusts or sludges; (3)

wastewater treatment sludges; and (4) offspecification product. Waste solids derived

from the management of K180 by paint

manufacturers would also be subject to this

listing. Waste liquids derived from the

management of K179 by paint manufacturers

are not covered by this listing, but such

liquids are subject to the K180 listing. For the

purposes of this listing, paint manufacturers

are defined as specified in paragraph (b) of

this section.

K180—Paint manufacturing waste liquids

generated by paint manufacturing facilities

that, at the point of generation, contain any

of the constituents identified in paragraph

(b)(6)(iii) of this section at a concentration

equal to or greater than the hazardous level

set for that constituent in paragraph (b)(6)(iii)

of this section unless the wastes are stored

or treated exclusively in tanks or containers

prior to discharge to a POTW or under a

NPDES permit. Paint manufacturing liquids

are generated from tank and equipment

cleaning operations that use solvents, water,

and/or caustic. Waste liquids derived from

the management of K179 by paint

manufacturers would also be subject to this

listing. Waste solids derived from the

management of K180 by paint manufacturers

are not covered by this listing, but such

solids are subject to the K179 listing. For the

purposes of this listing, paint manufacturers

are defined as specified in paragraph (b) of

this section.

Due to the uncertainties in our

assessment of the management of paint

manufacturing waste liquids in surface

impoundments, we are seriously

considering an alternative proposal not

to list paint manufacturing waste

liquids. We describe this alternative and

our reasoning for this option later in this

notice (see Section IV.D).

Under the proposed listings shown

above, paint manufacturing wastes with

constituents of concern below the

concentration limits at the time of

generation would not be hazardous

waste K179 or K180; such wastes would

be nonhazardous from their point of

generation, and would not be subject to

any RCRA Subtitle C management

requirements for generation, storage,

transport, treatment, or disposal

(including the land disposal

restrictions). Similarly, liquid paint

manufacturing wastes would also be

nonhazardous if the waste is managed

or treated exclusively in tanks or

containers prior to discharge to a POTW

or under an NPDES permit regardless of

whether it contained any of the

constituents of concern. However, if

paint manufacturing wastes are

hazardous waste due to another listing

code or because they exhibit a

hazardous waste characteristic under

section 261.24, the wastes remain

hazardous under these other

regulations.

We are proposing that the

constituents and the concentrations in

the two above listings (which would be

specified in paragraph (b)(6)(iii) of

§ 261.32) would be those shown in

Tables IV.A–1 for waste solids (K179)

and in Table IV.A–2 for waste liquids

(K180). These are waste concentrations

that represent risk-based concentrations

for constituents we determined to be of

potential concern in paint

manufacturing wastes. The

concentration-based listing levels for

waste solids are based on the risk

modeling for landfills, and the levels for

waste liquids are based on the risk

modeling for surface impoundments.

We also evaluated potential air releases

from treatment of waste liquids in tanks,

but as described in Section IV.C, we did

not find significant risks for this

management scenario. Therefore, we are

proposing not to include wastes

managed exclusively in tanks within the

scope of the listing for waste liquids.

See Section IV.D for further discussion

of our reasoning for structuring the

listing for waste liquids in this way, and

for other options we are considering.

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10103

24We found solvent uses for phenol were limited

in a listing determination for solvent uses of this

chemical (see 61 FR 42318, August 14, 1996).

Primary uses as a solvent were in the petroleum

industry (extraction of lube oil) and in

microelectronic and automotive industries

(removing coatings). While this previous analysis

did not focus on uses as ingredient, which is the

potential use in paint formulations, this indicates

that the use of phenol for its solvent properties is

relatively rare.

25The proposed levels are based on the

probabilistic risk results for the 90th percentile. If

we were to use the results for the 95th percentile,

we would consider including methanol, because

then the listing level for liquid wastes would drop

to 6.2%, which we believe is somewhat more likely.

26EPA concluded that this group of wastewater

treatment plants would likely include some

facilities that would be major sources of HAPs (see

61 FR 34144/2). Thus, these major sources would

be subject to the MACT standard.

As described in Section III.E, we

developed risk-based concentrations for

the larger set of constituents shown in

Table III.E–4. In general, we relied on

the modeling results to guide us in

deciding which constituents would be

most useful in defining these paint

manufacturing wastes as listed

hazardous wastes. We chose

constituents for listing from the list in

Table III.E.4 using a number of criteria.

• We dropped constituents from further

concern if the risk-based levels for the waste

exceeded or approached 100% (i.e.,

1,000,000 mg/kg), because these constituents

could not present significant risks in the

paint manufacturing wastes we evaluated.

• We did not include constituents that are

already regulated by the TC. As discussed in

Section IV.G, we found that the regulatory TC

levels (see 40 CFR 261.24) would likely be

below the protective levels we calculated for

these chemicals. Therefore, based on our

analysis, the existing TC regulations

adequately regulate risks from these

constituents in these wastes, because wastes

exhibiting the TC would have to be treated

prior to disposal.

• We dropped constituents if their levels

were so high that we believe it is highly

unlikely that these chemicals would ever

exist at such levels in waste solids from paint

manufacturing.

For paint manufacturing waste solids

(K179) we used the risk levels in Table

III.E–4 calculated for emission control

dust, because these were slightly lower

than the levels for the combined solids.

Using the above criteria for the 43

constituents listed in Table III.E–4, we

dropped 24 constituents that have riskbased levels above 100% and 11 other

constituents that are TC chemicals. We

dropped three others that are unlikely to

exist in paint wastes at the calculated

risk-based levels. Two of the three have

risk-based levels that are close to 100%

and are therefore implausible for waste

(n-butyl alcohol—970,000 mg/kg,

formaldehyde—930,000 mg/kg). The

other constituent, methylene chloride

(dichloromethane), has a level of 24%

(240,000 mg/kg). This appears unlikely,

given that manufacturers have moved

away from using chlorinated solvents in

paints. This is further supported by the

responses to the 3007 survey, which

showed that the presence of this

chemical was not reported by any

facility in nonhazardous waste.

For waste liquids (K180), we used the

risk-based levels in Table III.E–2

derived for wastewaters in surface

impoundments. We dropped 14

constituents that have risk-based levels

above 100% and 13 others that are TC

constituents. We also dropped four

other constituents that have levels that

appear unlikely for waste liquids:

ethylene glycol, phenol, methanol, and

2,4-dimethylphenol. The calculated

levels for ethylene glycol (790,000 mg/

L), phenol (270,000 mg/L) and methanol

(200,000 mg/L) were so high that we

considered these unlikely to ever occur

in liquid paint manufacturing wastes.

While all three are potentially used as

water-soluble solvent ingredients,

phenol and methanol are also used as

biocides in water-based paints.24 While

the Survey showed these chemicals

were found frequently in paint

manufacturing wastes, no generator

reported levels in nonhazardous or

hazardous wastes that would approach

the modeled levels of concern (the only

waste with high levels was an off-spec

paint containing 20% of ethylene glycol

that was sent to fuel blending). For

waste streams to approach these

concentrations, the constituents would

have to start out at even higher

concentrations in the product. Such

high levels in the products are

unrealistic, because products with such

high concentration of these constituents

would not have the attributes of paint.

Therefore, we are not proposing to

include these chemicals as constituents

in the paint listings.25

We dropped 2,4-dimethylphenol as a

constituent of concern for waste liquids

because the 3007 Survey showed that

facilities did not report its presence in

nonhazardous waste. Furthermore, the

only potential use in paint we found for

this chemical was possibly as a biocide.

Therefore the low concentrations

resulting from such a use would be

unlikely to approach the risk-based

level (17,000 mg/L). We also note that

the TRI data showed only minimal

releases (5 lbs.) to off-site wastewater

treatment for all facilities in SIC code

2851.

Regulations that limit air releases

from off-site wastewater treatment

facilities are also likely to keep levels of

these organic constituents below such

high levels. EPA is planning to propose

a MACT standard for paint

manufacturers (Miscellaneous Organic

Chemical and Coatings Manufacturing)

that would regulate HAPs in

wastewaters, both when managed onsite and when sent off-site for treatment.

Furthermore, subpart DD in 40 CFR part

63 sets National Emission Standards for

Hazardous Air Pollutants (NESHAP)

from off-site waste and recovery

operations, which may include off-site

centralized wastewater treatment

facilities (July 1, 1996, 61 FR 34140 ).26

In addressing potential air releases from

such facilities, the CAA regulations are

likely to prevent the levels of most

chemicals at issue here (e.g., phenol and

methanol) from reaching the risk-based

levels under consideration in liquid

paint manufacturing wastes. This is

likely because such MACT standards

often provide incentives to reduce HAPs

through source reduction or

pretreatment to avoid costly engineering

controls.

We solicit comment on the proposed

list of constituents and their levels. We

seek comment and supporting

information as to whether any other

constituents discussed above should be

added to the chemicals for listing paint

solids or liquids and the basis for such

action. We seek any information that

may assist us in deciding whether any

of the constituents or levels in Tables

IV.A–1 and IV.A–2 are so unlikely to be

present at the levels of concern that we

should drop them from the listing. For

example, the levels for the solids (K179)

are high for methyl isobutyl ketone

(73,000 mg/kg). The liquid level for

formaldehyde (82,000 mg/L) is also

unlikely for a chemical that has been

used mainly as a biocide or in polymer

binders. In addition, we question

whether the chemicals methyl

methacrylate and styrene, which are

used primarily as resins rather than in

their monomeric forms, would be

present at the high levels shown in

Tables IV.A–1 and IV.A–2 for the solid

or liquid paint manufacturing wastes.

However, we believe levels of the

monomeric forms of acrylonitrile and

acrylamide that are present in the resins

may still present a potential risk at the

relatively low levels set for waste solids

and waste liquids not managed in tanks.

Therefore, we are proposing to include

acrylonitrile and acrylamide as listing

constituents, because they may be in

paint manufacturing wastes at or above

these levels (see discussion in Section

IV.C on potential risks from tanks).

Depending on comments, we may

choose to add or remove constituents

from the concentration-based listing.

10104 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

27Another option would be to use section 7.1 in

the TCLP (method 1311) to measure filterable

solids.

As required under § 261.30(b), we are

proposing to add the constituents that

are the basis for the listings to Appendix

VII of Part 261. We are proposing to add

the constituents in Table IV.A–1 for

K179 and the constituents in Table

IV.A–2 for K180. In addition, a number

of constituents in Tables IV.A–1 and

IV.A–2 are not currently listed in

Appendix VIII to Part 261 as ‘‘hazardous

constituents.’’ EPA places constituents

on Appendix VIII if scientific studies

show the chemicals have toxic,

carcinogenic, mutagenic, or teratogenic

effects on humans or other life forms

(see § 261.11(a)(3)). The Risk

Assessment Background Document

contains the detailed toxicological data

for all constituents we evaluated,

including the chemicals we are

proposing to add to Appendix VIII: nbutyl alcohol, ethyl benzene, methyl

isobutyl ketone, styrene, and xylene. If

we choose the alternative of not listing

paint manufacturing waste liquids

(K180), then we would not need to add

the constituents to Appendix VII for

K180, and we would need to add only

methyl isobutyl ketone to Appendix

VIII.

TABLE IV.A–1.—CONCENTRATION

LEVELS FOR WASTE SOLIDS (K179)

Constituent

Concentration levels

(mg/kg)

Acrylamide ................................ 310

Acrylonitrile ............................... 43

Antimony ................................... 2,300

Methyl Isobutyl Ketone ............. 73,000

Methyl methacrylate ................. 28,000

TABLE IV.A–2.—CONCENTRATION

LEVELS FOR WASTE LIQUIDS (K180)

Constituent

Concentration levels

(mg/L)

Acrylamide ................................ 12

Acrylonitrile ............................... 9.3

Antimony ................................... 390

Ethylbenzene ............................ 11,000

Formaldehyde ........................... 82,000

Methyl Isobutyl Ketone ............. 340

Methyl Methacrylate ................. 2,100

Methylene Chloride ................... 4,500

N-Butyl Alcohol ......................... 41,000

Styrene ..................................... 4,600

Toluene ..................................... 1,200

Xylene (mixed isomers) ............ 3,900

The listing levels we are proposing for

K179 and K180 are different for the

waste solids and waste liquids. These

levels are based on the risk assessment

for various scenarios for disposal of

solids (landfill) and the liquids (surface

impoundment). In general, we believe

generators will be able to readily

determine which waste category their

wastes would be in, based on their

responses to the 3007 Survey, and their

reported management practices.

However, we are considering setting a

clear definition to distinguish the waste

solids and liquids, such that a generator

can readily determine which listing

applies. Thus, we request comment on

several options in establishing a clear

definition that would distinguish solids

vs. liquids.

Perhaps the most straightforward

approach would be to set a level of

percent solids above which the waste

would be a solid paint manufacturing

waste and below which it would be a

liquid paint manufacturing waste. One

possible level could be 15%. Thus, this

option would define paint

manufacturing waste solids as those

containing 15% or above solids (by

weight). This cutoff reflects the general

approach we used in our modeling for

solids. In our assessment of releases

from landfills we assumed that the

waste contained a maximum moisture

level of 85% (for sludges; we assumed

a maximum moisture level of 15% for

dusts). Furthermore, because of the

restrictions on free liquids in municipal

nonhazardous landfills (e.g., see

§ 258.28), we do not envision wastes

containing less than 15% solids could

reasonably be managed in a landfill.

Therefore, we believe that wastes

containing less than 15% solids will be

managed in units associated with

wastewater treatment, such as tanks or

surface impoundments. In addition, in

most cases water will be separated from

solids as part of routine wastewater

treatment. Thus, generators would be

evaluating solid residues, which clearly

meet our solid definition, or treated

water, which would typically be

discharged to a POTW or under an

NPDES permit, and would not be

covered by the K180 listing in any case.

Percent solids could be measured by

an established method, such as the

method for total suspended solids (TSS)

described in EPA guidelines for test

methods used under the CWA (EPA

method 160.1 in 40 CFR 136.3, Table

1B).27 However, generators may have

the knowledge necessary to decide

whether their paint manufacturing

waste was a liquid or a solid, based on

past analysis or disposal practices. We

believe that in many cases, especially

for wastes that are clearly ‘‘wet’’ or

‘‘dry,’’ the generator can easily tell from

a visual inspection that solids content is

well above or below 15%. Thus, if we

were to set a level to define paint

manufacturing waste solids and liquids,

we believe we could allow the generator

to use his knowledge, rather than

necessarily requiring a test.

Instead of setting a specific level of

percent solids, another option is to use

the Paint Liquids Filter Test (method

9095 in SW–846) to determine if the

waste is a liquid or a solid. A paint

manufacturing waste found to contain

free liquid under this method would be

considered a liquid, and would be

evaluated under the K180 listing, while

a paint manufacturing waste that does

not contain free liquids would be

subject to the K179 listing. This method

appears logical because it is presently

used in defining the term ‘‘liquid waste’’

in the solid waste disposal criteria for

determining compliance with the

prohibition on disposing of bulk or

containerized liquid in municipal

landfills (§ 258.28). Method 9095 is also

used in a similar way for hazardous

waste landfills (§ 264.313(c)). Thus,

using this method to distinguish paint

manufacturing waste solids from liquids

would be consistent with the definitions

used in the operating practices for the

management scenario modeled for

solids, i.e., landfills.

A third option would be to use a

definition of liquids that is analogous to

the definition of wastewater used under

the land disposal restrictions.

Wastewater is defined as waste with less

than 1% total suspended solids (TSS)

and less than 1% total organic carbon

(§ 268.2(f)); nonwastewater is defined as

any waste that is not wastewater. While

using this approach would allow some

consistency in definitions in the listings

and the LDR programs, we believe this

would not be appropriate. A key

disadvantage of this approach is that it

defines wastes with greater than 1%

TSS as a nonwastewater, i.e., a solid,

even though such a waste is highly

likely to be managed in wastewater

treatment systems using tanks and

surface impoundments, and not

landfills. Given this problem, we do not

think using this definition would be

useful to define wastes solids and

liquids for purposes of the paint listings.

We seek comment on the need for

specific definitions for paint

manufacturing waste liquids and solids,

and the relative merits of the above

options or similar approaches. We also

request comment on whether facilities

are likely to have information available

on the percent solids in their wastes.

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10105

28This is not an issue for the listing for paint

liquid wastes, because any analysis of the liquids

would include an analysis of the total liquid

mixture.

29See method 1311 in OSW’s methods manual,

Test Methods for Evaluating Solid Waste, Physical/

Chemical Methods, SW–846.

B. Why Are We Proposing to Use the

Level of Constituents in the Waste

Solids as Total Waste Concentrations

Rather Than Leachate Concentrations?

We are proposing to set the

concentration levels for defining

hazardous paint solids using the

concentrations measured in the waste

itself, i.e., the totals concentration.28 We

considered using the landfill leachate

levels instead of the waste levels to

define the listed waste. Using landfill

leachate levels would require generators

to evaluate their wastes using a test such

as the Toxicity Characteristic Leaching

Procedure (TCLP).29 However, we

decided not to use the TCLP approach

for a number of reasons. We believe that

the partitioning model used to establish

the totals concentrations is a more

appropriate tool to assess risks posed by

the paint manufacturing wastes. This is

because the partitioning model factors

in periodic placement of the specific

waste volumes in cells within the

landfill, closure of the landfill after 30

years, volatilization of constituents from

the landfill through partitioning to the

air, and any degradation of organics

while in the unit. The leaching values

for the paint manufacturing waste solids

result from the partitioning of

constituents from the waste to water

infiltrating the unit. A test method like

the TCLP does not reflect these factors.

The TCLP approach is designed only to

assess groundwater impacts, and does

not account for other releases or

processes occurring in landfills.

Therefore, the estimated leaching

numbers derived from our modeling

assessment of paint manufacturing

wastes, where partitioning and

degradation are occurring before the

constituents leave the unit, are not

strictly comparable with the simple

leaching of constituents from wastes

represented by the TCLP.

We recognize that the totals levels

appear somewhat high in comparison to

the leachable levels we calculated for

our assessment of paint manufacturing

wastes (Table IV.–3). For example, the

leaching level calculated for

dichloromethane is 390 mg/L, compared

to a total level of 240,000 mg/kg.

However, it is not surprising that

leachate levels derived from the waste

would be lower than the levels in the

waste itself. Most of the organic

constituents assessed are relatively

volatile, and will begin to volatilize as

they are placed in the landfill. The

entire mass of constituent in the waste

is not placed in the landfill at once, but

rather is placed in cells over the life of

the unit. Therefore, as disposal occurs,

the waste constituents are continuing to

partition into air, soil, or leachate. Our

model also factors in degradation of

organics in the landfill. Such

biodegradation is relatively slow for

most chemicals, however this also

assists in attenuating the levels of

constituents that are released to the

subsurface. We recently published

related modeling results as part of the

Hazardous Waste Identification Rule

(HWIR) using the same modeling

approach (64 FR 63382, November 19,

1999, and 65 FR 44491, July 20, 2000),

though this effort covered a wider

distribution of waste volumes. The use

of totals rather than leachate for a

concentration-based listing is also

consistent with another recent EPA

proposal for listing hazardous waste

from the Dye and Pigments industry (64

FR 40192, July 23, 1999).

Therefore, we are proposing the

concentration levels for the waste itself

for the listing for waste solids from

paint manufacturing. However, we seek

comment on the option of setting the

leachate concentrations from our

modeling as the listing levels for the

paint solids, and on the potential

impacts (incremental costs and benefits)

of such an approach. We may still

consider a final regulation based on the

measurement of leachate with the TCLP

method, as shown in Table IV.B–3, after

further consideration and review of

comments.

TABLE IV.B–3.—ALTERNATIVE CONCENTRATION LEACHING LEVELS FOR

WASTE SOLIDS (K179)

Constituent

Concentration levels

(mg/L)

Acrylamide ................................ 0.70

Acrylonitrile ............................... 0.91

Antimony ................................... 58

Methyl Isobutyl Ketone ............. 42

Methyl methacrylate ................. 160

C. Why Are We Proposing to Exclude

Waste Liquids Managed in Tanks?

We are proposing that liquid paint

manufacturing wastes stored or treated

exclusively in tanks or containers prior

to discharge to a POTW or under an

NPDES permit not be subject to today’s

proposed listing because these wastes

managed in tanks do not pose sufficient

risk to warrant hazardous waste

regulation.

As shown in Table III.D–4, nearly all

of the liquid paint manufacturing wastes

are managed in some type of wastewater

treatment system (small volumes are

sent to fuel blending or other treatment).

Furthermore, as indicated in Table

III.D–4, liquid wastes are primarily

classified as water or caustic cleaning

liquids, except for one small volume of

solvent cleaning liquid that went to a

fuel blender.

For on-site tanks, as described in

Section III.E, we conducted a bounding

risk analysis for on-site treatment tanks

that evaluated the worst case scenario

for on-site management in tanks,

including storage as well as treatment

tanks. Our analysis identified some

potential constituents of concern:

Benzene, chloroform, mercury,

methylene chloride,

tetrachloroethylene, and acrylonitrile.

However, when the survey responses

provided data on constituent levels,

these data indicated that these

constituents are unlikely to be present

in these wastes at levels of concern. In

addition, for benzene, chloroform,

mercury, and tetrachloroethylene, the

risk-based concentrations derived from

the bounding risk analysis are

significantly higher than the respective

TC levels; therefore, the TC regulations

provide some control for most of these

constituents. For acrylonitrile, the

calculated risk-based concentration of

1,500 ppm is significantly higher than

the projected range of concentration of

1–40 ppm for acrylonitrile in liquid

waste streams; as such, it is not of

concern. Most other constituents of

concern either bounded out (i.e.,

modeled levels were higher than

1,000,000 ppm), or were unrealistically

high for paint manufacturing wastes.

The risk-based levels derived from the

risk assessment for methylene chloride,

methyl isobutyl ketone, toluene, vinyl

acetate, and xylene are so high that we

believe they are highly unlikely to exist

at such levels in nonhazardous liquid

paint manufacturing wastes. This

evaluation for on-site tanks is discussed

in more detail in the following section

(IV.C.1).

For off-site treatment tanks, we

conducted a probabilistic risk

assessment as described in Section III.E.

This risk assessment identified three

potential constituents of concern:

Mercury, benzene and acrylonitrile. The

survey responses showed that these

constituents are not likely to be present

in the wastes at concentrations of

concern. In addition, the levels of

mercury and benzene in the waste are

also limited by the existing TC

regulations, i.e., the risk-based levels

derived from the risk assessment are

10106 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

30See the memo from Paul Danault, Dynamac

Corporation, to David Carver and Cate Jenkins, EPA,

well above the TC levels. As described

below, we determined that acrylonitrile

is unlikely to exist in paint

manufacturing waste liquids at the riskbased levels of 69,000 ppm. Therefore,

there is no need to regulate paint

manufacturing waste streams managed

in off-site treatment tanks. See section

IV.C.2 for a full discussion.

1. On-Site Storage and Treatment Tanks

Based on our extrapolated survey

results, we estimate that 14,564 metric

tons (approximately 47%) of

nonhazardous liquid paint

manufacturing wastes generated are

managed in on-site storage tanks and

7,514 metric tons, or approximately

24%, of nonhazardous paint

manufacturing waste liquids are

managed in on-site treatment tanks.

After these wastes are managed on-site

in storage and treatment tanks, the

wastes are then either directly

discharged into a waterway under a

NPDES permit, discharged into a

POTW, or sent to centralized

wastewater treatment facilities.

For tanks, we normally model air

emissions. We assume that significant

groundwater risks are unlikely because

tanks do not leak liquids into the soil if

properly maintained. Treatment tanks

represent a more conservative scenario

for modeling purposes because they are

typically used for the aeration and

flocculation of liquid wastes to settle

out solids, causing more constituents to

escape into the air than the relatively

quiescent accumulation of liquids in

storage tanks. Accordingly, we

evaluated the potential risks from the

management of liquids in treatment

tanks to cover both scenarios.

As described earlier in Section III.E,

we conducted a bounding analysis of

the potential air releases from the

nonhazardous liquid wastes treated in

on-site treatment tanks. This

conservative analysis assumed tanks are

uncovered, and modeled the largest

liquid residual volume and tank size

reported by the surveyed facilities. The

risk-based levels for most constituents

exceeded 100%, and would not present

significant risks in the paint

manufacturing wastes for this scenario.

The risk assessment results showed

somewhat lower risk-based

concentrations for paint manufacturing

wastes in tanks for some constituents,

i.e., benzene (1,100 ppm), chloroform

(15,000 ppm), mercury (41 ppm),

tetrachloroethylene (22,000 ppm),

acrylonitrile (1,500 ppm), methylene

chloride (17,000 ppm), methyl isobutyl

ketone (780,000 ppm), toluene (120,000

ppm), vinyl acetate (100,000 ppm), and

xylene (830,000 ppm); we discuss these

chemicals in detail below.

In general we do not expect

significant levels of organic chemicals

in on-site wastewater treatment systems

for several reasons. First, the liquid

wastes most likely to have high organic

content, solvent cleaning wastes, are

managed as hazardous. Except for one

facility, these wastes were coded as

hazardous waste, either due to a

F-listing or because of a characteristic.

The 3007 survey showed that all the

generators of hazardous waste liquids

reported the wastes were treated by

incineration, fuel blending, or they were

reused. Therefore, we have no data

suggesting facilities are treating such

high organic liquids in on-site

wastewater treatment systems.

Second, the 3007 survey shows that

none of the small number of facilities

that treated wastes in on-site wastewater

treatment (WWT) tanks (8 facilities,

representing about 18 facilities in our

weighted sample) reported significant

organic content in their wastes. Of the

8 facilities, only one reported the

presence of any organic constituents of

potential concern, but listed them only

because they may occasionally be

present in the waste. Of the other 7

facilities, most reported the presence of

metals, a few reported vinyl acetate

polymers, and one reported the watersoluble ethylene glycol.

Finally, as noted in Section IV.A

above, a MACT standard covering paint

manufacturers will soon be proposed

that will address potential air releases

from these facilities. The MACT would

place limits on HAPs in wastewater

treatment systems, and would likely

keep organic levels in paint

manufacturing wastewaters relatively

low.

Turning to the constituents of

possible concern (benzene, chloroform,

mercury, methylene chloride,

tetrachloroethylene, and acrylonitrile),

the facilities reported in their survey

responses that these chemicals were

either not present at all, or were present

at only trace concentrations. Out of the

187 paint manufacturers surveyed, the

responses showed benzene was present

in trace amounts in only one facility’s

nonhazardous water cleaning liquid;

mercury was present in only two

facilities’ nonhazardous water cleaning

liquid at trace levels (up to 0.06 ppm).

No facility reported the presence of any

chloroform, methylene chloride, or

tetrachloroethylene in any liquid

residual. We discuss the possible

presence of acrylonitrile in detail below.

Furthermore, the risk-based levels for

most of these constituents are well

above their TC levels (benzene-0.50

ppm, chloroform-5.0 ppm, mercury-0.2

ppm, and tetrachloroethylene-0.7 ppm).

Consequently, we are not proposing

regulating these constituents under

today’s proposed listing.

Acrylonitrile is a monomer, i.e., a

relatively small compound with low

molecular weight. It reacts with other

monomers to form polymers (i.e., crosslink into large, high molecular weight

compounds) that are used as paint

binders. However, the reaction is rarely

100% complete, and small amounts of

the individual monomers remain

unreacted as impurities in the polymer.

Unreacted acrylonitrile monomers, not

their polymers, are the targeted

constituents of concern in our risk

assessment.

With respect to acrylonitrile

monomers, we do not expect this

constituent to be present in paint

manufacturing wastewaters above the

risk-based concentrations derived from

the bounding analysis for tanks. To

analyze whether concentration levels of

acrylonitrile at 1,500 ppm are

reasonable as a basis for listing liquids

in on-site tanks, we developed a

methodology to determine whether

these constituents are likely to occur in

paint manufacturing waste liquids at

concentrations within the range of the

risk-based levels. We assessed potential

concentrations of acrylonitrile in paint

manufacturing liquid waste streams in a

three-step process that involved tracking

the monomers from point of origin

(binder) to the final destination (liquid

waste streams): (1) We estimated the

concentration range of acrylonitrile

monomers in the binder systems used to

make paint; (2) we estimated the volume

percentage of the binder systems added

into paints themselves; and, (3) we

estimated the monomer concentration

range in paints in tank cleaning wastes.

Based on these calculations (which are

discussed in more detail below), we

estimated that the ranges of acrylonitrile

monomer concentrations in the liquid

waste streams should be one to 40 ppm.

We then compared these projected

concentration ranges of acrylonitrile in

the liquid waste streams to the riskbased levels calculated in the risk

assessment.

As specified above, we estimated the

likely range of unreacted monomer of

acrylonitrile in the binders (i.e.,

polymers) to be between 20 ppm and

1,000 ppm. This is reflected in our

analysis of the use of acrylamide and

acrylonitrile polymers in paint

formulations 30 and the Material Safety

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10107

dated September 6, 2000, which is in the docket for

today’s proposed rule.

31 Ibid.

32That is, 50 gallons of water used for washing

per about 800 gallons of paint produced in the tank.

This is a conservative assumption compared to the

information in Reference 7 of the Bibliography,

Development Document for Effluent Limitations

Guidelines and Standards for the Paint Formulating

Point Source Category, EPA 440/1–79/049B, which

states that the median wastewater generation at

waterbone paint facilities is 0.2 gallons per gallon

of paint produced.

33As discussed previously, some off-site

nonhazardous wastewater treatment facilities may

also be covered by the NESHAP/MACT standards

Continued

Data Sheet (MSDS) data we obtained

from some paint manufacturers (copies

available in the public docket for

today’s proposed rule), which show the

monomer mixture in binders in the 500

to 1,000 ppm range. Second, we

projected that the likely concentration

ranges of monomers in a paint or

coating are approximately 10 ppm to

500 ppm for acrylonitrile. This estimate

was based on our examination of paint

formulations, which indicates that these

paint formulations contain up to 50%

by weight of acrylonitrile-acrylic

polymer.31 Finally, we estimated the

projected monomer concentration in the

resulting water cleaning liquids is

approximately one ppm to 40 ppm for

acrylonitrile given that approximately

50 gallons of water are needed to wash

a typical paint mixing tank of

approximately 5 feet in diameter and 8

feet in height with a paint depth of 6

feet,32 and that a 0.0625-inch film of

paint is attached to the inside surface of

the tank up to 6 feet (amounting to a

total of 4 gallons of paint to be rinsed).

These projected acrylonitrile

concentrations in paint manufacturing

wastewaters are significantly lower than

the calculated risk-based concentration

of 1,500 ppm. For more details, see

‘‘Potential Acrylonitrile Concentrations

in Paint Manufacturing Liquid Waste

Streams’ in the public docket for today’s

proposed rule. Therefore, we believe it

is highly unlikely for this constituent to

be present in paint manufacturing liquid

waste streams at such levels.

In addition, according to the

information available to us, acrylonitrile

is not widely used in the U.S. paint

manufacturing industry, and its use is

diminishing. For example, resin

manufacturers are marketing

‘‘acrylonitrile free’’ resins. It is also a

practice within the resin manufacturing

industry to remove residual monomer

before selling the polymer for paint

production.

The low use of this binder in paints

is supported by our survey data. Six of

187 surveyed paint manufacturing

facilities reported acrylonitrile-derived

polymers in their nonhazardous liquid

residuals (in particular nonhazardous

water cleaning liquids). In addition, one

survey response indicated the presence

of acrylonitrile and acrylonitrile-derived

polymers in the nonhazardous water

cleaning liquids at 2.8%. Assuming the

polymers used by this facility include

the monomers in concentrations ranging

from 20 ppm to ×1,000 ppm for

acrylonitrile as estimated above, the

maximum monomer concentration in

this facility’s nonhazardous wash water

would be less than 28 ppm (i.e., 2.83%

x 1,000 ppm/acrylonitrile monomer in

polymer), which is consistent with our

assessment (i.e., between <1 ppm to 40

ppm).

The risk-based levels derived from the

risk assessment for methyl isobutyl

ketone (780,000 ppm, or 78%), toluene

(120,000 ppm, or 12%), vinyl acetate

(100,000 ppm, or 10%), and xylene

(830,000 ppm, or 83%) are so high that

we believe they are highly unlikely to

exist at such levels in nonhazardous

liquid paint manufacturing wastes. This

is reflected in the responses to our

Section 3007 survey, which indicated

that the highest levels of toluene, vinyl

acetate and vinyl acetate-derived

polymers, and xylene in nonhazardous

liquid residuals were 0.025 ppm, 16,000

ppm, and 118 ppm, respectively.

In conclusion, our analysis indicates

there are no significant risks posed by

the modeled constituents in

nonhazardous paint manufacturing

wastes that are managed in on-site

storage and treatment tanks. We believe

the likely levels of the potential

constituents of concern in paint

manufacturing wastewaters are

substantially lower than the risk-based

concentrations derived from the

bounding risk analysis. Therefore,

requiring the facilities to analyze or

otherwise evaluate these constituents

would impose an unnecessary burden

on paint manufacturers. Thus, we are

proposing that paint manufacturing

waste liquids stored and/or treated in

on-site tanks at paint manufacturing

facilities are not subject to today’s

proposed listing.

2. Management of Liquid Paint

Manufacturing Wastes in Off-Site

Treatment Tanks

Based on our extrapolated survey

results, we estimate that 6,407 metric

tons (approximately 21%) of liquid

nonhazardous paint manufacturing

wastes generated are disposed off-site in

privately owned wastewater treatment

facilities where tanks and surface

impoundments may be used as part of

the treatment process. Following

treatment, the wastes are typically

discharged into surface waters under an

NPDES permit, or discharged to the

POTW system.

As described earlier in Section III.E,

the risk assessment conducted for liquid

paint manufacturing wastes managed in

off-site treatment tanks identified

potential inhalation risks associated

with only a few constituents. The risk

assessment estimated risk-based

concentrations for mercury (10,000

ppm), benzene (190,000 ppm) and

acrylonitrile (69,000 ppm).

As discussed above, the survey

showed that facilities reported only

traces of benzene or mercury in a few

nonhazardous liquid residuals.

Furthermore, levels of both constituents

are controlled by the existing TC

regulations. Therefore, there is no need

to regulate these TC constituents further

under today’s proposed listing.

For acrylonitrile, the risk-based

concentration of 69,000 ppm is

significantly higher than the estimated

range of acrylonitrile monomer in paint

manufacturing wastewaters (see

previous discussions on liquid wastes

managed in on-site storage and

treatment tanks). Therefore, it is highly

unlikely for this constituent to be

present in paint manufacturing liquid

waste streams at such a high level.

We note that 21 of the 187 surveyed

paint manufacturing facilities reported

that they sent nonhazardous liquid

wastes to off-site wastewater treatment

facilities, of which only one reported

having any of the three constituents of

concern in the wastewater. Specifically,

this facility sent a very small quantity of

nonhazardous wash water (151 gallons/

year) containing an unknown amount of

acrylonitrile to a centralized wastewater

treatment facility.

In conclusion, we believe there are no

significant risks posed by the modeled

constituents in nonhazardous paint

manufacturing wastes that are managed

in off-site treatment tanks. We believe

the levels of the potential constituents

of concern in paint manufacturing

wastewaters are substantially lower than

the risk-based concentrations derived

from the risk assessment. Therefore,

requiring the facilities to analyze or

otherwise report these constituents

would impose an unnecessary burden

on paint manufacturers. In addition, the

levels of some constituents are

controlled by the existing TC

regulations. Furthermore, as noted

previously, EPA has recently proposed

a NESHAP for miscellaneous paints and

coating manufacturing operations that

would regulate wastewaters, both onsite and if sent off-site for treatment.33

10108 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

in 40 CFR part 63 (61 FR 34140, July 1, 1996), if

they are a major source of hazardous air pollutant

(HAPs) emissions defined in section 112 of the CAA

amendments of 1990, and if the wastes they receive

from off-site contain one or more HAPs.

34Based on an initial review of data from the

Study of Industrial Non-hazardous Waste Surface

Impoundments required under the Land Disposal

Program Flexibility Act. Also, in a 1995 EPA found

only 26 States had requirements for liners under

State regulations: see State Requirement for

Industrial Non-Hazardous Waste Management

Facilities, U.S. Environmental Protection Agency,

October 1995.

35We believe there is greater uncertainty about

the efficacy of liners in providing long-term

protection from releases from landfills, because the

wastes remain indefinitely. A synthetically lined

impoundment with a finite operational life of

perhaps 30 to 50 years is less likely to release

wastewater during the life of the unit. During

operation, leaks in the liner system would be

detected and presumably fixed; active use of an

impoundment can be stopped, drained, and liners

repaired. Also, the leachate collection system is

likely to prevent a significant release during

operation.

Thus, we are proposing paint

manufacturing waste liquids treated in

off-site treatment tanks are not subject to

today’s proposed listing.

D. Why Are We Proposing a Contingent

Management Listing for Liquid Paint

Manufacturing Wastes, and What Other

Options Are We Considering?

We are considering various options

for the listing for paint manufacturing

waste liquid (K180). Under the listing

proposed for K180, the wastes would

not be listed if they are managed in onsite storage and treatment tanks or

containers prior to discharge to a POTW

or under a NPDES permit. (Of course, if

the concentrations of the listing

constituents are below the regulatory

levels, the waste would not be

hazardous in any case.) We are

proposing this type of ‘‘contingent

management’’ listing because we did not

find significant risk from treatment or

storage in tanks, as noted above.

However, if a paint manufacturing waste

generator intends to send the waste offsite for treatment outside of tanks (and

waste constituents are not below the

listing levels), the waste would be K180

and would be subject to storage

requirements under Subtitle C. We

recognize that the regulation of the

onsite storage and treatment of the

waste in tanks prior to the waste being

shipped offsite may be unwarranted

because our risk analysis for tanks

shows no significant risk for liquid

paint manufacturing waste. Therefore,

we are soliciting comment on the option

of exempting wastes stored or treated

on-site in tanks or containers from being

a hazardous waste while it is stored onsite, regardless of what the ultimate

treatment or disposal practice might be.

This would mean that the point of

generation for K180 would be when the

waste is sent off-site, and that it would

not be classified as K180 hazardous

waste while it is stored or treated in

tanks or containers on-site prior to

shipment off-site for disposal.

The constituent levels we are

proposing are based on the possible

risks from management of the liquid

wastes in an off-site centralized

wastewater treatment system with an

unlined surface impoundment. We did

not complete a risk assessment for

possible risks for various other known

or potential management practices.

Given that we found risk in one

management scenario, but did not assess

risks from other major practices, we are

limiting the exemption from the listing

to the management practice that we

determined posed no significant risk,

i.e., management in tanks. Therefore, we

are proposing to list the paint

manufacturing waste liquids, unless

they are managed in tanks prior to

discharge under an NPDES permit or to

a POTW.

As discussed in Section II.G, the 3007

Survey showed that 21 paint

manufacturers reported sending their

liquid wastes to 24 off-site wastewater

treatment facilities. We contacted 9 of

these 24 and found one treatment

facility that reported using a lined

surface impoundment to treat two

different paint manufacturers’ liquid

wastes. Based on the weighting factors

used for our survey sample, we estimate

these 24 off-site wastewater treatment

facilities represent about 40 facilities in

the U.S. that may accept paint liquids.

While we cannot extrapolate the

information from nine wastewater

treatment facilities to the overall

population, we estimate that there could

be 4 to 5 treatment facilities that use

impoundments of some kind. The one

facility with an impoundment indicated

the unit was lined, however there are no

Federal regulatory requirements that

ensure this would be the case for other

impoundments throughout the country.

Hence, it may be reasonable to assume

that some of these impoundments may

be unlined for modeling purposes. We

note that surface impoundments are

used to treat wastewaters in general, and

that a recent study confirmed that a

significant portion of impoundments in

some industries are unlined.34

(However, this study focused primarily

on on-site impoundments used in

specific industries, and not commercial

off-site treatment facilities). Therefore, if

we assume management of liquid wastes

in an unlined impoundment is a

plausible management scenario, our

assessment suggests that the risks from

such management may present a

significant potential hazard to human

health and the environment for some

constituents of concern.

However, we are also seriously

considering not listing paint

manufacturing waste liquids, or using a

different approach for a listing, due to

the uncertainty in management

practices we assumed in our risk

assessment. While we are proposing to

list because of potential risks arising

from unlined surface impoundments,

we are considering the alternative of not

listing this waste because this may not

be a ‘‘plausible’’ management scenario.

As noted above, while the survey data

shows that management in an off-site

treatment facility is relatively common,

we found only one case where a surface

impoundment was in use. We estimate

that only 4 to 5 such impoundments

may be receiving any of the paint

manufacturing waste liquids from the

estimated 972 paint manufacturers.

Thus, management of these wastes in

surface impoundments appears to be an

infrequent occurrence. The number of

unlined impoundments receiving this

waste is more uncertain due to our

limited data on surface impoundments,

but the probability of off-site

commercial treatment facilities treating

paint manufacturing wastes in such

unlined units is likely to be even lower

than the number of facilities using

impoundments.

The effectiveness of liner systems

depends, in part, on how they are

designed. Composite and double liners

that combine two or more layers of liner

material with leachate collection and

leak detection should minimize leakage

to the subsurface during the period

when the leachate collection system is

actively managed. While it is difficult to

predict the level of protection afforded

by a liner system due to the uncertainty

concerning long-term performance, we

believe the level of protection could be

significant for a surface impoundment,

which will contain liquid wastes only

during its operating life.35 Therefore,

our assessment of an unlined surface

impoundment may overestimate

potential risks from this disposal

scenario.

The risk results from modeling

surface impoundments may also

overestimate risks for other reasons. As

noted in Section III.E, we used

impoundment data gathered in a 1985

Industrial D Screening Survey. We were

not able to distinguish off-site vs. on-site

impoundments from these data, so we

used a sample from all units in the

database. Because most impoundments

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10109

36 Discharges to surface waters are controlled

under the CWA and require an NPDES permit,

while discharges to a POTW are subject to State and

national pretreatment standards. Note that 40 CFR

261.4 reflects the RCRA statute and excludes ‘‘any

mixture of domestic sewage and other wastes that

passes through a sewer system to a POTW for

treatment’’ (40 CFR 261.4(a)(1)(ii)), and industrial

wastewater discharges that are point source

discharges subject to regulation under Section 402

of the CWA (40 CFR 261.4(a)(2)).

37U.S. Environmental Protection Agency, Office

of Solid Waste and Emergency Response,

Hazardous Waste Characteristic Scoping Study,

November 1996, and U.S. Environmental Protection

Agency, Office of Solid Waste and Emergency

Response, Evaluation of the Likelihood of DNAPL

Presence at NPL Sites, EPA 540–R–93–073,

September 1993.

38U.S. Environmental Protection Agency, Office

of Solid Waste, State Requirements for Industrial

Non-Hazardous Waste Management Facilities,

October 1995.

are part of on-site treatment processes

for industrial process wastewater, the

data include a variety of types of units

that may not be realistic for the off-site

commercial wastewater treatment

facilities we are attempting to model.

Our database contains units with

characteristics that are unlikely for large

off-site treatment facilities, i.e., many

units are relatively small (median area

about 3,200 m2) and have low flow rates

with long retention times (median

retention time about 0.5 years, 90th

percentile retention of 50 years). These

characteristics mean that many of the

impoundments used in the modeling

would have a fairly high fraction of

paint manufacturing waste, e.g., the

90th percentile value for fraction of

paint manufacturing waste in the unit

was one. We believe that off-site

commercial treatment units are more

likely to be larger and have much

shorter retention time, thereby reducing

the average fraction of paint

manufacturing waste in the treatment

units. While it is difficult to gauge the

importance of these characteristics in

our risk assessment results, these may

lead to an overestimate of impoundment

risks. We may use this factor, in

conjunction with a full review of all

comments, as an additional reason not

to list paint manufacturing waste

liquids.

We solicit any information on the

prevalence of surface impoundment

management of paint manufacturing

waste liquids, and any data related to

the use of surface impoundments, either

lined or unlined. After reviewing all

comments and reconsidering all

available information on the possible

risks from management of paint

manufacturing waste liquids, we may

decide not to list this waste.

Assuming we decide to finalize a

listing for paint manufacturing waste

liquids due to the potential for risks

from surface impoundments, we are also

soliciting comments and supporting

data on an alternative listing that would

exclude other practices, such as

incineration and fuel blending. We

could limit the scope of the listing so

that it would clearly apply only to

wastes managed in surface

impoundments. Thus, the listing could

specify that it would apply only if the

waste exceeded the regulatory

concentration levels, and if the waste

was managed in a surface

impoundment. We may decide that such

an approach is appropriate in this case

given that this was the only practice

modeled that presented unacceptable

risk, and because the practice may be

very infrequent. For the paint

manufacturing wastes at issue in today’s

proposal, we did not find significant

risks from management in tanks.36

The other reported management

practices of potential concern were

thermal treatment in incinerators,

cement kilns, and fuel blending. As

noted previously, in past listing

determinations where we have

attempted to assess risks from

incineration, we found that the potential

risks from the release of constituents

through incineration would be at least

several orders of magnitude below

potential air risks from releases from

tanks or impoundments (see listing

determination for solvent wastes at 63

FR 64371, November 19, 1998).

Although metal constituents would not

be destroyed in thermal treatment, we

expect the metal content of

nonhazardous paint manufacturing

waste liquids sent to incineration to be

low; this is consistent with the 3007

Survey data, which show no

nonhazardous paint manufacturing

waste liquids with significant metal

content. Limiting the listing to wastes

only managed in impoundments would

reduce the overall burden of the listing,

so that it would apply only to the

practice of most potential concern, i.e.,

surface impoundments.

E. Potential for Formation of NonAqueous Phase Liquids in Paint

Manufacturing Wastes

We considered the possibility that

some constituents in paint

manufacturing wastes might form

distinct nonaqueous phase liquids

(NAPLs). NAPLs can be an issue,

because once released to the subsurface

a number of difficult problems may

occur. Such problems include the

creation of a long-term NAPL source in

the subsurface and facilitated transport

of contaminants that have an affinity for

the NAPL fraction. The formation of

NAPLs is strongly dependent on the

specific wastes in question and the

management practice, and it is difficult

to predict when NAPLs might be

important. However, many of the

organic chemicals we evaluated for this

listing are highly water soluble and in

many cases volatile, thus most have

little potential for NAPL formation. EPA

has used a general approach in the

Hazardous Waste Characteristics

Scoping Study to identify which

chemicals have some potential to form

NAPLs based on water solubility and

other parameters.37 NAPL-forming

chemicals generally have relatively low

water solubilities (less than 5,000 mg/L)

and are liquids at ambient temperature.

Applying these criteria, the only non-TC

constituents of concern that may

potentially form NAPLs would be the

phthalates and the aromatic

hydrocarbons (ethylbenzene, styrene,

toluene, and xylenes). Any NAPLforming chemicals that are regulated

under the TC (i.e., the slightly soluble

chemicals benzene and

tetrachloroethylene) are unlikely to form

NAPLs in wastes, because the TC levels

are well below their water solubility.

Thus, wastes with TC constituents high

enough to form NAPLs would be

regulated as hazardous, and would not

be land disposed until treated.

We believe that paint manufacturing

wastes with the high organic content

needed to form NAPLs are unlikely to

be land disposed for several reasons.

First, high organic wastes are typically

sent for thermal treatment or recycling.

For example, see the final listing

determination for solvents (63 FR

64372, November 19, 1998); we found

that solvent wastes with high organic

content are usually thermally treated,

and that wastes sent to landfills

contained negligible amounts of solvent

(63 FR 64384). Also, many landfills are

unlikely to accept wastes with free

liquids, and in fact such a practice is

restricted under Federal regulations for

municipal solid waste landfills

(§ 258.28) and Subtitle C landfills

(§ 264.314). Similar restrictions, while

not federally mandated, are in place in

most States for off-site nonmunicipal

solid waste landfills.38

We believe that any paint

manufacturing waste liquids that may

be placed in impoundments or tanks at

offsite wastewater treatment facilities

are unlikely to contain significant

NAPLs. The nonhazardous paint

manufacturing waste liquids are nearly

all reported to be from aqueous washing

of equipment, with only one facility

reporting generating a nonhazardous

liquid from solvent cleaning; this

facility sent this waste to a fuel blender.

10110 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

39Also, the ‘‘mixture’’ rule (see 40 CFR

261.3(a)(2)(iii) and (iv)) provides that, with certain

limited exceptions, any mixture of a listed

hazardous waste and a solid waste is itself a RCRA

hazardous waste. We are not proposing any changes

to the mixture rule in today’s action.

40Note that a paint manufacturing waste solid

could be nonhazardous when generated, but

become hazardous later if management on-site led

to the waste becoming more concentrated and

exceeding the listing levels. If this occurs at the

paint manufacturing facility, it would become a

listed K179 waste.

All other waste solvents were coded and

managed as hazardous waste. This is not

surprising, given that many solvents

used for cleaning equipment would

yield wastes that are listed as hazardous

(F001 through F005), or exhibit a

characteristic, such as ignitability.

The nonhazardous water cleaning

liquids are mixed with other

wastewaters when treated in offsite

centralized wastewater treatment

systems, making significant NAPLs less

likely. As noted above in Section IV.A,

existing and proposed regulations under

the CAA would also tend to keep the

organic content of wastewaters low for

any chemical designated a hazardous air

pollutant, or HAP. Nearly all

constituents of potential concern we

identified for paint manufacturing

wastes are HAPs under the CAA. We

believe that these rules make it unlikely

that NAPLs would form in offsite

wastewater surface impoundments.

The information in the 3007 Survey

suggests that wastes with liquid or free

solvents are not disposed in landfills.

The waste data we collected from the

3007 Survey indicates that few of the

nonhazardous paint manufacturing

wastes of concern have the high organic

content necessary to form a separate

NAPL phase. Of the nearly 200

nonhazardous wastes reported (125

solids, 74 liquids), only 15 were

reported to have levels of any organic

constituent above relatively low levels

(1%). In most of these 15 cases, the

organic constituents included levels of

associated polymers (polymers of

acrylonitrile, styrene, and vinyl acetate).

The few nonhazardous wastes with

significant concentrations of a

constituent that might form a NAPL (3

wastes reported to contain 2% or 6%

butyl benzyl phthalate) went to

incineration (one waste with 10%

xylene went to unspecified offsite

treatment). The remaining wastes with

significant organic content contained

ethylene glycol, which is highly

unlikely to form NAPLs given its

extreme solubility in water. In any case,

only one waste with organic content

above 1% was reported to go to a

landfill (an off-specification paint

manufacturing waste with 2.5%

ethylene glycol). We recognize that the

information for constituents in the 3007

Survey is limited, however, the data in

hand show that generators do not

appear to be sending paint

manufacturing waste with high organic

content to land disposal. Even in the

event some generators were sending

some wastes with higher potential

NAPL-forming chemicals to land-based

units, the volumes would be relatively

small. This makes it unlikely that

organic levels in these units would be

sufficient to generate a NAPL phase that

would impact releases to groundwater.

As noted previously in Section IV.A,

EPA is planning to propose a MACT

standard to address potential releases of

volatile HAPs from paint manufacturing

facilities. The proposed MACT would

place limits on HAPs in wastewaters

and keep organic levels in paint

manufacturing waste relatively low.

As another check on the potential for

NAPL formation in paint manufacturing

wastes, we examined the Survey data

for discarded off-specification paint.

Our survey data indicated that disposal

of off-spec products in landfills was

fairly infrequent (13 facilities reported a

total of 941 metric tons in 1998). From

follow-up telephone calls to these

generators, the facilities almost

uniformly indicated that the offspecification material was not in liquid

form; the wastes were in solid resins,

hard cured by drying, or otherwise

solidified prior to disposal.

F. Scope of the Listings and the Effect

on Treatment Residuals

Today’s proposal would result in two

new hazardous waste listings that differ

from previously promulgated listed

hazardous wastes in that they include

constituent-specific concentrations to

define the scope of the listings. The

primary purpose of these

‘‘concentration-based listings’’ is to

establish levels at the point of

generation of a waste, above which that

waste is considered to be a listed

hazardous waste (i.e., ‘‘entrance’’

levels). Wastes that are generated below

these levels would not be subject to

these listings.

We are also proposing to use the

listing concentrations as ‘‘exit’’ levels

for residues from paint manufacturing

waste solids (K179). Residuals from the

treatment, storage, or disposal of listed

hazardous wastes are usually classified

as hazardous wastes based on the

‘‘derived-from’’ rule (see 40 CFR

261.3(c)(2)(i)).39 The use of the listing

concentrations as exit levels for

treatment residues would terminate the

applicability of the derived-from rule

and, therefore, the treatment residues

would no longer be considered a listed

hazardous waste. We are specifically

proposing to add language to the

standards in 40 CFR 261.3 to describe

this self-implementing process for paint

manufacturing waste solids (K179). For

reasons discussed below, we are

proposing that generators cannot use the

listing levels for paint manufacturing

waste liquids (K180) as exit levels, even

if the waste falls below those levels

through treatment. In the following

discussion we also clarify further the

status of liquids derived from paint

manufacturing waste solids and viceversa, and address mixtures or treatment

residues that occur away from the paint

manufacturing facility, such as at an offsite treatment facility.

We envision that the proposed listing

of the paint manufacturing waste solids

(K179) would function similarly to a

hazardous waste characteristic such as

toxicity, except that the concentration

levels would be the basis for deciding a

waste is hazardous only when applied

to the solids as generated or managed at

a paint manufacturing facility. Thus, a

waste would become hazardous K179

only if it meets or exceeds the listing

levels at the paint manufacturing

facility. Structuring the listing for paint

manufacturing waste solids in this way

avoids implications for solids generated

off-site from a nonhazardous waste that

in part, or in whole, originated from a

paint manufacturing facility. For

example, we avoid small quantities of

nonhazardous paint manufacturing

waste liquids treated at an off-site

commercial wastewater treatment

facility subjecting any liquid or solid

derived from them at an offsite

treatment facility to evaluation against

the levels proposed today for paint

manufacturing wastes.40

We are proposing, however, that the

paint manufacturing waste solids that

are hazardous K179 may be treated to

generate nonhazardous waste, if the

treatment results in constituent

concentrations that are below the listing

levels in K179. Note that land disposal

restrictions would still apply, as they do

to ‘‘decharacterized’’ waste that was

hazardous only due to a hazardous

waste characteristic, until the waste

meets the LDR treatment requirements

(see Section VI of today’s notice for the

proposed standards). Thus, if treatment

of K179 yields constituent levels that

are below the listing levels and meet the

appropriate LDR standards, the waste

may be disposed as a nonhazardous

waste (e.g., in a Subtitle D landfill). We

are specifically proposing to add

language to the standards in 40 CFR

261.3 to exempt solids that previously

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10111

41Furthermore, wastes that are otherwise

prohibited from land disposal may be treated in

surface impoundments or series of impoundments

that meet certain conditions (see section 268.4).

42This is consistent with current EPA regulations

regarding ‘‘delisting petitions’’ under 40 CFR

260.22(c) and (d). If modeling indicates the waste

does not pose a significant hazard, EPA exempts it

from the hazardous waste listing. However, as

required under the regulations, we do not exempt

wastes that exhibit a hazardous waste characteristic.

met the K179 listing, if the constituent

levels are below the listing levels. We

request comment as to whether the

derived-from rule should apply to the

K179 paint manufacturing wastes solids

beyond the paint manufacturing site as

they would in a traditional listing.

However, we believe that our evaluation

of the risks of disposal of solid K179

would apply equally well to solids that

have been treated.

The proposed listing of paint

manufacturing waste liquids (K180)

operates like a characteristic only in the

sense that if a paint manufacturing

waste is below the listing level at the

point of generation, it is not covered by

this listing. However, it would act as a

traditional listing if a paint

manufacturing liquid waste generated at

a paint manufacturing facility meets or

exceeds the listing levels, in that liquids

derived from K180 remain subject to the

listing even if they fall below those

levels through dilution or treatment. We

are proposing that liquid residuals from

K180 wastes would remain hazardous,

because the surface impoundment

scenario we used to set the listing

concentrations for K180 assumed that

the liquid paint wastes are mixed with

other wastewaters in an off-site

treatment facility. The listing levels we

set for K180 are for the waste prior to

any mixing and would necessarily be

higher than the levels of the

constituents that may exist in the offsite impoundment. We believe that the

listing levels for K180 would not be

appropriate for use in exiting the RCRA

hazardous waste regulatory program,

because they do not correspond to riskbased levels for the diluted waste in the

impoundment.41 Therefore, we are

proposing that any liquid wastes

derived from K180 would remain listed

as K180 (unless the waste is excluded

under the petition process set out in

§§ 261.20 and 261.22, typically known

as ‘‘delisting’’).

We are proposing that the scope of the

listings reflect the practical situations

that arise at the site of paint

manufacturing if derived-from wastes

are in a different form than the original

paint waste, i.e., if liquid wastes are

derived from K179, and if waste solids

are derived from K180. In such cases,

we believe that is more appropriate to

evaluate these on-site derived-from

wastes against the listing concentrations

that reflect the corresponding waste

form. Solids generated from K180 at the

site of paint manufacturing would no

longer be K180, but would be subject to

classification as K179, if the waste meet

or exceed the listing levels for K179.

Under this approach, solids generated

from K180 on-site that are below the

listing levels for K179 would not be a

hazardous paint waste. Similarly, a

liquid waste derived from K179 at the

site of paint manufacturing would be

evaluated against the K180 listing

conditions; if such a liquid is either

managed exclusively in tanks or

containers, or if the constituents in the

liquid are below the listing levels for

K180, the K179-derived liquid would

not be hazardous paint waste. We have

included text in the listing descriptions

for K179 and K180 to establish these

changes in waste codes for on-site

derived-from wastes.

We are not proposing that the above

change in waste codes would apply to

waste residuals generated off-site. We

believe that changes in waste codes

would be confusing for off-site

treatment facilities and may be difficult

to track and enforce. Furthermore, K179

or K180 wastes that are sent off-site for

treatment would likely be treated at a

facility that accepts and treats a wide

variety of hazardous wastes, and any

derived-from wastes generated from

treatment of K179 or K180 would likely

carry multiple hazardous waste codes.

Therefore, we are proposing to allow the

mixture-derived from rules to operate

normally off-site, except for the

exemption for treated K179 noted

previously. This approach still allows a

treatment facility to use the exemption

to the derived-from rule we are

proposing for waste solids (K179); the

treatment facility would have to treat

only for the K179 hazardous

constituents of concern (provided no

new characteristics are imparted by the

treatment process).

Finally, we stress that solids and

liquids derived off-site from

nonhazardous paint manufacturing

liquids are not listed paint

manufacturing wastes (i.e., not K179 or

K180). Such wastes are not paint

manufacturing wastes, in that the waste

management facility is not directly

involved in the manufacture of paint

products. Therefore, these wastes would

not be subject to the listing criteria for

K179 or K180.

G. Relationships of the Proposed

Listings to the TC

Fifteen constituents that we assessed

for paint manufacturing waste are also

constituents covered by the broadlyapplicable Toxicity Characteristic (TC).

We modeled these constituents, along

with the constituents not covered by the

TC, to see if for any reason the modeling

approach would indicate a significant

hazard would be posed that is not

already addressed by the TC. This might

have occurred, for example, if the

windblown dust pathway had produced

significantly lower concentrations.

However, we found that, with one

exception, the concentrations of concern

predicted in the paint-waste modeling

were above the levels already regulated

by the TC.

For the fourteen constituents for

which the paint modeling yielded

concentrations higher than TC levels,

we are not setting levels in this listing,

and the TC will continue to apply. We

are proposing to retain the more

restrictive TC levels for these

constituents to protect human health

and the environment. The specific

levels calculated for paint

manufacturing waste for this proposal

represent amounts of constituents that

can be safely disposed for the relatively

small volumes of paint manufacturing

waste solids and liquids subject to

today’s proposed listing. The TC levels,

in contrast, broadly address all wastes

in the country subject to RCRA Subtitle

C. They were designed to protect human

health and the environment from the

possibility that many waste streams

from multiple generators could be

disposed of in a single landfill.

Consequently, our TC risk assessments

reflect much higher waste volumes

arising from a broad spectrum of

industries and sources. If we analyzed

by itself any individual, small-volume

waste stream subject to the TC, we

might find that it did not pose risks at

TC levels. However, a set of smaller

waste streams from multiple sources

could pose risks if disposed together

with other wastes. Consequently, we

believe we need to retain the broad,

multiple-waste TC approach.42

For the remaining constituent,

pentachlorophenol, the paint listing

modeling results (at the 90th percentile

probabilistic level) showed a protective

leachable concentration of 66 mg/L.

This is slightly lower than the existing

TC level (100 mg/L). Upon review of

3007 survey data on prevalence,

however, we found that this constituent

is not currently used in paint

production and it is not likely to be

found in paint manufacturing wastes.

While pentachlorophenol has

apparently been used historically as a

biocide in paint formulations, most

10112 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

43See the cancellation for non-wood uses at 52

FR 2282, January 21, 1987.

pesticide uses of this chemical have

been halted.43 In addition, despite the

fact that this is a TC constituent, this

chemical was not reported in any of the

wastes in the 3007 survey data. Given

these facts we see no reason to include

pentachlorophenol as a listing

constituent for paint manufacturing

wastes. The TC, of course, would

continue to apply to any paint

manufacturing waste containing

pentachlorophenol, and wastes

exceeding the TC level would be

regulated as hazardous.

H. What Is the Status of Landfill

Leachate From Previously Disposed

Wastes?

Leachate derived from the treatment,

storage, or disposal of listed hazardous

wastes is classified as a hazardous waste

by virtue of the ‘‘derived-from’’ rule in

40 CFR 261.3(c)(2). The Agency has

been clear in the past that hazardous

waste listings apply to wastes disposed

of prior to the effective date of a listing,

even if the landfill ceases disposal of the

waste when the waste becomes

hazardous. (See 53 FR 31147, August

17, 1988). We also have a wellestablished interpretation that listings

apply to leachate derived from the

disposal of listed hazardous wastes,

including leachate derived from wastes

meeting the listing descriptions that

were disposed before the effective date

of a listing. We are not reopening nor

taking comment on any of these issues

with this proposed rulemaking.

Of course, as set out in detail in the

August 1988 notice, this does not mean

that landfills holding wastes that are

listed now as hazardous become subject

to Subtitle C regulation. However,

previously disposed wastes now

meeting a listing description, including

residues such as leachate that are

derived from such wastes, and that are

managed actively do become subject to

Subtitle C regulation. See 53 FR at

31149, August 17, 1988. In many,

indeed most, circumstances, active

management of leachate would be

exempt from Subtitle C regulation

because the usual pattern of

management is discharged either to

POTWs via the sewer system, where

leachate mixes with domestic sewage

and is excluded from RCRA jurisdiction

(see RCRA section 1004(27) and 40 CFR

261.4(a)(1)), or to navigable waters, also

excluded from RCRA jurisdiction (see

RCRA section 1004(27) and 40 CFR

261.4(a)(2)). In addition, management of

leachate in wastewater treatment tanks

prior to discharge under the CWA is

exempt from RCRA regulation (40 CFR

264.1(g)(6)).

It is possible that waste solids within

the proposed scope of K179 may have

been disposed in landfills. Because we

are proposing that liquids derived from

the offsite management of K179 would

continue to carry the K179 waste code,

leachate from a landfill that accepted

paint manufacturing waste solids might

be classified as K179. While we do not

believe that it is likely that liquid K180

wastes would have been disposed in

landfills in significant quantities, a

landfill may have accepted a derivedfrom K180 solid (as a result of offsite

treatment). However, the proposed

listings for the two paint manufacturing

wastes are concentration-based listings,

and it would be difficult to know

whether the previously disposed wastes

that meet the narrative description of

K179 did in fact have constituent

concentrations that would be at or above

the K179 listing levels. We don’t

anticipate that records documenting the

concentrations of proposed constituents

of concern for these wastes exist for

previously disposed wastes. Therefore,

absent a finding that the disposed

wastes would have met the listing being

proposed today, it is unlikely that the

previously disposed wastes would be

classified as K179, and thus unlikely

that landfill leachate and gas condensate

derived from these wastes that are

actively managed would be K179.

However, if actively managed landfill

leachate and gas condensate derived

from the newly-listed wastes proposed

for listing in today’s notice could be

classified as K179, we would be

concerned about the potential

disruption in current leachate

management that could occur, and the

possibility of redundant regulation. This

issue was raised to the Agency in the

context of the petroleum refinery waste

listings (see 63 FR 42173, August 6,

1998). A commenter expressed concern

that, because some of the commenter’s

nonhazardous waste landfills received

newly-listed petroleum wastes prior to

the effective date of the listing decision,

the leachate that is collected and

managed from these landfills would be

classified as hazardous. The commenter

argued that this could lead to vastly

increased treatment and disposal costs

without necessarily any environmental

benefit. After examining and seeking

comment on this issue, we published a

final rule that temporarily defers

regulation of landfill leachate and gas

condensate derived from certain listed

petroleum refining wastes (K169–K172)

that were disposed before, but not after,

the new listings became effective,

provided certain conditions are met. See

64 FR 6806, February 11, 1999. We

proposed listing determinations for

wastes from the dye and pigment

industries (64 FR 40192, July 23, 1999)

and from the inorganic chemical

manufacturing industries (65 FR 55684,

September 14, 2000) that propose

deferrals for similar wastes derived from

landfills. We also promulgated a listing

determination for the chlorinated

aliphatics industry (65 FR 67068,

November 8, 2000) that retains the

deferral.

At the time this issue was brought to

the Agency’s attention in the context of

the petroleum refinery waste listings,

EPA’s Office of Water had recently

proposed national effluent limitations

guidelines and pretreatment standards

for wastewater discharges—most

notably, leachate—from certain types of

landfills. See 63 FR 6426, February 6,

1998. In support of this proposal, EPA

conducted a study of the volume and

chemical composition of wastewaters

generated by both subtitle C (hazardous

waste) and Subtitle D (nonhazardous

waste) landfills, including treatment

technologies and management practices

currently in use. Most pertinent to

finalizing the temporary deferral for the

petroleum refining wastes, EPA did not

propose (or subsequently finalize)

pretreatment standards for subtitle D

landfill wastewaters sent to POTWs

because the Agency’s information

indicated that such standards were not

required (see 65 FR 3008, January 19,

2000).

The conditions included in the

temporary deferral we published on

February 11, 1999 are that the leachate

is subject to regulation under the Clean

Water Act, and the leachate cannot be

stored in surface impoundments after a

period of two years (February 13, 2001).

See 40 CFR 261.4(b)(15). We believe that

it was appropriate to temporarily defer

the application of the new waste codes

to such leachate in order to avoid

disruption of ongoing leachate

management activities while the Agency

decides if any further integration is

needed of the RCRA and CWA

regulations consistent with RCRA

section 1006(b)(1). We believe that it is

still appropriate to defer regulation and

avoid leachate management activities,

and to permit the Agency to decide

whether any further integration of the

two programs is needed. As such, we

would be concerned about forcing

pretreatment of leachate even though

pretreatment is neither required by the

CWA, nor needed. Therefore, we are

proposing to temporarily defer the

regulation of landfill leachate and gas

condensate derived from management of

K179 and K180 wastes that we are

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10113

44 Due to the uncertainties in our assessment of

the management of paint manufacturing waste

liquids in surface impoundments, we are

considering an alternative proposal not to list paint

manufacturing waste liquids. We describe this

alternative elsewhere in this notice (see Section

IV.D). The following discussion describes the

approach we are proposing for paint manufacturing

waste liquids if K180 is listed.

proposing for listing in today’s rule,

with the same conditions as described

in 40 CFR 261.4(b)(15) for petroleum

wastes. We request comment on this

proposed conditional deferral.

V. Proposed Generator Requirements

for Implementation of ConcentrationBased Listings

We are proposing that these

concentration-based listings be selfimplementing. This means that you (the

waste generator) would be responsible

for determining whether or not your

wastes are K179 or K180 listed

hazardous wastes at the point of

generation based on the proposed

procedures we describe below.44 We are

proposing a two-tiered implementation

approach for the concentration-based

listings, based on waste form (liquids or

solids) and total annual quantity of the

paint manufacturing wastes generated at

each paint production facility, that you

could use to determine whether your

wastes are nonhazardous. Before using

the proposed two-tiered approach, you

would determine if any of your paint

manufacturing waste solids or paint

manufacturing waste liquids could

contain any of the constituents of

concern identified for these types of

wastes (see Tables IV.A–1 and IV.A–2).

We are proposing that you could use

knowledge of your wastes (e.g.,

knowledge of the constituents in your

wastes based on existing sampling and

analysis data and/or information about

raw materials used, production

processes used, and degradation

products formed) to make this initial

determination regardless of the quantity

of waste you generate. If any portion of

your wastes at the point of generation

will not contain any of the constituents

of concern identified for your specific

type of wastes, you would not have to

use the two-tiered approach to

determine whether those wastes are

nonhazardous (i.e., are not K179 or

K180 listed wastes). Paint

manufacturing wastes described in the

K179 or K180 listings, but which do not

contain any of the constituents of

concern for K179 or K180, would not be

K179 or K180 hazardous wastes at the

point of generation. You should note,

however, that absence of the

constituents of concern in some portion

of your wastes would not relieve you,

the generator, from hazardous waste

determination requirements for all other

wastes that do contain constituents of

concern.

If your paint manufacturing wastes

contain one or more constituents of

concern, then you would either use the

two-tiered approach to determine

whether they are nonhazardous or

handle them as hazardous. Under this

proposed approach, if you generate or

expect to generate 40 metric tons or less

of paint manufacturing waste solids or

100 metric tons or less of paint

manufacturing waste liquids annually,

then you would have the option of

testing the wastes or using knowledge of

the wastes to determine whether they

are nonhazardous. However, if you

generate or expect to generate over 40

metric tons of paint manufacturing

waste solids or over 100 metric tons of

paint manufacturing waste liquids, then

you would be required to test the wastes

annually to determine whether they are

nonhazardous. Our reasons for

proposing a two-tiered approach and

requiring annual testing of larger

quantity wastes are discussed in Section

V.C. The exception to the annual testing

requirement to determine whether

wastes are nonhazardous, regardless of

annual waste quantities generated,

would be for paint manufacturing waste

liquids that are stored or treated

exclusively in tanks or containers and

then discharged to a POTW or under a

NPDES permit.

We are proposing the constituents of

concern for the two types of wastes

(solids and liquids) from paint

production that are listed in Tables

IV.A–1 and IV.A–2. We are also

proposing the listing (hazardous

concentration) level for each of these

constituents that are in the same tables.

We are proposing that you use this

information, in conjunction with testing

or knowledge of constituent levels in

your wastes, to determine whether or

not the wastes are hazardous.

Unless you make a determination that

your wastes are nonhazardous for K179

or K180, using either knowledge that the

wastes do not contain any of the

constituents of concern or the specified

procedures described in section C

below, then we are proposing that your

wastes would be hazardous and you

would be subject to the existing

requirements under RCRA for persons

who generate hazardous waste. Thus, if

you are not already a hazardous waste

generator, you would have to notify the

EPA, according to section 3010 of

RCRA, that you generate a hazardous

waste. You would also be subject to all

applicable requirements for hazardous

waste generators in 40 CFR Part 262.

If you determine that your paint

manufacturing waste solids or liquids

are nonhazardous, we are proposing to

require, under the authority of sections

2002 and 3007 of RCRA, that you keep

certain records (see Section E below) of

your wastes at the generating site (onsite). Following the initial

nonhazardous determination, you

would be obligated to ensure that your

wastes continue to meet all of the

proposed conditions and requirements

for the wastes to be deemed

nonhazardous. Accordingly, you should

also note that regardless of any type of

nonhazardous determination that you

make for your wastes, the wastes would

be hazardous if we test and find that

they actually have constituents of

concern at or above the listing levels.

A. Would I Have to Determine Whether

or Not My Wastes Are Hazardous?

Yes, we are proposing that you must

determine whether or not your wastes

are hazardous K179 or K180 wastes.

This hazardous waste listing

determination could be made in either

of two ways. First, you could assume

that your wastes are hazardous at the

point of generation. If you do this, then

you could forego the requirement for

testing or using knowledge of the wastes

to make a hazardous waste

determination. In such a case, your

wastes would be subject to all

applicable RCRA Subtitle C hazardous

waste requirements, including LDR

requirements, either as of effective date

of the final rule or as of initial

generation of the wastes. Second, if you

want the opportunity to determine that

your wastes are nonhazardous at the

point of generation (and therefore not

subject to Subtitle C hazardous waste

requirements), we are proposing that

you must either test the wastes or use

knowledge of constituent concentrations

in the wastes using the procedures

described in Section C below. The only

exception to using procedures in

Section C to determine that your wastes

are nonhazardous would be if you

generate paint manufacturing waste

liquids that will be stored or treated

exclusively in tanks or containers.

B. How Would I Manage My Wastes

During The Period Between the Effective

Date of The Final Rule and Initial

Hazardous Waste Determination for My

Wastes?

If you generate wastes that are

described in either K179 or K180, we

are proposing that you could not

dispose of your wastes as nonhazardous

until you complete an initial

determination which shows that your

wastes are nonhazardous except for

10114 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

waste liquids managed exclusively in

tanks or containers prior to discharge to

a POTW or under a NPDES permit. In

the interim (from the time you generate

the wastes to the time you make a

determination on your wastes), you

would be responsible for storing your

wastes properly. If your wastes are

determined to be hazardous and you are

not complying with the Subtitle C

storage requirements during the interim

period, then you would be subject to an

enforcement action for improper

storage.

C. What Procedures Would I Follow to

Determine If My Wastes Are

Nonhazardous?

We are proposing that you use the

following procedures annually to

determine if your wastes, which contain

one or more constituents of concern, are

nonhazardous at the point of generation:

1. You must use the previous year’s waste

generation data (previous 12 consecutive

months) or, if this data is not available,

estimate the total annual quantities of paint

manufacturing waste solids and paint

manufacturing waste liquids that you expect

to generate over the next 12 consecutive

months based on current knowledge. You

must combine the quantities of hazardous

wastes (characteristic and otherwise listed)

and nonhazardous wastes that meet the

listing description for K179 or K180 to

separately determine the total annual waste

quantities for both the paint manufacturing

waste solids and paint manufacturing waste

liquids. Then, you must record the total

annual quantities of paint manufacturing

waste solids and paint manufacturing waste

liquids that you expect to generate. If you

initially estimate that your waste generation

would fall under the low volume tier and, at

any time within the 12 month period, the

actual quantities of wastes you generate fall

within the upper volume tier, from that

point, you would be subject to the upper tier

waste analysis requirements (see step 2

below). If you have not already tested your

wastes, you must test your wastes. We are

proposing that a new 12 month period for

hazardous waste determination would start

when you actually exceed the lower volume

tier limit.

2. You must use the recorded total annual

quantities of paint manufacturing waste

solids and paint manufacturing waste liquids

generated by your facility to determine the

appropriate annual waste analysis

requirement for your wastes in accordance

with the following tables:

TABLE V.C–1.—TIERED WASTE ANALYSIS REQUIREMENTS FOR SOLIDS

Total annual quantity of hazardous and nonhazardous paint manufacturing waste solids Annual waste analysis requirement

40 metric tons and less ............................................................................ Test Wastes or Use knowledge of Wastes.

Over 40 metric tons .................................................................................. Test Wastes.

TABLE V.C–2.—TIERED WASTE ANALYSIS REQUIREMENTS FOR LIQUIDS

Total annual quantity of hazardous and nonhazardous paint manufacturing waste liquids Annual waste analysis requirement a

100 metric tons and less .......................................................................... Test Wastes or Use knowledge of Wastes.

Over 100 metric tons ................................................................................ Test Wastes.

aThis requirement does not apply if the liquid wastes are stored or treated exclusively in tanks or containers and then sent to POTW or discharged under a NPDES permit.

We are proposing to establish the

volume cut-offs in the above tables

based on the § 3007 survey data on the

annual quantities of solid and liquid

wastes generated by paint production

facilities. We used these data to develop

the distributions for total hazardous and

nonhazardous solid and total hazardous

and nonhazardous liquid waste

quantities generated across the sampled

population of paint production facilities

(see docket for Document on

Distributions of Paint Production

Wastes Generated). It was evident from

these distributions that a relatively large

percentage of the total hazardous and

nonhazardous paint manufacturing

wastes are generated by a relatively

small percentage of the paint production

facilities. For both paint manufacturing

waste solids and liquids, approximately

90 percent of the total hazardous and

nonhazardous wastes are generated by

fewer than 20 percent of the paint

production facilities. Based on this

observation and in order to minimize

the burden on small generators, we

decided to propose this two-tiered

implementation approach for the

concentration-based listings. The tiered

approach will allow small generators

the option of testing or using knowledge

of their wastes to determine whether or

not their wastes are hazardous.

The annual quantity cut-off for wastes

above which testing is required (40

metric tons for waste solids and 100

metric tons for waste liquids) is

intended to ensure that the largest

quantities of wastes generated by paint

production facilities are tested and, at

the same time, to minimize the burden

on small generators. Using the cut-off

quantities should result in

approximately 90 percent of the total

hazardous and nonhazardous paint

manufacturing waste solids and paint

manufacturing waste liquids being

tested annually. Using the cut-off

quantities also means that fewer than 20

percent of the facilities would be

required to test their wastes annually,

and more than 80 percent of the

facilities would have the option of using

knowledge. We believe that larger

quantities of wastes have the potential

for posing greater environmental risk

than smaller quantities of wastes if a

nonhazardous determination based on

knowledge turns out to be inaccurate.

Therefore, we believe it is reasonable to

require larger quantity waste generators

to test their wastes annually to make a

determination, while smaller quantity

waste generators are given the option to

either test their wastes or use knowledge

of their wastes annually to make a

determination. We request comment on

the appropriateness of giving smaller

quantity waste generators the option of

using knowledge of their wastes

annually. We will consider requiring

smaller quantity waste generators to test

their wastes annually, like the larger

quantity waste generators, if significant

and defensible arguments are presented

by commenters to support these

requirements as necessary and

appropriate.

We also request comment on an

alternative to the two-tiered

implementation approach discussed

above for implementing the

concentration-based listings proposed in

today’s rule. We could adopt a more

streamlined approach for waste

generators to use in implementing the

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10115

concentration-based listings for these

wastes. The streamlined

implementation approach would allow

you to rely on process knowledge or

testing (i.e., lower volume tier

requirements) regardless of the volume

of waste generated. If the wastes contain

any constituent of concern at or above

the final risk-based listing levels, the

waste would be subject to Subtitle C

requirements. The streamlined

implementation approach would be

similar to the existing program for

determining whether a waste exhibits a

hazardous characteristic. Although we

prefer the two-tiered approach being

proposed in today’s rule, we will give

careful consideration to any arguments

presented or relevant waste analysis

data submitted in response to today’s

proposal (e.g., data showing that only a

small portion of the waste streams in the

industry exceed the listing levels) in

order to decide whether a more

streamlined approach is warranted.

1. Testing Wastes

If the total annual quantity of your

paint manufacturing waste solids or

paint manufacturing waste liquids

which meet the listing description of

K179 or K180 falls into the tier where

testing is required (and you have

decided not to assume that your wastes

are hazardous at the point of

generation), we are proposing that you

must test your wastes to determine

whether they are nonhazardous. (Even if

testing is required to determine that

your wastes are nonhazardous, you

could still use knowledge of your wastes

to document that a constituent (or

constituents) could not be present in

your wastes and not test for that

constituent (or constituents)). However,

knowledge of the wastes could not be

used to determine the level of

constituent in your wastes.

For those wastes that you must test,

we are proposing that you use the

following procedures:

(i) Develop a waste sampling and analysis

plan (if you do not already have one that is

appropriate) to collect and analyze samples

that are representative of your wastes. We

discuss the waste sampling and analysis plan

later in this section.

(ii) From the list of constituents of concern

for paint manufacturing waste solids or paint

manufacturing waste liquids, select the

constituents that are reasonably expected to

be present in your wastes based on your

knowledge of the wastes (e.g., knowledge of

the constituents in your wastes based on

existing sampling and analysis data and/or

information about raw materials used,

production processes used, and degradation

products formed).

(iii) Collect an appropriate number of

samples that are representative of your

wastes and analyze each for the constituents

of concern selected in step (ii).

(iv) Compare the sampling and analysis

results for the constituents of concern in your

wastes to the listing levels established for

these constituents to determine if your

wastes are nonhazardous.

(v) After completing annual testing

requirements for your wastes, if all samples

taken during any three consecutive years are

determined to be nonhazardous, then the

annual testing requirements for your wastes

are suspended.

(vi) After suspension of the annual testing

requirements for your wastes, if paint

manufacturing, formulation, or waste

treatment processes are significantly altered

(i.e., if it could result in significantly higher

levels of the constituents of concern for K179

or K180), then the annual testing

requirements for your wastes are reinstituted.

In order to again suspend the annual testing

requirements for your wastes, the

requirement under step (v) above has to be

met.

a. Waste Sampling and Analysis Plan.

Whenever you are required to test, we

are proposing that you must develop a

waste sampling and analysis plan prior

to testing your wastes. In developing a

sampling and analysis plan, you would

have to consider any expected

fluctuations in concentrations of

constituents of concern over time. The

sample design should be described in

the waste analysis plan. The sample

design and the sensitivity of the

analytical methods used should be

sufficient to determine whether the

levels of the constituents of concern in

the wastes are above or below the listing

concentrations for these constituents.

We do not propose to specify a

particular number of samples that you

would need to collect annually to obtain

representative data for your wastes. The

number of samples required to

determine that the concentrations of

constituents of concern in your wastes

are below the listing levels for these

constituents would depend on how

close the actual concentrations were to

the listing concentrations and on the

variability of the wastes you generated

during the course of the year.

As stated in step (ii) of the procedures

specified above, you would have to test

for the constituents of concern that are

reasonably expected to be present in

your wastes. Also, as discussed

previously, you might use knowledge of

the wastes to document that a

constituent (or constituents) could not

be present in your wastes. If you

determine that a constituent (or

constituents) could not be present in

your wastes, then you would not need

to test for it. However, if you determine

that your wastes are nonhazardous, then

you would be responsible for ensuring

that your wastes do not have any

constituents of concern at or above the

listing levels.

We are not proposing whether you

must use grab or composite sampling to

obtain samples that are representative of

your wastes. However, we are proposing

that, following a nonhazardous

determination for your wastes,

enforcement by EPA or an authorized

State would be based on grab samples.

It would be your responsibility to

ensure that your sampling and analysis

is unbiased, precise, and representative

of your wastes. We are not proposing to

require the use of SW–846 methods to

comply with these requirements. We are

proposing to allow the use of either

SW–846 methods or alternative

methods, so long as you can

demonstrate that the selected methods

have the appropriate sensitivity, bias,

and precision to determine the presence

or absence of the constituents of

concern at or below the listing

concentrations. You would be required

to document the: (1) Detailed standard

operating procedures (SOPs) for the

sampling and analysis protocols that

you used; (2) sensitivity and bias of the

measurement process; (3) precision of

the analytical results for each batch of

waste (or ‘‘super’’ batch) tested; and (4)

analytical results.

We would consider the analytical

results adequate to demonstrate that

concentrations for the constituents of

concern in your wastes are below the

listing concentrations for these

constituents if: (1) You determined the

concentrations without dilution of the

wastes (i.e., no waste or other material

were added to your wastes, after the

point of generation, which did not meet

the listing description of K179 or K180)

and (2) you conducted an analysis in

which the constituents of concern

spiked at their listing levels indicates

that the constituents of concern are

present at those levels within analytical

method performance limits (e.g.,

sensitivity, bias, and precision). To

determine the performance limits for a

method, we recommend following

quality control (QC) guidance provided

in Chapters One and Two of SW–846.

Following sampling and analysis, if

none of your waste samples contain any

of the constituents of concern at

concentrations equal to or greater than

the listing levels established for these

constituents, then you would determine

that your tested wastes are

nonhazardous. Once you have

determined your tested wastes to be

nonhazardous, you would decide if

these wastes are representative of the

wastes that you will generate for the

remainder of the year. If your tested

wastes are representative (or you can

10116 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

reliably determine that these wastes

exhibited the maximum concentrations

for the constituents of concern), then

you could determine that the wastes (or

certain type of wastes) that you generate

for the remainder of the year are also

nonhazardous. As stated earlier,

following a nonhazardous

determination, you would have an

obligation to ensure that your wastes

continue to meet all of the conditions

(i.e., constituents of concern in your

wastes remain below listing levels) and

requirements (i.e., records that support

a nonhazardous determination) for the

wastes to be deemed nonhazardous. We

are also proposing annual follow-up

sampling and analysis for wastes that

you determine to be nonhazardous to

check that these wastes continue to

remain nonhazardous. However, if any

of your waste samples contain any of

the constituents of concern at a

concentration equal to or greater than

the listing level set for that constituent,

your wastes would be listed hazardous

wastes and are thereby subject to all

applicable RCRA Subtitle C hazardous

waste requirements.

We are proposing that the maximum

concentration of any constituent

detected in any sample must be below

the established listing level in order for

you to determine that the waste is

nonhazardous. We are proposing this

approach because we believe it is the

most straightforward to ensuring

concentrations are below risk-based

listing levels. However, we request

comment on whether the generator

should be allowed to average the

concentrations of constituents detected

in multiple waste samples taken from

some quantity of waste generated or

collected over a certain period of time

(e.g., 60 days). Under that approach, the

generator would calculate

concentrations using an upper

confidence limit on the mean (e.g., 95th

percentile) to compare to the listing

levels established for the constituents.

We also request comment on whether

the annual testing requirement should

be continued beyond three years, if the

generator determines the wastes to be

nonhazardous for three consecutive

years. Following suspension of annual

testing requirements, the generator

would still be liable if testing by EPA or

an authorized State finds the waste to be

hazardous.

2. Using Knowledge of The Wastes

Where testing is not required, or as a

supplement to testing, we are proposing

that you could use knowledge of your

wastes (e.g., knowledge of the

constituents in your wastes based on

existing sampling and analysis data

and/or information about raw materials

used, production processes used, and

degradation products formed) to

conclude that concentrations for the

constituents of concern in your waste

would be below the listing levels

(nonhazardous waste).

D. How Would The Proposed Contingent

Management Listing for Liquid Wastes

be Implemented?

Under this proposed listing, paint

manufacturing waste liquids that meet

the K180 listing description would be

hazardous wastes unless managed

exclusively in tanks or containers prior

to discharge to a POTW or under a

NPDES permit. If your liquid paint

manufacturing wastes are going to be

stored or treated in units other than

tanks or containers, then they would be

hazardous wastes unless you have

determined (using the procedures

described in Section C) that the

constituents of concern in the waste

liquids are below the listing levels.

Therefore, you would need to determine

as soon as the paint manufacturing

waste liquids are generated whether

they will be stored or treated in units

other than tanks or containers. If your

paint manufacturing waste liquids will

be stored or treated in units other than

tanks or containers, your wastes would

be subject to the management

requirements discussed in Section B

above. If you are storing or treating paint

manufacturing waste liquids on-site in

tanks or containers prior to off-site

disposal, you would need to maintain

documentation showing that the wastes

will be stored or treated exclusively in

tanks or containers off-site prior to their

discharge to a POTW or discharge under

a NPDES permit. If the off-site disposal

facility does not store or treat your paint

manufacturing wastes exclusively in

tanks or containers and the waste

contains levels of constituents at or

above the risk-based listing levels, then

your wastes would be hazardous and

you would need to store the wastes in

accordance with the Subtitle C

requirements applicable to storage of a

hazardous waste.

E. What Records Would I Need to Keep

On-site to Support a Nonhazardous

Determination for My Wastes?

To support a nonhazardous

determination, we are proposing that

you must keep records of the total

annual quantity of paint production

waste solids and liquids from tank and

equipment cleaning operations that use

solvents, water, and/or caustic; emission

control dusts or sludges; wastewater

treatment sludges and off specification

product for the most recent three years

from the effective date of the final rule.

If you generate a total annual quantity

of paint manufacturing wastes that

exceeds 40 metric tons for paint

manufacturing waste solids or 100

metric tons for paint manufacturing

waste liquids, we are proposing that you

keep the following records on-site for

the most recent three years:

1. The documentation supporting a

determination that wastes are nonhazardous

based on knowledge that they do not contain

any of the constituents of concern.

2. If you determine that wastes are

nonhazardous based on testing, then you

must keep the following records on-site:

a. The sampling and analysis plan used for

collecting and analyzing samples

representative of your wastes, including

detailed sampling methods used to account

for spatial and temporal variability of the

wastes, and sample preparative, cleanup (if

necessary) and determinative methods.

b. The sampling and analysis data

(including QA/QC data) and knowledge (if

used to determine that one or more

constituents of concern are not present in the

wastes) that support a nonhazardous

determination for your wastes (for the most

recent three years of testing).

3. If storing or treating paint manufacturing

waste liquids on-site in tanks or containers

prior to off-site disposal, the documentation

showing that the paint manufacturing waste

liquids will be stored or treated solely in

tanks or containers off-site before discharge

by a facility to a POTW or discharge under

an NPDES permit.

We request comment on the adequacy

of the above recordkeeping

requirements to support a nonhazardous

determination.

F. What Would Happen if I Do Not Meet

The Recordkeeping Requirements for

The Wastes That I Have Determined Are

Nonhazardous?

We are proposing to require

recordkeeping under the authority of

sections 2002 and 3007 of RCRA. These

are requirements and not conditions of

the waste being nonhazardous. A

condition is a standard that you or your

waste must meet in order for your waste

to become or remain nonhazardous. If a

condition is not fulfilled, then the waste

is hazardous and subject to RCRA

Subtitle C requirements. A requirement

is an obligation whose violation would

not affect the nonhazardous status of the

waste, but would be a violation under

RCRA. Failure to comply with these

requirements could result in an

enforcement action under section 3008

of RCRA. This section of the statute

authorizes the imposition of civil

penalties in an amount up to $27,500 for

each day of noncompliance.

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10117

G. Could I Treat My Wastes to Below

Listing Concentrations and Then

Determine That My Wastes Are

Nonhazardous?

1. Paint Manufacturing Waste Solids

If your paint manufacturing waste

solids are hazardous (K179) at the point

of generation, we are proposing that you

could treat the wastes to make them

nonhazardous (i.e., remove the K179

hazardous waste code from your

wastes). However, if your wastes are

K179, they would be required to be

treated to meet the proposed LDR

treatment standards (see Section VI D.)

before placement in a land-based unit.

Following LDR treatment, you could

choose to use the initial hazardous

waste determination procedures for

K179 wastes (see Section C above) to

determine if your treated waste

residuals are nonhazardous. If your

treated waste residuals are determined

to be nonhazardous, they would no

longer be subject to the requirements of

Subtitle C. In other words, the derived

from hazardous waste code would no

longer attach to such treatment

residuals.

2. Paint Manufacturing Waste Liquids

If your paint manufacturing waste

liquids are hazardous (K180) at the

point of generation because the

concentration of the constituents of

concern are not below the listing levels

and they are not stored or treated solely

in tanks or containers prior to discharge,

then they would also be required to be

treated to meet the proposed LDR

treatment standards (see Section VI.D).

However, we are proposing that the

treatment of the K180 liquid wastes

(e.g., to meet the proposed LDR

treatment standards) would not result in

the removal of the K180 hazardous

waste code from your liquid residual

wastes. This is because the proposed

listing levels for K180 are for the waste

prior to any mixing and would

necessarily be higher than the levels of

the constituents that may exit in the

liquid paint wastes mixed with other

wastewaters in an off-site

impoundment. Therefore, we believe

that the use of listing levels for K180

would not protect against paint

manufacturing waste liquids being

placed on land.

VI. Proposed Treatment Standards

Under RCRA’s Land Disposal

Restrictions (LDRs)

A. What Are EPA’s LDRs?

The RCRA statute requires EPA to

establish treatment standards for all

wastes destined for land disposal. These

are the so called ‘‘land disposal

restrictions’’ or LDRs. For any

hazardous waste identified or listed

after November 8, 1984, EPA must

promulgate LDR prohibitions and

treatment standards within six months

of the date of identification or final

listing (RCRA section 3004(g)(4), 42

U.S.C. 6924(g)(4)). RCRA also requires

EPA to set as these treatment standards

‘‘* * * levels or methods of treatment,

if any, which substantially diminish the

toxicity of the waste or substantially

reduce the likelihood of migration of

hazardous constituents from the waste

so that short-term and long-term threats

to human health and the environment

are minimized.’’ RCRA section

3004(m)(1), 42 U.S.C. 6924(m)(1). Once

a hazardous waste is prohibited, the

statute provides only two options for

legal land disposal: meet the treatment

standard for the waste prior to land

disposal, or dispose of the waste in a

land disposal unit that satisfies the

statutory no migration test. A no

migration unit is one from which there

will be no migration of hazardous

constituents for as long as the waste

remains hazardous. RCRA sections 3004

(d), (e), (f), and (g)(5).

B. How Does EPA Develop LDR

Treatment Standards?

To establish LDR treatment standards,

EPA first identifies the best

demonstrated available technology

(BDAT) for the hazardous constituents

present in the hazardous waste, and

then determines what constituent

concentrations can be achieved by the

technology or technologies identified as

BDAT.

EPA typically has established

treatment standards based on

performance data from the treatment of

the waste at issue, if such data are

available, and also from the treatment of

wastes with similar chemical and

physical characteristics or similar

concentrations of hazardous

constituents. Treatment standards

typically cover both wastewater and

nonwastewater waste forms on a

constituent-specific basis. The

constituents selected for regulation

under the LDR program are not

necessarily limited to those present in a

proposed listing, but also may include

those constituents or parameters that

will ensure that treatment technologies

are operated properly. For listed waste

EPA identifies these as ‘‘regulated

constituents’’ and they appear

individually in the Table at 40 CFR

268.40, along with their respective

treatment standards.

EPA may develop and promulgate

either technology-specific treatment

standards or numerical treatment

standards. Should EPA elect to use

technology-specific standards (i.e.,

mandate use of a particular type of

treatment technology), all wastes that

meet the listing designations would

have to be treated by the technology or

technologies specified before disposal.

These technologies are also identified in

the Table at § 268.40 and are further

described in § 268.42. Should EPA elect

to use numerical treatment standards,

the Agency allows the use of any

technology (other than impermissible

dilution) to comply with the treatment

standards.

With the advent of the so-called

Universal Treatment Standards (UTS)

(the same numerical standards for

common hazardous constituents in all

prohibited hazardous wastes), EPA has

somewhat refined this approach. Thus

some of the evaluation of treatability

goes to the issue of how well the UTS

express potential treatability of a

prohibited hazardous waste. Given that

the UTS typically reflect performance of

the best treatment technologies and

minimizing threats, and the enormous

savings in administrative expense to

both the regulated communities and to

EPA, EPA seeks to apply the UTS

wherever technically justified. See

generally 59 FR 47988–991 (September

19, 1994).

After developing the LDR treatment

standards, we must also determine if

adequate treatment capacity is available

to treat the expected volumes of wastes.

If so, the LDR treatment standards

become effective essentially at the same

time a listing does. If not, EPA may

grant up to a two-year national capacity

variance (NCV) during which time the

LDR treatment standards are not

effective.

For a more detailed overview of the

Agency’s approach for developing

treatment standards for hazardous

wastes, see the final rule on solvents

and dioxins (51 FR 40572, November 7,

1986) and section III.A.1 of the

preamble to the final rule that set land

disposal restrictions for the ‘‘Third

Third’’ wastes (55 FR 22535, June 1,

1990). EPA also has explained its BDAT

procedures in ‘‘Best Demonstrated

Available Technology (BDAT)

Background Document for Quality

Assurance/Quality Control Procedures

and Methodology (EPA/OSW, October

23, 1991)’’. This document is available

in the docket supporting this

rulemaking.

C. What Treatment Standards Are

Proposed?

For the hazardous constituents found

in wastes from the manufacture of

10118 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

paints, hazardous waste numbers K179

and K180, we are proposing to transfer

existing numerical or universal

treatment standards to the hazardous

constituents identified in the wastes,

with the exception of formaldehyde and

styrene. We believe that it is technically

feasible to apply these existing

numerical standards to the hazardous

constituents of K179 and K180, because

the waste compositions are similar to

other wastes for which applicable

treatment technologies have been

demonstrated. Due to the uncertainties

in our assessment of the management of

paint manufacturing waste liquids in

surface impoundments, we are also

considering an alternative proposal not

to list paint manufacturing waste

liquids. We describe this alternative

elsewhere in this notice (see Section

IV.D). If we do not list wastes under

K180, then there would be no need for

any standards for formaldehyde or

styrene. The following discussion

describes the approach for treatment

standards assuming that paint

manufacturing waste liquids are listed

under K180.

The hazardous constituents

formaldehyde and styrene do not have

existing numerical standards. For

formaldehyde, we are proposing to

require treatment by designated

methods. When formaldehyde is present

in K180 at levels triggering the listing,

formaldehyde thus would be treated by

the required technologies. (The other

hazardous constituents must, of course,

be treated to meet the applicable

numerical standards.) Wastes that do

not trigger the listing based on

formaldehyde would not be subject to

the formaldehyde technology

requirement, but would be subject to all

other numerical standards. The

technology standards proposed for

formaldehyde-listed K180 wastewaters

are wet air oxidation (WETOX) or

chemical or electrolytic oxidation

(CHOXD) followed by carbon adsorption

(CARBN); or combustion (CMBST). For

nonwastewaters forms of K180, the

technology standard proposed is

combustion. These are the same

treatment standards currently applicable

to discarded product, off specification,

container residues, and spill residues of

formaldehyde (EPA hazardous waste

U122).

For styrene, we are proposing

numerical standards developed for this

rulemaking. We are proposing a

wastewater standard of 0.028 mg/L

based on activated sludge treatment and

a nonwastewater standard of 28.0 mg/kg

based on thermal destruction of sludge.

Alternatively, we propose the transfer of

the ethylbenzene treatment standards of

0.057 mg/L for wastewaters, and 10 mg/

kg for nonwastewaters, because of its

structural similarity and similar

physical properties with styrene similar

treatment technologies have been

demonstrated. Ethylbenzene and styrene

have the same number of carbon atoms,

and differ only in that styrene has one

additional double bond and hence two

fewer hydrogen atoms in its structure.

See supporting background documents

for the additional discussion on the

derivation of the UTS for this new

constituent.

Wastes identified as K179 or K180

may already be subject to hazardous

waste regulation, because they exhibit a

characteristic or are listed F001–F005

wastes. If promulgated, the treatment

standards for K179 and K180 will apply

in addition to any treatment

requirements the wastes are currently

subject to. Section 268.9(b) of current

rules states that if a treatment standard

for a listed waste which also exhibits a

characteristic addresses the hazardous

constituent which causes the waste to

exhibit the characteristic, then, the

waste is only subject to the treatment

standard for the listed waste. Applied to

these paint manufacturing wastes,

therefore, the most likely result is that

these wastes would be subject only to

the treatment standards for K179 and

K180 assuming that presence of organic

hazardous constituents addressed in the

treatment standard for the listed waste

causes these wastes to exhibit a

characteristic.

The treatment standards proposed are

based on technology performance and

not upon the listing levels of concern

derived from the Paint Risk Assessment.

In the Hazardous Waste Identification

Rule proposed November 19, 1999, we

outlined ways in which the HWIR risk

assessment could be used to develop

risk-based LDR levels (see 64 FR 63444,

November 19, 1999), because the HWIR

risk assessment evaluated the potential

for constituent migration through the

most significant environmental fate and

transport pathways, looked at the total

impact of those pathways, and

considered a great number of ecological

benchmarks. In the Paint Risk

Assessment, we also have a substantial

multipathway risk assessment that

could potentially lead to treatment

standards which could be either more

lenient or stricter than current

standards.

However, the listing levels proposed

for K180 are for the waste prior to any

mixing, and would necessarily be higher

than the levels of the constituents that

may exist in the off-site impoundment.

Therefore, we believe the listing levels

for K180 may not be appropriate for use

in estimating minimized threat levels,

because they do not correspond to riskbased levels for the diluted waste in the

impoundment. The levels indicated

would not be applicable as ‘‘universal’’

risk-based treatment standards (as we

hope HWIR could eventually be).

Our preference is to develop a single

set of treatment levels that would be

applicable to all hazardous wastes.

Waste-by-waste modeling would not

only be highly resource intensive, but

could lead to the potentially false

conclusion that higher levels are

justified only to realize that if we look

at a range of wastes together we might

conclude that more stringent treatment

standards are needed to minimize threat

to human health and the environment.

Therefore, we believe the proposed

listing levels are not minimized threat

levels across all wastes and have chosen

to propose treatment standards based on

the performance of the best determined

available technology (BDAT). We

believe that there is still uncertainty as

to what quantified levels minimize

threats to human health and the

environment, and therefore, we are

proposing standards based on the

performance of the BDAT. See HWTC

vs. EPA.886 f. 2d 355, 361–63 (D.C. Cir.

1989) (accepting this approach).

The proposed treatment standards are

set out in Table VI–1 below. Where EPA

is proposing numerical concentration

limits the use of any technology capable

of achieving the proposed treatment

standards would be allowed, except

those treatment or reclamation practices

constituting land disposal or

impermissible dilution (see 40 CFR

268.3). As stated above, when

formaldehyde is present in K180 at

levels triggering the listing, we are

proposing that formaldehyde must be

treated by the required technologies.

The other hazardous constituents

would, of course, be treated to meet the

applicable numerical standards.

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10119

45As noted previously, we are considering an

alternative proposal not to list paint manufacturing

waste liquids. If we do not like K180, then there

would be no need to add styrene to the F039 or UTS

standards.

TABLE VI–1.—TREATMENT STANDARDS FOR HAZARDOUS WASTE K179 AND K180

Regulated hazardous constituent

K179 solids K180 liquids

Wastewaters Nonwastewaters

Common name CAS1 No.

Concentration in mg/

L,2 or technology

code 3

Concentration in mg/

kg 4 unless noted as

‘‘mg/L TCLP’’, or technology code 3

Acrylamide ............................................................... 79–06–1 X X 19 .............................. 23

Acrylonitrile ............................................................... 107–13–1 X X 0.24 ........................... 84

n-Butyl alcohol ......................................................... 71–36–3 .................... X 5.6 ............................. 2.6

Ethyl benzene .......................................................... 100–41–4 .................... X 0.057 ......................... 10

Formaldehyde 5 ........................................................ 50–00–0 .................... X (WETOX or CHOXD)

fb CARBN; or

CMBST.

CMBST

Methylene chloride ................................................... 75–09–2 .................... X 0.089 ......................... 30

Methyl isobutyl ketone ............................................. 108–10–1 X X 0.14 ........................... 33

Methyl methacrylate ................................................. 80–62–6 X X 0.14 ........................... 160

Styrene ..................................................................... 100–42–5 .................... X 0.028 ......................... 28

Toluene .................................................................... 108–88–3 .................... X 0.080 ......................... 10

Xylenes—mixed isomers (sum of o-, m-, and p-xylene concentrations).1330–20–7 .................... X 0.32 ........................... 30

Antimony .................................................................. 7440–36–0 X X 1.9 ............................. 1.15 mg/L TCLP

1 CAS means Chemical Abstract Services. When the waste code and/or regulated constituents are described as a combination of a chemical

with its salts and/or esters, the CAS number is given for the parent compound only. 2 Concentration standards for wastewaters are expressed in mg/L and are based on analysis of composite samples.

3All treatment standards expressed as a Technology Code or combination of Technology Codes are explained in detail in 40 CFR 268.42

Table 1–Technology Codes and Descriptions of Technology-Based Standards. 4Except for Metals (EP or TCLP) and Cyanides (Total and Amenable) the nonwastewater treatment standards expressed as a concentration

were established, in part, based upon incineration in units operated in accordance with the technical requirements of 40 CFR Part 264, Subpart

O, or Part 265, Subpart O, or based upon combustion in fuel substitution units operating in accordance with applicable technical requirements. A

facility may comply with these treatment standards according to provisions in 40 CFR 268.40(d). All concentration standards for nonwastewaters

are based on analysis of grab samples. 5Wastes that do not exceed the § 261.32 listing criteria for this constituent are not subject to the treatment technology requirements, but are

subject to all other numerical standards.

D. Other LDR-Related Provisions

1. F039 Multisource Leachate and

Universal Treatment Standards

F039 applies to multiple listed

hazardous waste landfill leachates in

lieu of the original waste codes, and

F039 wastes are subject to numerical

treatment standards applicable to all

listed wastes. To maintain the

regulatory implementation benefits of

having one waste code for multisource

leachate, the treatment standards for

F039 must be updated to include the

constituents of newly listed wastes.

Otherwise, multiple waste codes would

again be applicable. Therefore, we

propose to add to F039 the additional

constituents acrylamide and styrene. We

also propose to add the numerical

standards for styrene to the Universal

Treatment Standards of 40 CFR

268.48 45 Characteristic wastes are

already subject to treatment standards

for acrylamide. As a result,

characteristic wastes subject to

treatment requirements for underlying

hazardous constituents will also have to

comply with these treatment standards.

We are proposing these changes,

because acrylamide and styrene are

toxic constituents. When paint

manufacturing (or production) wastes

are managed with other wastes at

commercial treatment facilities, the

combined waste residues that result for

disposal would need to meet all part

268 requirements, including

requirements for C disposal, if the paint

listing codes were retained or mixed

with other listed wastes. The new listing

codes may also be retained if treatment

meets only the LDR standards and not

the listing levels. Thus, leachates that

could be subject to multiple codes could

be formed. By adding these constituents

to F039, the regulatory benefits of

having one waste code for multisource

leachate is maintained.

Based on the treatment studies

compiled for acrylamide and styrene,

we believe the proposed treatment

standards for these constituents can

readily be achieved in the F039 leachate

wastes, and in characteristic wastes.

Nevertheless, we request comments on

this assumption.

E. Is There Treatment and Management

Capacity Available for These Proposed

Newly Identified Wastes?

1. What Is a Capacity Determination?

EPA must determine whether

adequate alternative treatment capacity

exists nationally to manage the wastes

subject to LDR treatment standards.

RCRA Section 3004(h)(2). Thus, LDRs to

be made effective immediately—in this

case when the new listings are effective

(typically 6 months after the new

listings are published in the Federal

Register)—unless EPA grants a national

capacity variance from the otherwiseapplicable date and establishes a

different date (not to exceed two years

beyond the statutory deadline) based on

‘‘the earliest date on which adequate

alternative treatment, recovery, or

disposal capacity which protects human

health and the environment will be

available’’ (RCRA Section 3004(h)(2), 42

U.S.C. 6924(h)(2)).

Our capacity analysis methodology

focuses on the amount of waste

currently disposed on the land, which

will require alternative or additional

treatment as a result of the LDRs. The

quantity of wastes that is not disposed

on the land, such as treatment in tanks,

is not included in the quantities

requiring additional treatment as a

result of the LDRs. Also, land-disposed

10120 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

wastes that do not require alternative or

additional treatment (i.e., those that

currently are treated to meet the LDR

treatment standards) are excluded from

the required capacity estimates. Landdisposed wastes requiring alternative or

additional treatment or recovery

capacity that is available on-site or

within the same company also are

excluded from EPA’s estimates of

needed commercial capacity. EPA then

compares the resulting estimates of

required commercial capacity to

estimates of available commercial

capacity. If adequate commercial

capacity exists, the waste is restricted

from further land disposal. If protective

alternative capacity does not exist, EPA

has the authority to grant a national

capacity variance.

In making the estimates described

above, the volume of waste requiring

treatment depends on the current waste

management practices employed by the

waste generators before this proposed

regulation is promulgated and becomes

effective. Data on waste management

practices for these wastes were collected

during the development of this

proposed rule. However, we realize that

as the regulatory process proceeds,

generators of these wastes may decide to

minimize or recycle their wastes or

otherwise alter their management

practices. Thus, we will monitor

changes and update data on current

management practices as these changes

will affect the volume of wastes

ultimately requiring commercial

treatment or recovery capacity.

The commercial hazardous waste

treatment industry may change rapidly.

For example, national commercial

treatment capacity changes as new

facilities come on line or old facilities

go off line, and as new units and new

technologies are added at existing

facilities. The available capacity at

commercial facilities also changes as

facilities change their commercial status

(e.g., changing from a fully commercial

to a limited commercial or ‘‘captive’’—

company owned—facility). Thus, we

also continue to update and monitor

changes in available commercial

treatment capacity.

For wastes required to meet today’s

proposed treatment standards, we

request data on the annual generation

volumes and characteristics of wastes

affected by this proposed rule, including

proposed hazardous wastes K179 and

K180 in wastewater and nonwastewater

forms. We also request data on soil or

debris contaminated with these wastes,

residuals generated from the treatment

or recycling of these wastes, and the

current and planned management

practices for the wastes, waste mixtures,

and treatment residuals.

For available capacity to meet the

LDR requirements, we request data on

the current treatment or recovery

capacity capable of treating these

wastes, facility and unit permit status

related to treatment of the proposed

wastes, and any plans that facilities may

expand or reduce existing capacity or

construct new capacity. In addition, we

request information on the time and

necessary procedures required for

permit modification for generators or

commercial treatment or disposal

facilities to manage the wastes, required

changes for operating practices due to

the proposed listings or proposed

additional constituents to be regulated

in the wastes, and any waste

minimization activities associated with

the wastes. Of particular interest to us

are chemical and physical constraints of

treatment technologies for these wastes

and any problems for disposing of these

wastes. Also of interest are any

analytical difficulties associated with

identifying and monitoring the

regulated constituents in these wastes.

2. What Are The Capacity Analysis

Results?

This preamble only provides a

summary of the capacity analysis

performed to support this proposed

regulation. For additional and more

detailed information, please refer to the

‘‘Background Document for Capacity

Analysis for Land Disposal Restrictions:

Newly Identified Paint Production

Wastes (Proposed Rule), January 2001’’

(i.e., the Capacity Background

Document).

For this capacity analysis, we

examined data on waste characteristics

(such as whether the waste is a solid,

solvent, or an aqueous waste) and

management practices gathered for the

paint manufacturing hazardous waste

listing determination. We also examined

data on available treatment or recovery

capacity for these wastes. The sources

for these data are the 2000 RCRA section

3007 survey and site visits (see the

docket for this proposed regulation for

more information on these survey

instruments and facility activities), the

available treatment capacity data

submission that was collected in the

1990’s, and the 1997 Biennial Report

(BR).

We derived our estimated quantities

requiring alternative or additional

treatment to meet the LDR treatment

standards from the estimated population

for paint manufacturers (i.e.,

approximately one thousand paint

manufacturing facilities in the United

States, as discussed earlier for RCRA

Section 3007 Survey (Section II.G )).

K179 is paint manufacturing waste

solid, so it is generated as a

nonwastewater, as defined in 40 CFR

268.2(d) and (f) (i.e., nonwastewaters are

wastes that do not meet the criteria for

wastewaters which contain less than 1%

by weight total organic carbon (TOC)

and less than 1% by weight total

suspended solids (TSS)). K180 is a paint

manufacturing waste liquid and could

be a nonwastewater or wastewater form

based on the above definition.

Generally, facilities may combine a

variety of wastes (for example, sludges

from tank cleaning operations and

wastewater treatment) and send their

wastes off to one waste management

unit. Some waste types are managed

separately (for example, wastes with

some value for fuel blending). We used

weighted and extrapolated universe

waste quantities from approximately

one thousand paint manufacturing

facilities for our capacity analysis. After

examining waste generation quantities

and their management practices, we

estimated that approximately 17,000

tons per year of K179 and K180 wastes

may require alternative or additional

treatment to meet the LDR standards.

This amount of waste covers the

quantities which are currently land

disposed, managed in a Subtitle D

combustion unit, or uncertain on their

management practices.

The quantities requiring alternative or

additional treatment could be smaller

because much of the proposed and

newly identified paint manufacturing

(or production) waste is mixed with

existing listed and/or characteristic

wastes which already had to meet the

LDR requirements for at least some of

the proposed constituents for K179 and

K180 wastes. Also, most of the surveyed

facilities that reported generation of

waste residuals of concern under this

listing determination reported that they

recycled or reused the residuals to some

extent. Furthermore, waste generated

from the production batches are also

generated in batches rather than in a

continuous stream. We recognize the

volume and type of paint produced,

degree of automation, amount of non

land-based recycling, age of facility, and

the speed at which facilities may change

product formulations can affect types

and amount of waste generated.

Therefore, the actual annual quantity of

waste requiring commercial treatment

may fluctuate due to these variations.

However, we find that there is no

shortfall for available commercial

treatment capacity for these wastes

proposed in today’s rule. For a more

detailed analysis regarding the amount

of paint manufacturing (or production)

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10121

wastes requiring treatment to meet the

LDR standards, see the Capacity

Background Document in the public

docket for this proposed rule.

As discussed in the section for the

LDR treatment standards, we are

proposing that numerical or technologyspecific treatment standards be applied

to K179 and K180 wastes, depending on

the constituent in the wastes. For

nonwastewater forms of these wastes,

we anticipate that commercially

available incineration, followed by

stabilization if necessary (for antimony),

can be used to meet these numerical

treatment standards. For one organic

constituent (formaldehyde) in

wastewater and nonwastewater forms of

K180, we are proposing to require

treatment by specified methods. For

formaldehyde in K180 wastewater we

are proposing the following

technologies as methods of treatment,

wet air oxidation (WETOX) or chemical

or electrolytic oxidation (CHOXD)

followed by carbon adsorption

(CARBN); or combustion (CMBST). For

this constituent in the nonwastewater

form of K180, the required technology

standard proposed is combustion. We

assume that facilities would achieve

waste treatment standards using

combustion, stabilization, or both for

K179 and K180 wastes. The quantity of

commercially available combustion

capacity for sludge, solid, and liquids is

well over one million tons per year

based on 1997 Biennial Report data. The

quantity of commercially available

stabilization capacity is at least seven

million tons per year based on 1995

Biennial Report data. Also, based on the

data submittals in the early 1990’s and

1997 BR data, we estimated that at least

34 million tons per year of commercial

wastewater treatment capacity are

available. Please note that facilities

could use any available technologies

(except impermissible dilution) to

achieve the LDR numerical standards

for these wastes.

Based on the results of the RCRA

section 3007 survey and the site visits,

we did not identify any paint

manufacturing facilities that manage

these proposed wastes in on-site surface

impoundments. From the available

information, we found that at least one

wastewater treatment plant accepted

proposed paint manufacturing waste

liquids (K180) from the paint

production industry, and the facility

managed these wastes in a lined surface

impoundment. Assuming such an

impoundment satisfies requirements of

section 3005(j)(11) (in essence, meets

minimum technological requirements

and is dredged annually), such wastes

would not require treatment. If any

wastes are managed in an impoundment

not satisfying requirements of

3005(j)(11) (e.g., an unlined surface

impoundment) of a wastewater

treatment system, the wastes would be

subject to land disposal prohibitions.

However, we anticipate that very few

facilities, if any, would manage the

newly identified paint manufacturing

wastes in such impoundments.

Based on the foregoing, we expect that

sufficient capacity exists to treat the

proposed K179 and K180 wastes that

would require alternative or additional

treatment. Therefore, we are proposing

to not grant a national capacity variance

for these wastes.

Further, soil and debris contaminated

with these newly identified wastes may

be subject to the LDRs (see LDR

Treatment Standards for Soil in LDR

Phase IV Final Rule, 63 FR 28602, May

26, 1998; 40 CFR 268.45 Treatment

Standards for Hazardous Debris), but we

believe that the contaminated soil and

debris, if any, would not require

substantial commercial treatment

capacity. There are no data showing

such contaminated soil and debris are

currently generated. We expect that the

majority of contaminated soil and

debris, if generated, will be managed onsite. Therefore, we are not proposing to

grant a national capacity variance for

hazardous soil and debris contaminated

with these wastes covered under this

proposal.

Based on the RCRA section 3007

Survey conducted in early 2000 (which

collected 1998 data), there are no data

showing that the newly proposed wastes

are managed by underground injection

wells. Also, based on the 2000 RCRA

section 3007 Survey, there are no data

showing mixed radioactive wastes

associated with the proposed listings.

We are proposing to not grant a national

capacity variance for underground

injected wastes, mixed radioactive

wastes (i.e., radioactive wastes mixed

with K179 and K180), or soil and debris

contaminated with these mixed

radioactive wastes, if such wastes are

generated.

Therefore, we propose that LDR

treatment standards thus become

effective when the listing

determinations become effective for the

wastes covered under today’s rule. This

conforms to RCRA section 3004(h)(1),

which indicates that land disposal

prohibitions must take effect

immediately when there is sufficient

treatment or disposal capacity available

for the wastes. However, we may need

to revise capacity analyses or capacity

variance decisions if final listing

determinations are changed or if we

receive data and information to warrant

any revision.

We request comments on the

estimated quantities requiring

alternative treatment and information

on characteristics of the affected wastes,

management practices for these wastes,

and available treatment, recovery or

disposal capacity for the wastes. We

also request comments on whether any

facility uses surface impoundment or

underground injection to manage these

wastes. In addition, we solicit

comments on our decision not to grant

a national capacity variance for any of

the affected wastes. We will consider all

available data and information provided

during the public comment period and

revise our capacity analysis accordingly

in making the final capacity

determinations. Please note that the

ultimate volumes of wastes estimated to

require alternative or additional

commercial treatment may change if the

final listing determinations change.

Should this occur, we will revise the

capacity analysis accordingly.

3. What Is the Available Treatment

Capacity for Other Wastes Subject to

Revised UTS and F039 Standards?

With respect to the revisions to the

F039 and UTS lists, as discussed earlier

in the section on K179 and K180

treatment standards, we are proposing

to add acrylamide and styrene to the list

of regulated constituents in F039 (40

CFR section 268.40). We are also

proposing to add styrene to the UTS

table (40 CFR section 268.48).

Acrylamide is currently listed in the

Appendix VIII of part 261. EPA is

proposing to add styrene in the

Appendix VIII as discussed in the

earlier section (Section II). We have

estimated what portion of the F039 or

characteristic wastes (which require

treatment of underlying hazardous

constituents to UTS levels) may be

required to meet these new treatment

standards. We request comments on the

estimates, the appropriate means of

treatment (if necessary), and the

sufficiency of available treatment

capacity for the affected wastes by the

addition of these constituents to the

F039 and UTS lists.

When changing the treatment

requirements for wastes already subject

to LDR (including F039 under 40 CFR

261.31 and characteristic wastes under

40 CFR 261.24) for which the potential

capacity variance periods have expired,

EPA no longer has authority to use

RCRA section 3004(h)(2) to grant a

capacity variance to these wastes.

However, EPA is guided by the overall

objective of section 3004(h), namely that

treatment standards which best

10122 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

accomplish the goal of RCRA section

3004(m) (to minimize threats posed by

land disposal) should take effect as soon

as possible, consistent with availability

of treatment capacity.

We expect that only a limited quantity

of hazardous waste leachate, if any, may

be generated from the disposal of newlyproposed K179 and K180 wastes and

added to the generation of leachates

from other multiple restricted hazardous

wastes already subject to LDR.

For the amount of characteristic

wastes or leachates generated from those

previously regulated hazardous wastes

that would be subject only to the new

treatment standards for these

constituents, we evaluated the universe

of wastes that might be impacted by

revisions to the lists of regulated

constituents for F039 and UTS based on

limited information. Based on 1997

Biennial Report data and some

assumptions of waste compositions and

their potential for land disposal, we

were able to estimate the potential need

for additional treatment. For example,

we estimated an upper bound of 7,000

tons per year of nonwastewaters mixed

with other waste codes, the F039

leachate from which would be

potentially impacted by the revision to

the F039 treatment standards. In a

similar fashion, we estimated that

approximately 250,000 tons per year of

characteristic nonwastewaters

potentially might be affected by the

proposed changes.

These upper bound estimates are most

likely significantly overstated since only

a portion of each estimated waste

volume may contain the proposed

additional constituents at

concentrations above the proposed level

specified in the UTS table and the F039

list. The estimates assume that these

constituents are present at levels above

the proposed treatment standards in all

of these F039 and characteristically

hazardous wastes and require

alternative treatment, when it is likely

that this may be true in only a small

subset of the cases (as described in the

Capacity Background Document).

Furthermore, EPA does not anticipate

that waste volumes subject to treatment

for F039 or characteristic wastes would

significantly increase because waste

generators already are required to

comply with the treatment requirements

for other already regulated organic or

metal constituents that may be present

in the wastes. The volumes of wastes for

which additional treatment is needed

solely due to the addition of these

constituents to the F039 and UTS lists

are therefore expected to be small. See

the Capacity Background Document for

detailed analysis.

Even if we have underestimated the

projected volume of wastes requiring

treatment, we believe that there still

would be no shortage of treatment

capacity. Based on data submittals in

the early 1990’s and 1997 BRS data,

EPA has estimated that at least 34

million tons per year of commercial

wastewater treatment capacity are

available, and approximately 1.6 million

tons per year of liquid, sludge, and solid

commercial combustion capacity are

available. Also, as discussed earlier in

this section, there are seven million tons

of available stabilization capacity. These

are well above the quantities of F039 or

characteristic wastes potentially

requiring treatment for the proposed

additional constituents even under the

conservative screening assumptions

described above. Therefore, we are

proposing a decision not to delay the

effective date for adding these

constituents to the lists of constituents

for F039 and UTS.

We request comments on our

proposed decision to not delay the

effective date for adding these

constituents to the lists of constituents

for F039 and UTS. We request data on

the annual generation volumes and

characteristics of wastes affected by the

proposed changes to UTS and F039 in

wastewater and nonwastewater forms (if

any), and the current and planned

management practices for the wastes,

waste mixtures, and treatment residuals.

We also request data on the current

treatment or recovery capacity available

for treating the affected wastes.

VII. State Authority and Compliance

A. How Are States Authorized Under

RCRA?

Under section 3006 of RCRA, EPA

may authorize qualified States to

administer and enforce the RCRA

hazardous waste program within the

State. (See 40 CFR Part 271 for the

standards and requirements for

authorization.) Following authorization,

EPA retains enforcement authority

under sections 3007, 3008, 3013, and

7003 of RCRA, although authorized

States have primary enforcement

responsibility.

Before the Hazardous and Solid Waste

Amendments of 1984 (HSWA) amended

RCRA, a State with final authorization

administered its hazardous waste

program entirely in lieu of the Federal

program in that State. The Federal

requirements no longer applied in the

authorized State, and EPA could not

issue permits for any facilities located in

the State with permitting authorization.

When new, more stringent Federal

requirements were promulgated or

enacted, the State was obligated to enact

equivalent authority within specified

time-frames. New Federal requirements

did not take effect in an authorized State

until the State adopted the requirements

as State law.

By contrast, under section 3006(g) of

RCRA, 42 U.S.C. 6926(g), new

requirements and prohibitions imposed

by the HSWA (including the hazardous

waste listings finalized in this notice)

take effect in authorized States at the

same time that they take effect in nonauthorized States. While States must

still adopt HSWA-related provisions as

State law to retain final authorization,

EPA is directed to implement those

requirements and prohibitions in

authorized States, including the

issuance of permits, until the State is

granted authorization to do so.

Authorized States are required to

modify their programs only when EPA

promulgates Federal standards that are

more stringent or broader in scope than

existing Federal standards. Section 3009

of RCRA allows States to impose

standards more stringent than those in

the Federal program. See also 40 CFR

271.1(I). For those Federal program

changes, both HSWA and non-HSWA,

that are less stringent or reduce the

scope of the Federal program, States are

not required to modify their programs.

Less stringent regulations, both HSWA

and non-HSWA, do not go into effect in

authorized States until those States

adopt them and are authorized to

implement them.

B. How Would This Rule Affect State

Authorization?

We are proposing today’s rule

pursuant to HSWA authority. The

listing of the new K-wastes is

promulgated pursuant to RCRA section

3001(e)(2), a HSWA provision.

Therefore, we are adding this rule to

Table 1 in 40 CFR 271.1(j), which

identifies the Federal program

requirements that are promulgated

pursuant to HSWA and take effect in all

States, regardless of their authorization

status. The land disposal restrictions for

these wastes are promulgated pursuant

to RCRA section 3004(g) and (m), also

HSWA provisions. Table 2 in 40 CFR

271.1(j) is modified to indicate that

these requirements are selfimplementing. States may apply for

either interim or final authorization for

the HSWA provisions in 40 CFR

271.1(j), as discussed below. Until the

States receive authorization for these

more stringent HSWA provisions, EPA

would implement them.

A State submitting a program

modification for the portions of this

proposed rule promulgated pursuant to

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10123

HSWA authority could apply to receive

either interim authorization under

RCRA section 3006(g) or final

authorization under 3006(b), if the State

requirements are, respectively,

substantially equivalent or equivalent to

EPA’s requirements. States can only

receive final authorization for program

modifications implementing non-HSWA

requirements. The procedures and

schedule for final authorization of State

program modifications are described in

40 CFR 271.21. It should be noted that

all HSWA interim authorizations are

currently scheduled to expire on

January 1, 2003 (see 57 FR 60129,

February 18, 1992).

Section 271.21(e)(2) of EPA’s State

authorization regulations (40 CFR part

271) requires that States with final

authorization modify their programs to

reflect Federal program changes and

submit the modifications to EPA for

approval. The deadline by which the

States would need to modify their

programs to adopt this proposed

regulation is determined by the date of

promulgation of a final rule in

accordance with section 271.21(e)(2).

Table 1 at 40 CFR 271.1 is amended

accordingly. Once EPA approves the

modification, the State requirements

would become RCRA Subtitle C

requirements.

States with authorized RCRA

programs already may have regulations

similar to those in this proposed rule.

These State regulations have not been

assessed against the Federal regulations

being finalized to determine whether

they meet the tests for authorization.

Thus, a State would not be authorized

to implement these regulations as RCRA

requirements until State program

modifications are submitted to EPA and

approved, pursuant to 40 CFR 271.21.

Of course, States with existing

regulations that are more stringent than

or broader in scope than current Federal

regulations may continue to administer

and enforce their regulations as a matter

of State law. In implementing the

HSWA requirements, EPA will work

with the States under agreements to

avoid duplication of effort.

C. Who Would Need to Notify EPA That

They Have a Hazardous Waste?

Under RCRA Section 3010, the

Administrator may require all persons

who handle hazardous wastes to notify

EPA of their hazardous waste

management activities within 90 days

after the wastes are identified or listed

as hazardous. This requirement may be

applied even to those generators,

transporters, and treatment, storage, and

disposal facilities (TSDFs) that have

previously notified EPA with respect to

the management of other hazardous

wastes. The Agency is proposing to

waive this notification requirement for

persons who handle wastes that are

covered by today’s listings and have

already (1) notified EPA that they

manage other hazardous wastes, and (2)

received an EPA identification number.

However, any person who generates,

transports, treats, stores, or disposes of

these wastes and has not previously

received an EPA identification number

would need to obtain an identification

number pursuant to 40 CFR 262.12 to

generate, transport, treat, store, or

dispose of these hazardous wastes 90

days after the effective date.

D. What Would Generators and

Transporters Have to Do?

Once a final rule is promulgated,

persons that generate newly identified

hazardous wastes may be required to

obtain an EPA identification number if

they do not already have one (as

discussed above). In order to be able to

generate or transport these wastes after

the effective date of this rule, generators

of the wastes listed today would be

subject to the generator requirements set

forth in 40 CFR part 262. These

requirements include standards for

hazardous waste determination (40 CFR

262.11), compliance with the manifest

(40 CFR 262.20 to 262.23), pretransport

procedures (40 CFR 262.30 to 262.34),

generator accumulation (40 CFR

262.34), record keeping and reporting

(40 CFR 262.40 to 262.44), and import/

export procedures (40 CFR 262.50 to

262.60). The generator accumulation

provisions of 40 CFR 262.34 allow

generators to accumulate hazardous

wastes without obtaining interim status

or a permit only in units that are

container storage units or tank systems.

These existing regulations also place a

limit on the maximum amount of time

that wastes can be accumulated in these

units. If, however, the wastes covered in

today’s proposed rule are managed in

units that are not tank systems or

containers, then these units would be

subject to the permitting requirements

of 40 CFR parts 264 and 265, and the

generator is required to obtain interim

status and seek a permit (or modify

interim status or a permit, as

appropriate). Also, current regulations

require that persons who transport

newly identified hazardous wastes to

obtain an EPA identification number as

described above; such transporters will

be subject to the transporter

requirements set forth in 40 CFR part

263.

E. Which Facilities Would Be Subject to

Permitting?

1. Facilities Newly Subject to RCRA

Permit Requirements

Facilities that treat, store, or dispose

of wastes that are subject to RCRA

regulation for the first time by this

proposed rule (that is, facilities that

have not previously received a permit

pursuant to Section 3005 of RCRA and

are not currently operating pursuant to

interim status), could be eligible for

interim status (see section

3005(e)(1)(A)(ii) of RCRA). To obtain

interim status based on treatment,

storage, or disposal of such newly

identified wastes, eligible facilities

would be required to comply with 40

CFR 270.70(a) and 270.10(e) by

providing notice under section 3010 and

submitting a Part A permit application

no later than 6 months after date of

publication of the final rule. Such

facilities would be subject to regulation

under 40 CFR part 265 until a permit is

issued.

In addition, under Section 3005(e)(3)

and 40 CFR 270.73(d), not later than 6

months after date of publication of the

final rule, land disposal facilities newly

qualifying for interim status under

section 3005(e)(1)(A)(ii) would also

need to submit a Part B permit

application and certify that the facility

is in compliance with all applicable

groundwater monitoring and financial

responsibility requirements. If the

facility fails to submit these

certifications and a permit application,

then interim status would terminate on

that date.

2. Existing Interim Status Facilities

Pursuant to 40 CFR 270.72(a)(1), all

existing hazardous waste management

facilities (as defined in 40 CFR 270.2)

that treat, store, or dispose of the newly

identified hazardous wastes and are

currently operating pursuant to interim

status under section 3005(e) of RCRA,

would need to file an amended Part A

permit application with EPA no later

than six months after date of publication

of a final rule. By doing this, the facility

could continue managing the newly

listed wastes. If the facility fails to file

an amended Part A application by that

date, the facility would not receive

interim status for management of the

newly listed hazardous wastes and may

not manage those wastes until the

facility receives either a permit or a

change in interim status allowing such

activity (40 CFR 270.10(g)).

3. Permitted Facilities

Facilities that already have RCRA

permits would need to request permit

10124 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

modifications if they want to continue

managing newly listed wastes (see 40

CFR 270.42(g)). This provision states

that a permittee may continue managing

the newly listed wastes by following

certain requirements, including

submitting a Class 1 permit

modification request by the date on

which the waste or unit becomes subject

to the new regulatory requirements (i.e.,

the effective date of a final rule),

complying with the applicable

standards of 40 CFR parts 265 and 266

and submitting a Class 2 or 3 permit

modification request within 180 days of

the effective date.

Generally, a Class 2 modification is

appropriate if the newly listed wastes

will be managed in existing permitted

units or in newly regulated tank or

container units and will not require

additional or different management

practices than those authorized in the

permit. Please note that under this

proposal, liquids managed in tanks or

containers would only become newly

listed waste if they meet the listing

description for constituent

concentration levels and if they are not

managed solely in tanks and containers

and then discharged directly from a

POTW or centralized wastewater

treatment facility. A Class 2

modification requires the facility owner

to provide public notice of the

modification request, a 60-day public

comment period, and an informal

meeting between the owner and the

public within the 60-day period. The

Class 2 process includes a ‘‘default

provision,’’ which provides that if the

Agency does not reach a decision within

120 days, the modification is

automatically authorized for 180 days. If

the Agency does not reach a decision by

the end of that period, the modification

is permanently authorized (see 40 CFR

270.42(b)).

A Class 3 modification is generally

appropriate if management of the newly

listed wastes requires additional or

different management practices than

those authorized in the permit or if

newly regulated land-based units are

involved. The initial public notification

and public meeting requirements are the

same as for Class 2 modifications.

However, after the end of the 60-day

public comment period, the Agency will

grant or deny the permit modification

request according to the more extensive

procedures of 40 CFR part 124. There is

no default provision for Class 3

modifications (see 40 CFR 270.42(c)).

Under 40 CFR 270.42(g)(1)(v), for

newly regulated land disposal units,

permitted facilities must certify that the

facility is in compliance with all

applicable 40 CFR Part 265 groundwater

monitoring and financial responsibility

requirements no later than 6 months

after the date of publication of a final

rule. If the facility fails to submit these

certifications, authority to manage the

newly listed wastes under 40 CFR

270.42(g) will terminate on that date.

For states which have not yet picked

up the permit modification tables of 40

CFR 270.42, ‘‘major’’ and ‘‘minor’’

permit modifications should be applied

as appropriate to the permit

modification request.

4. Units

Units in which newly identified

hazardous wastes are generated or

managed would be subject to all

applicable requirements of 40 CFR part

264 for permitted facilities or 40 CFR

part 265 for interim status facilities,

unless the unit is excluded from such

permitting by other provisions, such as

the wastewater treatment tank

exclusions (40 CFR 264.1(g)(6) and

265.1(c)(10)) and the product storage

tank exclusion (40 CFR 261.4(c)).

Examples of units to which these

exclusions could never apply include

landfills, waste piles, incinerators, and

any other miscellaneous units in which

these wastes may be generated or

managed.

5. Closure

All units in which newly identified

hazardous wastes are treated, stored, or

disposed after the effective date of this

regulation that are not excluded from

the requirements of 40 CFR parts 264

and 265 would be subject to both the

general closure and post-closure

requirements of subpart G of 40 CFR

parts 264 and 265 and the unit-specific

closure requirements set forth in the

applicable unit technical standards

subpart of 40 CFR part 264 or 265 (e.g.,

Subpart N for landfill units). In

addition, EPA promulgated a final rule

that allows, under limited

circumstances, regulated landfills or

surface impoundments to cease

managing hazardous waste, but to delay

Subtitle C closure to allow the unit to

continue to manage nonhazardous waste

for a period of time prior to closure of

the unit (see 54 FR 33376, August 14,

1989). Units for which closure is

delayed continue to be subject to all

applicable 40 CFR parts 264 and 265

requirements. Dates and procedures for

submittal of necessary demonstrations,

permit applications, and revised

applications are detailed in 40 CFR

264.113(c) through (e) and 265.113(c)

through (e).

VIII. CERCLA Designation and

Reportable Quantities

A. What Is the Relationship Between

RCRA and CERCLA?

CERCLA (Comprehensive

Environmental Response,

Compensation, and Liability Act of

1980) defines the term ‘‘hazardous

substance’’ to include RCRA listed and

characteristic hazardous wastes. When

EPA adds a hazardous waste under

RCRA, the Agency also will add the

waste to its list of CERCLA hazardous

substances. EPA establishes a reportable

quantity, or RQ, for each CERCLA

hazardous substance. EPA provides a

list of the CERCLA hazardous

substances along with their RQs in

Table 302.4 at 40 CFR 302.4. If you are

the person in charge of a vessel or

facility that releases a CERCLA

hazardous substance in an amount that

equals or exceeds its RQ, then you must

report that release to the National

Response Center (NRC) pursuant to

CERCLA Section 103. You also may

have to notify State and local

authorities.

B. How Does EPA Determine Reportable

Quantities?

Under CERCLA, all new hazardous

substances automatically have a

statutory one-pound RQ. EPA adjusts

the RQ of a newly added hazardous

substance based on an evaluation of its

intrinsic physical, chemical, and toxic

properties. These intrinsic properties—

called ‘‘primary criteria’’—are aquatic

toxicity, mammalian toxicity (oral,

dermal, and inhalation), ignitability,

reactivity, chronic toxicity, and

potential carcinogenicity. EPA evaluates

the data for a hazardous substance for

each primary criterion. To adjust the

RQs, EPA ranks each criterion on a scale

that corresponds to an RQ value of 1, 10,

100, 1,000, or 5,000 pounds. For each

criterion, EPA establishes a tentative

RQ. A hazardous substance may receive

several tentative RQ values based on its

particular intrinsic properties. The

lowest of the tentative RQs becomes the

‘‘primary criteria RQ’’ for that

substance.

After the primary criteria RQs are

assigned, EPA further evaluates

substances for their susceptibility to

certain degradative processes. These are

secondary adjustment criteria. The

natural degradative processes are

biodegradation, hydrolysis, and

photolysis (BHP). If a hazardous

substance, when released into the

environment, degrades rapidly to a less

hazardous form by one or more of the

BHP processes, EPA generally raises its

RQ (as determined by the primary RQ

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10125

46We are considering an alternative proposal not

to list paint manufacturing waste liquids (see

Section IV.D). If we do not list wastes under K180,

then there would be no need to promulgate adjusted

RQs for the following constituents: n-butyl alcohol,

methylene chloride, formaldehyde, ethylbenzene,

styrene, toluene, and xylene.

adjustment criteria) by one level.

Conversely, if a hazardous substance

degrades to a more hazardous product

after its release, EPA assigns an RQ to

the original substance equal to the RQ

for the more hazardous substance.

The standard methodology used to

adjust the RQs for RCRA hazardous

waste streams differs from the

methodology applied to individual

hazardous substances. The procedure

for assigning RQs to RCRA waste

streams is based on the results of an

analysis of the hazardous constituents of

the waste streams. The constituents of

each RCRA hazardous waste stream are

identified in 40 CFR part 261, Appendix

VII. EPA first determines an RQ for each

hazardous constituent within the waste

stream using the methodology described

above. The lowest RQ value of these

constituents becomes the adjusted RQ

for the waste stream. When there are

hazardous constituents of a RCRA waste

stream that are not CERCLA hazardous

substances, the Agency develops an RQ,

called a ‘‘reference RQ,’’ for these

constituents in order to assign an

appropriate RQ to the waste stream (see

48 FR 23565, May 25, 1983). In other

words, the Agency derives the RQ for

waste streams based on the lowest RQ

of all of the hazardous constituents,

regardless of whether they are CERCLA

hazardous substances.

C. Is EPA Proposing to Adjust the

Statutory One Pound RQ for These

Wastes?

In today’s proposed rule, EPA is

proposing to assign 100-pound adjusted

RQs to the K179 and K180 wastes. The

RQs for each of the constituents

contained in the two proposed wastes

are presented in the table below.46

TABLE VIII.C–1.—PROPOSED RQS

FOR CONSTITUENTS IDENTIFIED IN

K179 AND K180 WASTES

Constituents in K179 & K180

waste streams

Constituent

RQ (lbs.)

(40 CFR

302.4)

Acrylonitrile ........................... 100

Acrylamide ............................ 5000

Antimony ............................... 5000

N-butyl alcohol ...................... 5000

Methylene chloride

(dichloromethane) ............. 1000

Formaldehyde ....................... 100

Ethylbenzene ........................ 1000

Methyl isobutyl ketone .......... 5000

TABLE VIII.C–1.—PROPOSED RQS

FOR CONSTITUENTS IDENTIFIED IN

K179 AND K180 WASTES—Continued

Constituents in K179 & K180

waste streams

Constituent

RQ (lbs.)

(40 CFR

302.4)

Methyl methacrylate ............. 1000

Styrene ................................. 1000

Toluene ................................. 1000

Xylene ................................... 1000

D. How Would a Concentration-Based

Hazardous Waste Listing Approach

Relate to My Reporting Obligations

Under CERCLA? When Would I Need To

Report a Release of These Wastes Under

CERCLA?

Today’s proposed hazardous waste

listings are based on the concentrations

of the hazardous constituents in the

wastes. Adjusted RQs of 100 pounds are

being proposed for these wastes based

on the lowest RQ of the hazardous

constituents in the wastes. Notification

is required under CERCLA when wastes

meeting the listing descriptions are

released into the environment in a

quantity that equals or exceeds the RQ

for the waste.

For CERCLA reporting purposes, the

Clean Water Act mixture rule (40 CFR

302.6) applies to releases of these wastes

when the quantity (or concentrations) of

all of the hazardous constituents in the

waste are known. In such a case,

notification is required where an

amount of waste is released that

contains an RQ or more of any

hazardous substance contained in the

waste. When the quantity (or

concentration) of one or more of the

hazardous constituents is not known,

notification is required when the

quantity of waste released equals or

exceeds the RQ for the waste stream.

Although today’s proposed hazardous

waste listings are based on the

concentrations of the hazardous

constituents in the wastes, the Agency

recognizes that it may not be necessary

for a generator of these wastes to learn

the concentrations of every hazardous

constituent in the wastes in order to

determine whether one of the listing

descriptions applies. This is because a

waste stream need exceed only one of

the constituent-specific regulatory levels

to meet one of the listing descriptions.

Moreover, many generators, after testing

their waste streams initially, may use

knowledge of the waste, or of the

process generating the waste, to

determine that their waste is or is not

hazardous under 40 CFR 262.11.

Today’s proposed rule requires

sampling and analysis only for largevolume generators of the proposed

waste streams. Therefore, many smaller

generators may not know the

concentrations of the constituents in

their wastes. For these reasons, EPA

believes that many, if not a majority, of

the generators of these wastes may not

know the concentrations of every

constituent in these wastes, and may

not, therefore, be able to apply the

mixture rule.

E. How Would I Report a Release?

To report a release of proposed K179

or K180 (or any other CERCLA

hazardous substance) that equals or

exceeds its RQ, you would need to

immediately notify the National

Response Center (NRC) as soon as you

have knowledge of that release. The tollfree telephone number of the NRC is 1–

800–424–8802; in the Washington, DC,

metropolitan area, the number is (202)

267–2675.

You could also need to notify State

and local authorities. The Emergency

Planning and Community Right-toKnow Act (EPCRA) requires that owners

and operators of certain facilities report

releases of CERCLA hazardous

substances and EPCRA extremely

hazardous substances (see list in 40 CFR

part 355, appendix A) to State and local

authorities. After the release of an RQ or

more of any of those substances, you

must report immediately to the

community emergency coordinator of

the local emergency planning committee

for any area likely to be affected by the

release, and to the State emergency

response commission of any State likely

to be affected by the release.

F. What Is the Statutory Authority for

This Program?

Section 101(14) of CERCLA defines

the term hazardous substance by

referring to substances listed under

several other environmental statutes, as

well as those substances that EPA

designates as hazardous under CERCLA

section 102(a). In particular, CERCLA

section 101(14)(C) defines the term

hazardous substance to include ‘‘any

hazardous waste having the

characteristics identified under or listed

pursuant to section 3001 of the Solid

Waste Disposal Act.’’ CERCLA section

102(a) gives EPA authority to establish

RQs for CERCLA hazardous substances.

CERCLA section 103(a) requires any

person in charge of a vessel or facility

that releases a CERCLA hazardous

substance in an amount equal to or

greater than its RQ to report the release

immediately to the federal government.

EPCRA section 304 requires owners or

operators of certain facilities to report

10126 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

47Small Business Size Standards—Matched to

North American Industrial Classification System

(NAICS) Codes, Effective October 1, 2000, Small

Business Administration (SBA)

releases of CERCLA hazardous

substances and EPCRA extremely

hazardous substances to State and local

authorities.

G. How Can I Influence EPA’s Thinking

on Regulating K179 and K180 Under

CERCLA?

In developing this proposal, EPA tried

to address the concerns of all our

stakeholders. Your comments will help

us to improve this proposal. We invite

you to provide your views on this

proposal and how it may affect you. We

also are interested in receiving any

comments that you have on the

information provided in Table VIII.C–1,

including the hazardous constituents

identified for proposed K179 and K180

and the maximum observed

concentrations for each constituent.

IX. Analytical And Regulatory

Requirements

A. Is This a Significant Regulatory

Action Under Executive Order 12866?

Under Executive Order 12866, EPA

must determine whether a regulatory

action is significant and, therefore,

subject to comprehensive review by the

Office of Management and Budget

(OMB), and the other provisions of the

Executive Order. A significant

regulatory action is defined by the Order

as one that may:

(1) Have an annual effect on the economy

of $100 million or more or adversely affect

in a material way the economy, a sector of

the economy, productivity, competition, jobs,

the environment, public health or safety, or

State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or

otherwise interfere with an action taken or

planned by another agency;

(3) Materially alter the budgetary impact of

entitlements, grants, user fees, or loan

programs or rights and obligations or

recipients thereof; or

(4) Raise novel legal or policy issues

arising out of legal mandates, the President’s

priorities, or the principles set forth in

Executive Order 12866.

OMB has determined that today’s

proposed rule is a ‘‘significant

regulatory action,’’ because it may raise

novel legal or policy issues. As such,

this action was submitted to OMB for

review. Changes made in response to

OMB suggestions or recommendations

will be documented in the public

record.

Based on the results of our economic

analysis of the proposed rule, we

believe that the annual economic effects

of this proposed rule do not meet the

requirements for an economically

significant regulatory action (see point

one above). On the national level, the

annual compliance costs of this rule, as

proposed, are estimated to be less than

$100 million. We are unable to quantify

the benefits of the proposed rule, but

anticipate that such benefits would also

be less than $100 million. Furthermore,

we do not expect this proposed rule to

adversely affect, in a material way, the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local, or tribal governments or

communities.

We have prepared two economic

support documents for this proposed

action. These are: Economic Assessment

for the Proposed Concentration-Based

Listing of Wastewaters and NonWastewaters from the Production of

Paints and Coatings, and, Regulatory

Flexibility Screening Analysis for the

Proposed Concentration-Based Listing

of Wastewaters and Non-Wastewaters

from the Production of Paints and

Coatings. The Economic Assessment

addresses, among other elements,

compliance costs to the regulated

community, industry economic impacts,

qualitative benefits, children’s health,

unfunded mandates, regulatory takings,

federalism, and environmental justice.

The Regulatory Flexibility Screening

Analysis (RFSA) examines impacts to

small entities that may result from this

action, as proposed. These analyses

cover not only the impacts on the paint

industry, but also the potential impacts

on land disposal facilities that have

disposed of the wastes considered in

this rulemaking. Because of the

proposed listing, leachate from these

landfills may be hazardous under the

Derived-from Rule. Also, when the

leachate from these two wastes mixes

with leachate from other wastes

disposed in these landfills the entire

leachate quantity may be considered

hazardous under the Mixture Rule. A

summary of findings from this

Economic Assessment is presented

directly below. The RFSA is

summarized in Part B of this Section.

The complete Economic Assessment

and RFSA documents are available in

the RCRA docket established for this

action.

Paint manufacturers produce

varnishes, lacquers, enamels and

shellac, putties, wood fillers and sealers,

paint and varnish removers, paint and

brush cleaners, and allied products. The

products are produced for four end-use

markets: architectural coatings, product

finishes for original equipment

manufacturers, special purpose

coatings, and allied paint products.

According to Census data for 1997 there

are approximately 1,495 facilities in

operation in the U.S., owned by 1,206

different companies. Total production is

estimated to range from 1.2 billion and

1.5 billion gallons per year between

1992 and 1998, with a total product

value of $17.2 billion in 1998. This

industry segmentation includes all

facilities identified in Standard

Identification Classification (SIC) 2851

and under the North American

Industrial Classification (NAICS) code

325510; this includes some

manufacturers of miscellaneous allied

paint products which will not be

impacted by the proposed rule.

Approximately 1,146, or 95 percent of

the paint manufacturing companies in

the U.S. are estimated to be small

according to the Small Business

Administration (SBA) definition for

small (fewer than 500 employees) based

on corporate level data.47 Many of these

facilities (and companies) are very

small, with fewer than ten full-time

employees.

While the Census of Manufacturers

identifies 1,495 facilities, not all of these

facilities are actually paint

manufacturers potentially affected by

the proposed waste listing. The Agency

has estimated, using a RCRA 3007

survey of the industry, that there are 972

facilities that manufacture paints and

coatings in the U.S. Of this total, we

estimate that 615 facilities operated by

494 companies generate the waste

streams of concern for this proposed

listing. On the basis of the extrapolated

survey, we estimate that these facilities

generate nearly 107,000 metric tons of

the targeted waste streams (K179 and

K180), of which about 36 percent is

currently managed as hazardous waste.

This analysis relies primarily on data

generated through the Agency’s survey

of the industry, augmenting this

information with Census and other

industry specific information as

appropriate.

We have developed impact estimates

for the concentration-based listing

proposal (the Agency’s preferred

approach) and two key options: A nolist or status quo option and a

traditional or standard listing approach

option. Under the proposed approach,

we also evaluated two alternative

scenarios: A nonwastewaters option

which limits the listing to waste solids

(K179) and a sensitivity analysis

scenario where wastes currently going

to hazardous fuel blending and cement

kilns would be diverted to a commercial

hazardous waste incinerator.

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10127

A supplementary analysis of our

RCRA 3007 survey data shows that an

estimated 50 percent of the

nonwastewaters and 20 percent of the

wastewaters generated by survey

respondents did not contain any of the

constituents of concern. We used these

ratios for our analysis of the percentage

of wastes that would be listed hazardous

waste for the concentration-based listing

approach (the Agency’s proposed

option), e.g., 50 percent of

nonwastewaters and 80 percent of

wastewaters would become hazardous.

Our findings under this approach may

overestimate compliance costs for waste

streams containing listed constituents

that fall below risk-based concentration

levels. We assumed that one-hundred

percent of all targeted wastes were

designated as hazardous under the

aggregate findings for the traditional or

standard listing option.

The estimated impacts associated

with the Agency proposed approach,

alternative scenarios to the proposed

approach, and alternative waste listing

options are presented in the table below.

As indicated, we estimate that the

nonwastewaters scenario under the

proposed approach is the least costly, at

$6.7 million per year for all impacted

facilities. Our proposed approach has

estimated annual costs of $7.3 million

per year, or $600,000 more than the

nonwastewaters scenario. If we assume

that the wastes currently going to

hazardous waste fuel blending will be

diverted to commercial incinerators (the

sensitivity analysis) we estimate

aggregate cost of $18.1 million per year.

The traditional or standard listing

option is estimated to cost $10.9 million

per year. The no-list or status quo

option would result in no incremental

costs to industry. The impact estimates

in Table IX.A–1 are fully weighted to

account for model facility

representation. These figures (except the

Traditional Option) also assume

baseline conditions where 50 percent of

the nonwastewaters and 20 percent of

the wastewaters are nonhazardous, as

managed under the proposed waste

listing option.

TABLE IX.A–1.—SUMMARY OF ESTIMATED IMPACTS FROM ALL WASTE LISTING OPTIONS AND SCENARIOS

Listing option/scenario

Average

weighted incremental annual cost as a

percent of

gross annual

sales

Aggregate annual compliance cost impacts

(million 1999

dollars)

Proposed Concentration-Based Listing—Agency Preferred Approach (APA) ........................................................ 0.07 1 7.3

Agency Preferred Approach-Sensitivity Analysis Scenario (APA 1) (Waste going to all fuel blending is diverted

to commercial incineration) .................................................................................................................................. 0.19 18.1

Agency Preferred Approach—List Solids (K179) Only (APA 2) ............................................................................. 0.06 6.7

Traditional or Standard Listing Option ..................................................................................................................... 0.10 1 10.9

No List—Status Quo Option .................................................................................................................................... 0.0 0.0

1While cost estimates under the APA represent only 50 percent of total nonhazardous solids and 80 percent of the nonhazardous liquids, aggregate impacts do not directly reflect this difference. The unweighted and unscaled waste management costs under the APA are estimated at

$1.8 million. The unweighted and unscaled waste management costs under the Traditional Listing Option are estimated at $3.5 million. Applying

the weighting and scaling factors, plus transportation, administrative, and analytical (APA only) costs results in aggregate annual nationwide compliance costs of $7.3 million for the APA and $10.9 million for the Traditional Option.

In addition to the costs presented

above, incremental costs expected to be

incurred by the landfill industry are

estimated to be approximately $300,000

to $400,000 annually for the proposed

option (The Clean Water Act Exemption

with Two-Year Impoundment

Replacement Deferral regulatory

option). However, the costs may be

considerably lower as the result of

possible savings gained through contract

negotiations for repeat customers who

provide consistent revenue streams to

shipping companies through their

regularly scheduled shipments of

leachate. It also is likely that not all

landfills that received paint wastes prior

to this proposed action have leachate

collection systems, which would lower

the cost estimates. Finally, there is

likely some overlap from paint facilities

disposing in the same landfill, which

will result in lower costs to the landfill

industry.

Table IX.A–2 presents impacts for

different size classes of the model

facilities, based on employment. The

impacts presented in this table represent

the impacts on the facilities associated

with the proposed waste listing

approach (APA). However, these figures

assume that 100 percent of all of the

waste generated is hazardous, as a highend scenario. In general, cost impacts as

a percent of sales are modest, averaging

just over 0.1 percent of gross annual

revenues. For three of the 151 ‘‘model

facilities,’’ impacts exceed 1.0 percent of

gross sales; these three model facilities

are estimated to represent six total

facilities. (The reader should note these

findings are at the facility, not the

company or parent firm level.)

TABLE IX.A–2.—ESTIMATED COST IMPACTS ON MODEL FACILITIES FROM THE AGENCY PREFERRED LISTING APPROACH

Model facility size range

(number of employees per facility)

Estimated

1999 average

annual gross

sales

(thousand dollars)

Unweighted incremental cost

range per

facility*

(percent of

gross annual

sales)

Average

unweighted incremental cost

as a percent

of sales*

1–19 ............................................................................................................................................. 3,661 0.04–3.77 0.11

20–49 ........................................................................................................................................... 11,484 0.01–0.50 0.05

50–149 ......................................................................................................................................... 31,839 0.01–4.06 0.11

10128 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

TABLE IX.A–2.—ESTIMATED COST IMPACTS ON MODEL FACILITIES FROM THE AGENCY PREFERRED LISTING APPROACH—

Continued

Model facility size range

(number of employees per facility)

Estimated

1999 average

annual gross

sales

(thousand dollars)

Unweighted incremental cost

range per

facility*

(percent of

gross annual

sales)

Average

unweighted incremental cost

as a percent

of sales*

150 & Above ................................................................................................................................ 85,791 0.01–1.33 0.17

* Estimates derived assuming 100 percent of all waste streams generated by the model facilities are hazardous.

The proposed rule is intended to

reduce the potential for environmental

releases of hazardous wastes. Depending

on current and future exposure patterns,

the proposed rule could yield benefits

in terms of reductions in health risks

due to stricter controls on the

management of this waste. The Agency

has not monetized or quantitatively

estimated the human health or

environmental benefits, but anticipates

that such benefits would be less than

$100 million. Furthermore, additional

data are necessary to determine whether

there will be net benefits (i.e., benefits

exceeding costs) from the proposed rule.

B. What Consideration Was Given to

Small Entities Under the Regulatory

Flexibility Act (RFA), as Amended by

the Small Business Regulatory

Enforcement Fairness Act of 1996

(SBREFA), 5 U.S.C. 601 et seq.?

Introduction

The RFA generally requires an agency

to prepare a regulatory flexibility

analysis of any rule subject to notice

and comment rulemaking requirements

under the Administrative Procedure Act

or any other statute, unless the agency

certifies that the rule will not have a

significant economic impact on a

substantial number of small entities.

Small entities include small businesses,

small organizations, and small

governmental jurisdictions.

For purposes of assessing the impacts

of rules on small entities, a small entity

is defined as: (1) A small business that

has fewer than 1000, 750, or 500

employees per firm depending upon the

SIC code the firm is primarily classified

in; (2) a small governmental jurisdiction

that is a government of a city, county,

town, school district or special district

with a population of less than 50,000; or

(3) a small organization that is any notfor-profit enterprise which is

independently owned and operated and

is not dominant in its field.

After considering the economic

impacts of today’s proposed rule on

small entities, we believe that this

action should not have a significant

economic impact on a substantial

number of small entities. In determining

whether a rule has a significant

economic impact on a substantial

number of small entities, the impact of

concern is any significant adverse

economic impact on small entities,

since the primary purpose of the

regulatory flexibility analyses is to

identify and address regulatory

alternatives ‘‘which minimize any

significant economic impact of the

proposed rule on small entities’ (5

U.S.C. 603 and 604). Thus, an agency

may certify that a rule will not have a

significant economic impact on a

substantial number of small entities if

the rule relieves regulatory burden, or

otherwise has a positive economic effect

on all of the small entities subject to the

rule.

We have completed a screening

analysis (Regulatory Flexibility

Screening Analysis for the Proposed

Concentration-Based Listing of

Wastewaters and Non-Wastewaters from

the Production of Paints and Coatings),

in support of today’s proposed action.

Findings from this Regulatory

Flexibility Screening Analysis (RFSA),

as described in the previous section

above, suggest that today’s rule, as

proposed, will not result in significant

economic impacts on a substantial

number of small business paint

manufacturers potentially subject to rule

requirements.

Findings

Between 93 percent and 95 percent of

all paint and coatings manufacturing

companies are estimated to be ‘‘small,’’

based on the SBA definition. Census

data from 1997 indicate a total of 95

percent are small companies, while our

research based on the RCRA 3007

survey data on 1998 practices and

research on representative companies

indicate approximately 91 percent of all

companies may be small. An average of

these sources indicates approximately

93 percent, or 460 out of the total of 494

different companies operating 615

facilities potentially subject to rule

requirements may be considered small

for purposes of this analysis. We have

determined that paint manufacturing

facilities are not owned or operated by

small (or large) entities (not-for-profits,

local governments, tribes, etc.), other

than businesses.

We estimate that, under the proposed

regulatory option, impacts on small

companies would average about 0.06

percent of annual gross revenues. Three

small companies (operating four

facilities) out of the total of 460 small

companies potentially subject to rule

requirements were found to experience

annual compliance cost impacts greater

than 1.0 percent of annual gross

revenues. We also examined potential

economic impacts to small businesses

under three alternative regulatory

options. Impacts to small businesses

under these options all averaged less

than 0.5 percent of annual gross

revenues.

The Agency is required to make an

initial determination if any regulatory

action may have a ‘‘significant economic

impact on a substantial number of small

entities,’’ as required by the RFA as

amended by SBREFA. However, the

legislation presents no explicit

guidelines regarding what constitutes a

significant impact or what constitutes a

significant number of small entities for

this particular industry. Based on a

review of overall impacts we believe

that the impacts on small entities, as

estimated in this report, should not be

considered ‘‘significant.’’ It is also

anticipated that the industry will pass at

least some of these costs on in the form

of higher paint prices, thereby reducing

the actual effect on individual small

entities.

The paint and coatings industry is

dominated by small entities, at least in

terms of number of facilities.

Accordingly it may be argued that there

could be a substantial number of small

entities impacted. However it appears

that the impacts on these small entities

are modest, especially compared with

large facilities, as illustrated in Table

IX.B–3 below.

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10129

TABLE IX.B–3.—SUMMARY OF ESTIMATED IMPACTS FROM ALL WASTE LISTING OPTIONS SMALL AND LARGE FACILITIES *

Listing option Entity size

Number of

unweighted

model

facilities **

Average incremental cost as

a percent of

sales

Aggregate annual cost

impacts

(million 1999$/

year)

No List Option ................................................................................................... Large ............ 14 0.00 0.0

Small ............ 137 0.00 0.0

Traditional or Standard Listing .......................................................................... Large ............ 14 0.16 3.6

Small ............ 137 0.08 7.4

Agency Preferred Approach (APA) ................................................................... Large ............ 14 0.09 2.1

Small ............ 137 0.06 5.2

Agency Preferred Approach (Sensitivity Analysis Scenario APA1) .................. Large ............

Small ............

14

137

0.42

0.11

9.4

8.7

Agency Preferred Approach (Scenario to List Solids Only APA2) ................... Large ............

Small ............

14

137

0.09

0.05

2.0

4.7

* Large entities include all facilities which could be identified as being owned by companies with more than 500 employees. The small entity

category contains all other facilities.

** The estimated total number of small entities affected by the rule industry-wide is 572; there are an estimated 43 large entities affected.

Conclusions

After considering the above findings,

I certify that this proposed action

should not result in significant

economic impacts on a substantial

number of small paints and coatings

manufacturing businesses subject to rule

requirements. Furthermore, this rule, as

proposed does not require further

analysis and evaluation under a full

Regulatory Flexibility Analysis. The

RFSA document: Regulatory Flexibility

Screening Analysis for the Proposed

Concentration-Based Listing of

Wastewaters and Non-Wastewaters from

the Production of Paints and Coatings,

is available for review in the docket

established for today’s action.

Concerned stakeholders are encouraged

to conduct a comprehensive review and

evaluation of this document and

provide non-restricted data and

comments designed to improve this

analysis.

C. What Consideration Was Given to

Children’s Health Under Executive

Order 13045?

‘‘Protection of Children from

Environmental Health Risks and Safety

Risks’’ (62 FR 19885, April 23, 1997)

applies to any rule that: (1) Is

determined to be ‘‘economically

significant’’ as defined under E.O.

12866, and (2) concerns an

environmental health or safety risk that

EPA has reason to believe may have a

disproportionate effect on children. If

the regulatory action meets both criteria,

the Agency must evaluate the

environmental health or safety effects of

the planned rule on children, and

explain why the planned regulation is

preferable to other potentially effective

and reasonably feasible alternatives

considered by the Agency. This

proposed rule is not subject to the

Executive Order because it is not

economically significant as defined in

E.O. 12866. Furthermore, the Agency

does not have reason to believe that

environmental health or safety risks

addressed by this action present a

disproportionate risk to children.

The topic of environmental threats to

children’s health is growing in

regulatory importance as scientists,

policy makers, and village leaders

continue to recognize the extent to

which children are particularly

vulnerable to environmental hazards.

Recent EPA actions have been in the

forefront of addressing environmental

threats to the health and safety of

children. Today’s proposed rule further

reflects our commitment to mitigating

environmental threats to all citizens,

including children.

A few significant physiological

characteristics are largely responsible

for children’s increased susceptibility to

environmental hazards. First, children

eat proportionately more food, drink

proportionately more fluids, and breathe

more air per pound of body weight than

do adults. As a result, children

potentially experience greater levels of

exposure to environmental threats than

do adults. Second, because children’s

bodies are still in the process of

development, their immune systems,

neurological systems, and other

immature organs can be more easily and

considerably affected by environmental

hazards. The connection between these

physical characteristics and children’s

susceptibility to environmental threats

are reflected in the higher baseline risk

levels for children.

Today’s proposed rule is intended to

reduce potential releases of hazardous

wastes to the environment. Depending

on current and future exposure patterns,

any risks associated with such releases

would also decrease. EPA considered

risks to children in its risk assessment

and set allowable concentrations for

constituents in the waste at levels that

are believed to be protective to children,

as well as adults. The management

practices proposed in this rule are

intended to reduce the potential for

unacceptable risks to children

potentially exposed to the constituents

of concern.

The public is invited to submit or

identify peer-reviewed studies and data,

of which the agency may not be aware,

that assess results of early life exposure

to the proposed hazardous constituents

from paint manufacturing wastes

addressed in this Proposal.

D. What Consideration Was Given to

Environmental Justice Under Executive

Order 12898?

Executive Order 12898, ‘‘Federal

Actions to Address Environmental

Justice in Minority Populations and

Low-Income Population’’ (February 11,

1994), is designed to address the

environmental and human health

conditions of minority and low-income

populations. EPA is committed to

addressing environmental justice

concerns and has assumed a leadership

role in environmental justice initiatives

to enhance environmental quality for all

citizens of the United States. The

Agency’s goals are to ensure that no

segment of the population, regardless of

race, color, national origin, income, or

net worth bears disproportionately high

and adverse human health and

environmental impacts as a result of

EPA’s policies, programs, and activities.

In response to Executive Order 12898,

and to concerns voiced by many groups

outside the Agency, EPA’s Office of

Solid Waste and Emergency Response

(OSWER) formed an Environmental

Justice Task Force to analyze the array

of environmental justice issues specific

10130 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

to waste programs and to develop an

overall strategy to identify and address

these issues (OSWER Directive No.

9200.3–17).

We have assessed whether today’s

proposed rule may help mitigate, or

result in disproportionate effects on

minority or low-income populations.

Due to budgeting and scheduling

constraints, we have not compiled data

correlating individual paint facility

locations with minority/low income

populations. However, our risk

assessment did not identify risks from

management of paint manufacturing

waste liquids in tanks onsite at the paint

manufacturing facility. Therefore, we

believe that any populations in

proximity to paint manufacturing

facilities are not adversely affected by

waste management practices within the

purview of this proposal. This proposed

listing is intended to reduce

unacceptable risks associated with

managing paint manufacturing wastes in

nonhazardous waste landfills and in

surface impoundments. This would

reduce risks for any populations living

in proximity to such facilities who rely

on groundwater for drinking water

supplies.

The affected paint manufacturing

facilities, however, are distributed

throughout the country and many are

known to be located within highly

urbanized areas. Furthermore, the waste

management units in question are

estimated, on average, to be located

within 50 miles of the manufacturing

facilities. Because the proposed rule

would provide incentives for reducing

the use of hazardous constituents and is

intended to reduce environmental risks

associated with the management of the

targeted waste streams, the Agency

believes that this rule could help

mitigate health risks to minority and

low income communities living near

impacted facilities. Furthermore, we

have no data indicating that today’s

proposal would result in

disproportionately negative impacts on

minority or low income communities.

E. What Consideration Was Given to

Unfunded Mandates?

Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), Public

Law 104–4, establishes requirements for

Federal Agencies to assess the effects of

their regulatory actions on State, local,

and tribal governments and the private

sector. Under section 202 of the UMRA,

EPA must prepare a written analysis,

including a cost-benefit analysis, for

proposed and final rules with ‘‘Federal

mandates’’ that may result in

expenditures to State, local, and tribal

governments, in the aggregate, or to the

private sector, of $100 million or more

in any one year. Before promulgating an

EPA rule for which a written statement

is needed, section 205 of the UMRA

requires EPA to identify and consider a

reasonable number of regulatory

alternatives and adopt the least costly,

most cost-effective, or least burdensome

alternative that achieves the objectives

of the rule. The provisions of section

205 do not apply when they are

inconsistent with applicable law. Before

EPA establishes any regulatory

requirements that may significantly or

uniquely affect small governments,

including tribal governments, it must

have developed under section 203 of the

UMRA a small government agency plan.

The plan must provide for notifying

potentially affected small governments,

enabling officials to have meaningful

and timely input in the development of

regulatory proposals, and informing,

educating, and advising small

governments on compliance with the

regulatory requirements.

This rule does not include a Federal

mandate that may result in expenditures

of $100 million or more to State, local,

or tribal governments in the aggregate,

because this rule imposes no

enforceable duty on any State, local, or

tribal governments. EPA also has

determined that this rule contains no

regulatory requirements that might

significantly or uniquely affect small

governments. In addition, as discussed

above, the private sector is not expected

to incur costs exceeding $100 million.

Therefore, today’s proposed rule is not

subject to the requirements of sections

202, 203, and 205 of UMRA.

F. What Consideration Was Given to

Federalism Under Executive Order

13132?

Executive Order 13132, entitled

‘‘Federalism’’ (64 FR 43255, August 10,

1999), requires EPA to develop an

accountable process to ensure

‘‘meaningful and timely input by State

and local officials in the development of

regulatory policies that have federalism

implications.’’ ‘‘Policies that have

federalism implications’’ are defined in

the Executive Order to include

regulations that have ‘‘substantial direct

effects on the States, on the relationship

between the national government and

the States, or on the distribution of

power and responsibilities among the

various levels of government.’’

Under Section 6 of Executive Order

13132, EPA may not issue a regulation

that has federalism implications, that

imposes substantial direct compliance

costs, and that is not required by statute,

unless the Federal government provides

the funds necessary to pay the direct

compliance costs incurred by State and

local governments, or EPA consults with

State and local officials early in the

process of developing the proposed

regulation. EPA also may not issue a

regulation that has federalism

implications and that preempts State

law, unless the Agency consults with

State and local officials early in the

process of developing the proposed

regulation.

Section 4 of the Executive Order

contains additional requirements for

rules that preempt State or local law,

even if those rules do not have

federalism implications (i.e., the rules

will not have substantial direct effects

on the States, on the relationship

between the national government and

the states, or on the distribution of

power and responsibilities among the

various levels of government). Those

requirements include providing all

affected State and local officials notice,

and an opportunity for appropriate

participation in the development of the

regulation. If the preemption is not

based on expressed or implied statutory

authority, EPA also must consult, to the

extent practicable, with appropriate

State and local officials regarding the

conflict between State law and federally

protected interests within the agency’s

area of regulatory responsibility.

This proposed rule does not have

federalism implications. It will not have

substantial direct effects on the States,

on the relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132. This rule, as

proposed, is projected to result in

economic impacts to privately owned

paint manufacturing facilities. Marginal

administrative burden impacts may

occur to selected States an/or EPA

Regional Offices if these entities

experience increased administrative

needs, enforcement requirements, or

voluntary information requests.

However, this rule, as proposed, will

not have substantial direct effects on the

States, intergovernmental relationships,

or the distribution of power and

responsibilities. Thus, Executive Order

13132 does not apply to this rule.

In the spirit of Executive Order 13132,

and consistent with EPA policy to

promote communications between EPA

and State and local governments, we

specifically solicit comment on this

proposed rule from State and local

officials.

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10131

G. What Consideration Was Given to

Tribal Governments Under Executive

Order 13175: Consultation and

Coordination With Indian Tribal

Governments?

Executive Order 13175, ‘‘Consultation

and Coordination With Indian Tribal

Governments,’’ was signed by the

President on November 6, 2000. As of

January 6, 2001, Executive Order 13175

(65 FR 67249) took effect and revoked

Executive Order 13084. Please note that

we addressed tribal considerations

under Executive Order 13084 because

we developed this proposed rule during

the period when this Order was in

effect. We will analyze and fully comply

with the requirements of Executive

Order 13175 before promulgating the

final rule.

This Order applies to regulations not

specifically required by statute that

significantly or uniquely affect the

communities of Indian tribal

governments, and that impose

substantial direct compliance costs on

Indian tribal governments. If any rule is

projected to result in significant direct

costs to Indian tribal communities, EPA

cannot issue this rule unless the Federal

government provides funds necessary to

pay the direct costs incurred by the

Indian tribal government or the tribe, or

consults with the appropriate tribal

government officials early in the process

of developing the proposed regulation.

If EPA complies by consulting, we

must provide the Office of Management

and Budget (OMB) with all required

information. We must also summarize,

in a separately identified section of the

preamble to the proposed or final rule,

a description of the extent of our prior

consultation with representatives of

affected tribal governments, a summary

of their concerns, and a statement

supporting the need to issue the

regulation. Also, Executive Order 13175

requires EPA to develop an effective

process permitting elected and other

representatives of Indian tribal

governments to, ‘‘provide meaningful

and timely input in the development of

regulatory policies on matters that

significantly or uniquely affect their

communities.’’

Today’s rule implements mandates

specifically and explicitly set forth by

the U.S. Congress. This action is

proposed under the authority of sections

3001(b)(1), and 3001(e)(2) of the

Hazardous and Solid Waste

Amendments (HSWA) of 1984. These

sections direct EPA to make a hazardous

waste listing determination for ‘‘paint

production wastes.’’ Accordingly, the

requirements of Executive Order 13175

do not apply to this rule.

Furthermore, today’s proposal would

not significantly or uniquely affect the

communities of Indian tribal

governments, nor would it impose

substantial direct compliance costs on

them. Tribal communities are not

known to own or operate any paint/

coatings manufacturing facilities, nor

are these communities

disproportionately located adjacent to or

near such facilities. Finally, tribal

governments will not be required to

assume any administrative or permitting

responsibilities associated with this

proposed rule.

X. Paperwork Reduction Act (PRA), 5

U.S.C. 3501–3520

A. How is the Paperwork Reduction Act

Considered in Today’s Proposed Rule?

The information collection

requirements in this proposed rule have

been submitted for approval to the

Office of Management and Budget

(OMB) under the Paperwork Reduction

Act, 44 U.S.C. 3501 et seq. An

Information Collection Request (ICR)

document has been prepared (ICR No.

2006.01) and a copy may be obtained

from Sandy Farmer by mail at

Collection Strategies Division; U.S.

Environmental Protection Agency

(2822); 1200 Pennsylvania Ave., NW,

Washington, DC 20460, by email at

farmer.sandy@epamail.epa.gov, or by

calling (202) 260–2740. A copy may also

be downloaded off the internet at http:/

/www.epa.gov/icr.

This rule is proposed under the

authority of sections 3001(e)(2) and

3001(b)(1) of the Hazardous and Solid

Waste Amendments (HSWA) of 1984.

The effect of listing the wastes described

earlier will be to subject industry to

management and treatment standards

under the Resource Conservation and

Recovery Act (RCRA).

This proposed concentration-based

listing is designed to be selfimplementing. Under this proposed

approach, generators of the K179 and/or

K180 wastes must determine if their

waste is nonhazardous. This

determination will ensure that

concentration levels of the constituents

of concern in the targeted wastes are

below the regulatory levels. As a result,

this rule, as proposed, represents only

an incremental increase in burden for

generators and subsequent handlers of

the newly listed wastes in complying

with existing RCRA information

collection requirements.

The total annual respondent burden

and cost for all paperwork associated

with the proposed rule is represented by

the new paperwork requirements for

listing paint wastes, plus the

incremental increase in paperwork

burden under five existing Information

Collection Requests (ICRs). We estimate

the total annual respondent burden for

all information collection activities to be

approximately 8,361 hours, at an annual

aggregate cost of approximately

$639,747. Of the total respondent

burden, only 1,457 hours per year, or

17.4 percent results from new

paperwork requirements. The remaining

6,904 hour increase is derived from five

existing paperwork requirements. These

include: The Biennial Report, Generator

Standards, Land Disposal restrictions,

Manifest, and Notification.

Burden means the total time, effort, or

financial resources expended by persons

to generate, maintain, retain, or disclose,

or provide information to or for a

Federal agency. This includes the time

needed to review instructions; develop,

acquire, install and use technology and

systems for the purpose of collecting,

validating, and verifying information,

processing and maintaining

information, and disclosing and

providing information; adjust the

existing ways to comply with any

previous applicable instructions and

requirements; train personnel to be able

to respond to a collection of

information; search new data sources;

complete and review the collection of

information; and transmit or otherwise

disclose the information.

An agency may not conduct or

sponsor, and a person is not required to

respond to a collection of information

unless it displays a currently valid OMB

control number. The OMB control

number for EPA’s regulations are listed

in 40 CFR part 9, and 48 CFR Chapter

15.

Comments are requested on the

Agency’s need for this information, the

accuracy of the provided burden

estimates, and any suggested methods

for minimizing respondent burden,

including through the use of automated

collection techniques. Send comments

on the ICR to the Director, Collection

Strategies Division; U.S. Environmental

Protection Agency (2822); 1200

Pennsylvania Ave., NW, Washington,

DC 20460; and to the Office of

Information and Regulatory Affairs,

Office of Management and Budget, 725

17th St., NW, Washington, DC 20503,

marked ‘‘Attention: Desk Officer for

EPA.’’ Include the ICR number in any

correspondence. Since OMB is required

to make a decision concerning the ICR

between 30 and 60 days after February

13, 2001, a comment to OMB is best

assured of having its full effect if OMB

receives it by March 15, 2001. The

proposed rule will respond to any OMB

or public comments on the information

10132 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

collection requirements contained in

this proposal.

XI. National Technology Transfer and

Advancement Act of 1995 (Pub L. 104–

113, *12(d) (15 U.S.C. 272 Note))

A. Was The National Technology

Transfer and Advancement Act

Considered?

Section 12(d) of the National

Technology Transfer and Advancement

Act of 1995 (‘‘NTTAA’’), Public Law

104–113, section 12(d) (15 U.S.C. 272

note) directs EPA to use voluntary

consensus standards in its regulatory

activities unless to do so would be

inconsistent with applicable law or

otherwise impractical. Voluntary

consensus standards are technical

standards (e.g., materials specifications,

test methods, sampling procedures, and

business practices) that are developed or

adopted by voluntary consensus

standards bodies. The NTTAA directs

EPA to provide Congress, through OMB,

explanations when the Agency decides

not to use available and applicable

voluntary consensus standards.

This proposed rulemaking may

involve voluntary consensus standards

related to sampling and analysis

procedures for waste characterization.

Our implementation approach for waste

characterization allows standard SW–

846 methods, or appropriate

alternatives. NTTAA does not apply to

today’s proposal because we are not

requiring paint facilities to employ

nonvoluntary consensus standards

which they may deem as ‘‘appropriate

alternatives.’’

List of Subjects

40 CFR Part 148

Administrative practice and

procedure, Hazardous waste, Reporting

and record keeping requirements, Water

supply.

40 CFR Part 261

Environmental protection, Hazardous

materials, Waste treatment and disposal,

Recycling.

40 CFR Part 268

Environmental protection, Hazardous

materials, Waste management,

Reporting and record keeping

requirements, Land Disposal

Restrictions, Treatment Standards.

40 CFR Part 271

Environmental protection,

Administrative practice and procedure,

Confidential business information,

Hazardous material transportation,

Hazardous waste, Indians-lands,

Intergovernmental relations, Penalties,

Reporting and record keeping

requirements, Water pollution control,

Water supply.

40 CFR Part 302

Environmental protection, Air

pollution control, Chemicals,

Emergency Planning and Community

Right-to-Know Act, Extremely

hazardous substances, Hazardous

chemicals, Hazardous materials,

Hazardous materials transportation,

Hazardous substances, Hazardous

wastes, Intergovernmental relations,

Natural resources, Reporting and record

keeping requirements, Superfund,

Waste treatment and disposal, Water

pollution control, Water supply.

Dated: January 25, 2001.

W. Michael McCabe,

Acting Administrator.

For the reasons set out in the

preamble, title 40, chapter I of the Code

of Federal Regulations is proposed to be

amended as follows:

PART 148—HAZARDOUS WASTE

INJECTION RESTRICTIONS

1. The authority citation for part 148

continues to read as follows:

Authority: Secs. 3004, Resource

Conservation and Recovery Act, 42 U.S.C.

6901, et seq.

2. Section 148.18 is amended by

adding paragraphs (n) and (o) to read as

follows:

§ 148.18 Waste specific prohibitions—

newly listed and identified wastes.

* * * * *

(n) Effective [insert date six months

after date of final rule], the wastes

specified in 40 CFR 261.32 as EPA

Hazardous Waste Numbers K179 and

K180 are prohibited from underground

injection.

(o) The requirements of paragraphs (a)

through (n) of this section do not apply:

(1) If the wastes meet or are treated to

meet the applicable standards specified

in Subpart D of part 268 of this title; or

(2) If an exemption from a prohibition

has been granted in response to a

petition under subpart C of this part; or

(3) During the period of extension of

the applicable effective date, if an

extension has been granted under

§ 148.4 of this part.

PART 261—IDENTIFICATION AND

LISTING OF HAZARDOUS WASTE

3. The authority citation for part 261

continues to read as follows:

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

6922, 6924(y), and 6938.

4. Section 261.3 is amended by

adding paragraph (c)(2)(ii)(F) to read as

follows:

§ 261.3 Definition of hazardous waste.

* * * * *

(c) * * *

(2) * * *

(ii) * * *

(F) Treatment residues from paint

manufacturing waste solids that met the

K179 listing, when they are below the

constituent concentration levels

specified in the listing at

§ 261.32(b)(6)(iii) and a new hazardous

waste determination is made following

the procedures specified in § 261.32(b).

These exempted treatment residues

must still meet all requirements

specified in part 268 of this chapter

prior to land disposal.

5. Section 261.4 is amended by

revising paragraph (b)(15) to read as

follows.

§ 261.4 Exclusions.

* * * * *

(b) * * *

(15) Leachate or gas condensate

collected from landfills where certain

solid wastes have been disposed,

provided that:

(i) The solid wastes disposed would

meet one or more of the listing

descriptions for Hazardous Waste Codes

K169, K170, K171, K172, K174, K175,

K179 and K180 if these wastes had been

generated after the effective date of the

listing;

(ii) The solid wastes described in

paragraph (b)(15)(i) of this section were

disposed prior to the effective date of

the listing;

(iii) The leachate or gas condensate do

not exhibit any characteristic of

hazardous waste nor are derived from

any other listed hazardous waste;

(iv) Discharge of the leachate or gas

condensate, including leachate or gas

condensate transferred from the landfill

to a POTW by truck, rail, or dedicated

pipe, is subject to regulation under

sections 307(b) or 402 of the Clean

Water Act.

(v) After [insert date 24 months from

date of promulgation], leachate or gas

condensate derived from K179 and/or

K180 will no longer be exempt if it is

stored or managed in a surface

impoundment prior to discharge. There

is one exception: if the surface

impoundment is used to temporarily

store leachate or gas condensate in

response to an emergency situation (e.g.,

shutdown of wastewater treatment

system), provided the impoundment has

a double liner, and provided the

leachate or gas condensate is removed

from the impoundment and continues to

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10133

be managed in compliance with the

conditions of this paragraph after the

emergency ends.

* * * * *

6. Section 261.32 is amended by

designating the introductory text and

the table as paragraph (a), and by

amending the newly designated table by

adding a new subgroup ‘‘Paint

Manufacturing’’ and its entries at the

end of the table and by adding

paragraphs (b) and (c) to read as follows:

§ 261.32 Hazardous wastes from specific

sources.

(a) * * *

Industry and

EPA hazardous

waste No.

Hazardous waste Hazard

code

*******

Paint Manufacturing

K179 ................. K179—Paint manufactuirng waste solids generated by paint (T) manufacturing facilities that, at the point of generation, contain any of the constituents identified in paragraph (b)(6)(iii) of this section at a concentration

equal to or greater than the hazardous level set for that constitutent in paragraph (b)(6)(iiiI) of this section.

Paint manufacturing waste solids are: (1) waste solids generated from tank and equipment cleaning operations that use solvents, water and or caustic; (2) emission control dusts or sludges; (3) wastewater treatment

sludges; and (4) off-specification product. Waste solids derived from the management of K180 by paint manufacturers would also be subject to this listing. Waste liquids derived from the management of K179 by paint

manufacturers are not covered by this listing, but such liquids are subject to the K180 listing. For the purposes of this listing, paint manufacturers are defined as specified in paragraph (b) of this section.

(T)

K180 ................. Paint manufacturing waste liquids generated by paint manufacturing facilities that, at the point of generation,

contain any of the constituents identified in paragraph (b)(6)(iii) of this section at a concentration equal to or

greater than the hazardous level set for that constituent in paragraph (b)(6)(iii) of this section unless the

wastes are stored or treated exclusively in tanks or containers prior to discharge to a POTW or under a

NPDES permit. Paint manufacturing liquids are generated from tank and equipment cleaning operations that

use solvents, water, and/or caustic. Waste liquids derived from the management of K179 by paint manufacturers would also be subject to this listing. Waste solids derived from the management of K180 by paint manufacturers are not covered by this listing, but such solids are subject to the K179 listing. For the purposes of

this listing, paint manufacturers are defined as specified in paragraph (b) of this section.

(T)

*******

* * * * *

(b) Procedures for paint

manufacturers to determine potential

K179 and K180 wastes to be

nonhazardous. For purposes of § 261.32

the term ‘‘paint manufacturing facility’’

means a facility that produces paints

(including undercoats, primers, finishes,

sealers, enamels, refinish paints, and

tinting bases), stains, varnishes

(including lacquers), product finishes

for original equipment manufacturing

and industrial application, and, coatings

(including special purpose coatings and

powder coatings), but the term does not

include a facility that exclusively

produces miscellaneous allied products

(including paint and varnish removers,

thinners for lacquers or other solventbased paint products, pigment

dispersions or putty) or artist paints.

The term also does not include a facility

that exclusively prepares paint products

(such as adding pigments to a tinting

base) for sale to end users of the

product. If you generate wastes that

potentially fall within the K179 or K180

listing descriptions, you must use the

waste analysis and handling procedures

described below if you want to

determine that your wastes are

nonhazardous. If you have knowledge

(e.g., knowledge of constituents in

wastes based on existing sampling and

analysis data and/or information about

raw materials used, production

processes used, and degradation

products formed) to determine that the

potential K179 or K180 wastes do not

contain any of the constituents of

concern identified for these types of

wastes (see tables under paragraph

(b)(6)(iii) of this section), you can use

this knowledge, in lieu of the annual

waste analysis requirements described

in paragraph (b)(2)(ii) of this section, to

make a nonhazardous determination.

(1) Dilution Prohibition. Prior to

making a determination, you may only

mix potential K179 wastes with other

potential K179 wastes or potential K180

wastes with other potential K180

wastes, that is paint manufacturing

wastes from tank and equipment

cleaning operations that use solvents,

water, and/or caustic; emission control

dusts or sludges; wastewater treatment

sludges and off specification product.

You must not dilute potential K179 or

K180 wastes with other waste or

material before making a determination.

(2) Determine annual waste analysis

requirements. If you generate paint

manufacturing wastes that contain one

or more constituents of concern, you

must at least on an annual basis, use the

following procedures to determine the

waste analysis requirements for your

wastes:

(i) You must either use the previous

year’s (previous 12 months) waste

generation data, or, if these data are not

available, estimate the total annual

quantities of paint manufacturing waste

solids and liquids that you will generate

over the next 12 months based on

current knowledge. You must determine

total annual quantities separately for

paint manufacturing waste solids and

liquids, including the quantities of

hazardous wastes (characteristic and

otherwise listed) and nonhazardous

wastes from tank and equipment

cleaning operations that use solvents,

water, and/or caustic; emission control

dusts or sludges; wastewater treatment

sludges and off specification product.

Then, you must record the total annual

waste quantities you expect to generate.

(ii) You must use the recorded total

annual quantities of paint

manufacturing waste solids and liquids

to determine the appropriate annual

waste analysis requirement for your

wastes in accordance with the tiered

approach described in the applicable

table below. If you initially estimate that

your waste generation would fall under

the low volume tier, and, at any time

within the 12 month period, the actual

quantities of waste you generate fall

10134 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

within the upper volume tier, from that

time, you would be subject to the upper

tier waste analysis requirements. If you

have not already tested your wastes, you

must test your wastes. A new 12 month

period to make a hazardous waste

determination for your waste also starts

when the actual quantity of your waste

exceeds the expected lower volume tier

limit.

TIERED WASTE ANALYSIS

REQUIREMENTS FOR SOLIDS

Total annual quantity

of hazardous and

nonhazardous paint

manufacturing waste

solids

Annual waste analysis requirement

40 metric tons and

less.

Test Wastes or Use

knowledge of

Wastes

Over 40 metric tons Test Wastes

TIERED WASTE ANALYSIS

REQUIREMENTS FOR LIQUIDS

Total annual quantity

of hazardous and

nonhazardous paint

manufacturing waste

liquids

Annual waste analysis requirement1

100 metric tons and

less.

Test Wastes or Use

Knowledge of

Wastes

Over 100 metric tons Test Wastes

1This requirement does not apply if the liquid wastes are stored or treated exclusively in

tanks or containers and then sent to a POTW

or discharged under a NPDES permit.

(3) Nonhazardous determination for

wastes based on testing. If the total

annual quantity of paint manufacturing

wastes your facility generates exceeds

40 metric tons for waste solids or 100

metric tons for waste liquids, you must

test the wastes according to the

following procedures:

(i) You must develop a waste

sampling and analysis plan (if there is

no appropriate existing plan) to collect

samples that are representative of the

wastes.

(ii) At a minimum, the plan must

include:

(A) A discussion on the number of

samples representative of the wastes

that are needed to fully characterize the

wastes;

(B) The sampling method used to

obtain samples representative of the

wastes;

(C) A detailed description of the test

method(s) used; and

(D) How the design of the sampling

plan accounts for potential variability of

the wastes.

(iii) You must test the wastes for each

constituent of concern that is reasonably

expected to be present in the wastes (see

paragraph (b)(3)(iii)(B) of this section).

(A) The constituents of concern and

listing concentration levels for the paint

manufacturing waste solids and liquids

are identified in paragraph (b)(6)(iii) of

this section.

(B) From the list of constituents of

concern for paint manufacturing waste

solids or liquids, you must select the

constituents of concern that are

reasonably expected to be present in

your wastes based on your knowledge of

the wastes (e.g., knowledge of the

constituents in the wastes based on

existing sampling and analysis data

and/or information about raw materials

used, and degradation products formed).

(C) You must test for all constituents

of concern that are reasonably expected

to be present in the paint manufacturing

wastes, regardless of their

concentrations in the wastes.

(iv) You must conduct sampling and

analysis in accordance with your waste

sampling and analysis plan developed

under paragraph (b)(3)(i) of this section.

(v) You may use any reliable

analytical method to demonstrate that

the concentrations of constituents of

concern in the waste samples are not at

or above the listing levels (see

applicable list under paragraph

(b)(6)(iii) of this section). It is your

responsibility to ensure that the

sampling and analysis are unbiased,

precise, and representative of the

wastes.

(vi) You must ensure that the

measurements are sufficiently sensitive,

accurate and precise to demonstrate that

the maximum concentrations of the

constituents of concern in any sample

analyzed are not at or above the listing

levels.

(vii) In an enforcement action, you, as

the generator, bear the burden of proof

to establish that the concentrations of

constituents of concern in your wastes

are below the listing levels. For wastes

determined to be nonhazardous,

compliance with the requirement that

concentrations of constituents of

concern are below the listing levels is

based on grab sampling.

(viii) If all samples you test during

any three consecutive years are

determined to be nonhazardous (see

paragraph (b)(6)(ii) of this section), then

the annual testing requirements for your

wastes are suspended.

(ix) After suspension of the annual

testing requirements for your wastes, if

your paint manufacturing, formulation,

or waste treatment processes are

significantly altered (i.e., if it could

result in significantly higher levels of

the constituents of concern for K179 or

K180), then you must resume annual

testing for your wastes. In order to again

suspend the annual testing requirements

for your wastes, the requirement under

paragraph (b)(3)(viii) of this section has

to be met.

(4) Nonhazardous determination for

wastes based on knowledge. If the total

annual quantity of paint manufacturing

wastes your facility generates is 40

metric tons or less for waste solids or

100 metric tons or less for waste liquids,

you can use knowledge of the wastes

(e.g., knowledge of constituents in

wastes based on existing sampling and

analysis data and/or information about

raw materials used, production

processes used, and degradation

products formed) to conclude that

concentrations for the constituents of

concern in the wastes are below the

listing levels.

(5) Waste holding and handling.

During the interim period, from the

point of generation to completion of

hazardous waste determination, you are

responsible for storing the wastes

properly. If the wastes are determined to

be hazardous and you are not complying

with the Subtitle C storage requirements

during the interim period, you are

subject to an enforcement action for

improper storage.

(6) Hazardous or nonhazardous

determination for wastes at the point of

generation. You must make a hazardous

or nonhazardous determination for your

wastes at the point of generation based

on the test data and/or knowledge (see

nonhazardous determination for wastes

under paragraphs (b)(3) and (b)(4) of this

section).

(i) Hazardous determination. If any of

the waste being evaluated at the point

of generation contains any of the

constituents in the applicable list under

paragraph (b)(6)(iii) of this section at a

concentration equal to or greater than

the hazardous level set for that

constituent, the waste is a listed

hazardous waste and subject to all

applicable RCRA Subtitle C hazardous

waste requirements.

(ii) Nonhazardous determination. If

none of the waste being evaluated at the

point of generation contains any of the

constituents in the applicable list under

paragraph (b)(6)(iii) of this section at

concentrations equal to or greater than

the hazardous levels set for these

constituents, the waste is determined to

be nonhazardous.

(iii) Hazardous (listing) levels. All

concentrations in the waste for any

constituents identified in this paragraph

(b)(6)(iii) that are equal to or greater

than the following levels:

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10135

CONSTITUENTS AND CONCENTRATION LEVELS OF CONCERN FOR K179, PAINT MANUFACTURING WASTE SOLIDS

Constituent Chemical abstracts No.

Concentration

levels (mg/kg)

Acrylamide ............................................................................................................................................................... 79–06–1 310

Acrylonitrile .............................................................................................................................................................. 107–13–1 43

Antimony .................................................................................................................................................................. 7440–36–0 2,300

Methyl Isobutyl Ketone ............................................................................................................................................ 108–10–1 73,000

Methyl Methacrylate ................................................................................................................................................. 80–62–6 28,000

CONSTITUENTS AND CONCENTRATION LEVELS OF CONCERN FOR K180, PAINT MANUFACTURING WASTE LIQUIDS

Constituent Chemical abstracts No.

Concentration

levels (mg/kg)

Acrylamide ............................................................................................................................................................... 79–06–1 12

Acrylonitrile .............................................................................................................................................................. 107–13–1 9.3

Antimony .................................................................................................................................................................. 7440–36–0 390

Methylene chloride ................................................................................................................................................... 75–09–2 4500

Ethylbenzene ........................................................................................................................................................... 100–41–4 11,000

Formaldehyde .......................................................................................................................................................... 50–00–0 82,000

Methyl Isobutyl Ketone ............................................................................................................................................ 108–10–1 340

Methyl Methacrylate ................................................................................................................................................. 80–62–6 2,100

N-Butyl Alcohol ........................................................................................................................................................ 100–42–5 41,000

Styrene ..................................................................................................................................................................... 100–42–5 4,600

Toluene .................................................................................................................................................................... 108–88–3 1,200

Xylene (mixed isomers) ........................................................................................................................................... 1330–20–7 3,900

(7) Hazardous or nonhazardous waste

determination for wastes after

treatment. If wastes that have been

determined to be K179 listed hazardous

waste are treated to below hazardous

levels, you, as the waste generator or

treater, may make a determination that

the residue of the treatment process is

nonhazardous by applying the

procedures described for wastes at the

point of generation, in paragraphs (b)(1)

through (b)(4) of this section, to the

treated waste. However, the residue

remains subject to the LDR treatment

standards for K179 as appropriate.

(c) Record keeping requirements for

generators who have determined their

wastes to be nonhazardous. You must

keep records documenting the total

annual quantity of paint manufacturing

waste solids and liquids you generate

from tank and equipment cleaning

operations that use solvents, water, and/

or caustic; emission control dusts or

sludges; wastewater treatment sludges

and off specification product. If your

annual generation of paint

manufacturing wastes exceeds 40 metric

tons for waste solids or 100 metric tons

for waste liquids, you must also keep

the following records on-site for the

most recent three years of testing (from

the effective date of the final rule):

(1) The documentation supporting a

determination that wastes are

nonhazardous based on knowledge that

they do not contain any of the

constituents of concern.

(2) If the wastes are determined to be

nonhazardous based on testing, then the

following records must be kept:

(i) The sampling and analysis plan

used for collecting and analyzing

samples representative of the wastes,

including detailed sampling methods

used to account for spatial and temporal

variability of the wastes, and sample

preparative, cleanup (if necessary) and

determinative methods.

(ii) The sampling and analyses data

(including QA/QC data) and knowledge

(if used) that support a nonhazardous

determination for the wastes.

(4) If storing or treating liquid paint

wastes on-site in tanks or containers

prior to off-site disposal, the

documentation showing that the liquid

paint manufacturing wastes will be

stored or treated exclusively in tanks or

containers off-site before discharge by a

facility to a POTW or discharge under

an NPDES permit.

7. Appendix VII to Part 261 is

amended by adding the following waste

streams in alphanumeric order (by the

first column) to read as follows.

Appendix VII to Part 261—Basis for

Listing Hazardous Waste

EPA hazardous waste

No.

Hazardous Constituents for which listed

*******

K179 .............. Acrylamide, Acrylonitrile, Antimony, Methyl Isobutyl Ketone, Methyl methacrylate

K180 .............. Acrylamide, Acrylonitrile, Antimony, Methylene Chloride, Ethylbenzene, Formaldehyde, Methyl Isobutyl Ketone, Methyl Methacrylate, N-Butyl Alcohol, Styrene, Toluene, Xylene (mixed isomers)

*******

* * * * *

10136 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

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

Appendix VIII to Part 261—Hazardous Constituents

Common name Chemical abstracts name

Chemical

abstracts

No.

Hazardous

waste No.

*******

n-Butyl alcohol ................................................................... 1-Butanol .......................................................................... 71–36–3 U031

*******

Ethyl benzene .................................................................... Same ................................................................................ 100–41–4 ....................

*******

Methyl isobutyl ketone ....................................................... 4-Methyl-2-pentanone ...................................................... 108–10–1 U161

*******

Styrene .............................................................................. Ethenylbenzene ............................................................... 100–42–5 ....................

*******

meta-Xylene ...................................................................... 1,3-Dimethylbenzene ....................................................... 108–38–3 ....................

ortho-Xylene ...................................................................... 1,2-Dimethylbenzene ....................................................... 95–47–6 ....................

para-Xylene ....................................................................... 1,4-Dimethylbenzene ....................................................... 106–42–3 ....................

Xylenes—mixed isomers (sum of o-, m-, and p-xylene

concentrations).

Dimethylbenzene ............................................................. 1330–20–7 U239

*******

* * * * *

PART 268—LAND DISPOSAL

RESTRICTIONS

9. The authority citation for part 268

continues to read as follows:

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

and 6924.

Subpart C—Prohibitions on Land

Disposal

10. Section 268.20 is added and

§§ 268.21 through 268.29 are added and

reserved to subpart C to read as follows:

§ 268.20 Waste specific prohibitions—

paint production wastes.

(a) Effective [Insert date six months

from date of publication of final rule],

the wastes specified in 40 CFR part 261

as EPA Hazardous Wastes Numbers

K179, and K180, soil and debris

contaminated with these wastes,

radioactive wastes mixed with these

wastes, and soil and debris

contaminated with radioactive wastes

mixed with these wastes are prohibited

from land disposal.

(b) The requirements of paragraph (a)

of this section do not apply if:

(1) The wastes meet the applicable

treatment standards specified in Subpart

D of this part;

(2) Persons have been granted an

exemption from a prohibition pursuant

to a petition under § 268.6, with respect

to those wastes and units covered by the

petition;

(3) The wastes meet the applicable

treatment standards established

pursuant to a petition granted under

§ 268.44;

(4) Hazardous debris has met the

treatment standards in § 268.40 or the

alternative treatment standards in

§ 268.45; or

(5) Persons have been granted an

extension to the effective date of a

prohibition pursuant to § 268.5, with

respect to these wastes covered by the

extension.

(c) To determine whether a hazardous

waste identified in this section exceeds

the applicable treatment standards

specified in § 268.40, the initial

generator must test a sample of the

waste extract or the entire waste,

depending on whether the treatment

standards are expressed as

concentrations in the waste extract or

the waste, or the generator may use

knowledge of the waste. If the waste

contains regulated constituents in

excess of the applicable subpart D

levels, the waste is prohibited from land

disposal, and all requirements of this

part 268 are applicable, except as

otherwise specified.

11. In § 268.40, the Table of Treatment

Standards is amended by adding entries

to F039 in alphabetical order and by

adding in alphanumeric order new

entries for K179 and K180 to read as

follows:

§ 268.40 Applicability of treatment

standards.

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10137

TREATMENT STANDARDS FOR HAZARDOUS WASTES

[Note: NA means not applicable]

Waste

code

Waste description and treatment/regulatory subcategory 1

Regulated hazardous constituent Wastewaters Nonwastewaters

Common name CAS 2 No. Concentration in mg/L3, or

Technology Code 4

Concentration in

mg/kg 5 unless

noted as ‘‘mg/L

TCLP’’, or Technology Code 4

*******

F039 Leachate (liquids that have percolated through

land disposed wastes) resulting from the disposal of more than one restricted waste classified as hazardous under Subpart D of this part.

(Leachate resulting from the disposal of one or

more of the following EPA Hazardous Wastes

and no other Hazardous Waste retains its EPA

Hazardous Waste Number(s): F020, F021, F022,

F026, F027, and/or F028.)

*******

Acrylamide

*******

Styrene

*******

79–06–1

100–42–5

19

0.028

23

28

*******

K179 Paint manufacturing waste solids generated by

paint manufacturing facilities that, at the point

of generation, contain any of the constituents

identified in paragraph § 261.32 (b)(6)(iii) at a

concentration equal to or greater than the hazardous level set for that constituent in paragraph § 261.32(b)(6)(iii). Paint manufacturing

waste solids are: (1) waste solids generated

from tank and equipment cleaning operations

that use solvents, water and or caustic; (2)

emission control dusts or sludges; (3) wastewater treatment sludges; and (4) off-specification product. Waste solids derived from the

management of K180 by paint manufacturers

would also be subject to this listing. Waste liquids derived from the management of K179 by

paint manufacturers are not covered by this

listing, but such liquids are subject to the K180

listing. For the purposes of this listing, paint

manufacturers are defined as specified in paragraph § 261.32(b)

Acrylamide

Acrylonitrile

Methyl isobutyl ketone

Methyl methacrylate

Antimony

79–06–1

107–13–1

108–10–1

80–62–6

7440–36–0

19

0.24

0.14

0.14

1.9

23

84

33

160

1.15 mg/L 0 TCLP

K180 Paint manufacturing waste liquids generated by

paint manufacturing facilities that, at the point

of generation, contain any of the constituents

identified in paragraph § 261.32(b)(6)(iii) at a

concentration equal to or greater than the hazardous level set for that constituent in paragraph § 261.32 (b)(6)(iii) unless the wastes are

stored or treated exclusively in tanks or containers prior to discharge to a POTW or under

a NPDES permit. Paint manufacturing liquids

are generated from tank and equipment cleaning operations that use solvents, water, and/or

caustic. Waste liquids derived from the management of K179 by paint manufacturers

would also be subject to this listing. Waste solids derived from the management of K180 by

paint manufacturers are not covered by this

listing, but such solids are subject to the K179

listing. For the purposes of this listing, paint

manufacturers are defined as specified in paragraph § 261.32(b)

Acrylamide

Acrylonitrile

n-Butyl alcohol

Ethyl benzene

Formaldehyde 13

Methylene chloride

Methyl isobutyl ketone

Methyl methacrylate

Styrene

Toluene

Xylenes—mixed isomers

(sum of o-, m-, and p-xylene concentrations)

Antimony

79–06–1

107–13–1

71–36–3

100–41–4

50–00–0

75–09–2

108–10–1

80–62–6

100–42–5

108–88–3

1330–20–7

7440–36–0

19

0.24

536

0.057

(WETOX or CHOXD) fb

CARBN; or CMBST

0.089

0.14

0.14

0.028

0.080

0.32

1.9

23

84

2.6

10

CMBST

30

33

160

28

10

30

1.15 mg/L 0 TCLP

***** **

*****

Footnotes to Treatment Standard Table 268.40.

1The waste descriptions provided in this table do not replace waste descriptions in 40 CFR Part 261. Descriptions of Treatment/Regulatory Subcategories are

provided, as needed, to distinguish between applicability of different standards. 2CAS means Chemical Abstract Services. When the waste code and/or regulated constituents are described as a combination of a chemical with its salts and/

or esters, the CAS number is given for the parent compound only. 3Concentration standards for wastewaters are expressed in mg/L and are based on analysis of composite samples.

4All treatment standards expressed as a Technology Code or combination of Technology Codes are explained in detail in 40 CFR 268.42 Table 1—Technology Codes and Descriptions of Technology-Based Standards. 5Except for Metals (EP or TCLP) and Cyanides (Total and Amenable) the nonwastewater treatment standards expressed as a concentration were established,

in part, based upon incineration in units operated in accordance with the technical requirements technical requirements of 40 CFR part 264, subpart O or 40

CFR part 265, subpart O, or based upon combustion in fuel substitution units operating in accordance with applicable technical requirements. A facility may

comply with these treatment standards according to provisions in 40 CFR 268.40(d). All concentration standards for nonwastewaters are based on analysis of

grab samples.

*****

13Wastes that do not exceed the § 261.32 listing criteria for this constituent are not subject to the treatment technology requirements, but are subject to all

other numerical standards.

*****

10138 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

12. In § 268.48 The Table—Universal

Treatment Standards is amended by

adding in alphabetical sequence the

following entries under the headings

‘‘organic constituents’’: (The footnotes

are republished without change.)

§ 268.48 Universal treatment standards.

(a) * * *

UNIVERSAL TREATMENT STANDARDS

[Note: NA means not applicable]

Regulated constituent common name CAS1 No.

Wastewater

standard

Nonwastewater

standard

Concentration in

mg/L 2

Concentration in

mg/Kg 3 unless

noted in ‘‘mg/L

TCLP’’

Organic Constituents:

*******

Styrene ..................................................................................................................................... 100–42–5 0.028 28

*******

*******

1 CAS means Chemical Abstract Services. When the waste code and/or regulated constituents are described as a combination of a chemical

with its salts and/or esters, the CAS number is given for the parent compound only. 2 Concentration standards for wastewaters are expressed in mg/L and are based on analysis of composite samples.

3Except for Metals (EP or TCLP) and Cyanides (Total and Amenable) the nonwastewater treatment standards expressed as a concentration

were established, in part, based upon incineration in units operated in accordance with the technical requirements of 40 CFR Part 264, Subpart

O, or Part 265, Subpart O, or based upon combustion in fuel substitution units operating in accordance with applicable technical requirements. A

facility may comply with these treatment standards according to provisions in 40 CFR 268.40(d). All concentration standards for nonwastewaters

are based on analysis of grab samples.

*******

PART 271—REQUIREMENTS FOR

AUTHORIZATION OF STATE

HAZARDOUS WASTE PROGRAMS

13. The authority citation for Part 271

continues to read as follows:

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

6926.

Subpart A—Requirements for Final

Authorization

14. Section 271.1(j) is amended by

adding the following entries to Table 1

in chronological order by date of

publication in the Federal Register, and

by adding the following entries to Table

2 in chronological order by effective

date in the Federal Register, to read as

follows.

§ 271.1 Purpose and scope.

* * * * *

(j) * * *

TABLE 1.—REGULATIONS IMPLEMENTING THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984

Promulgation date Title of regulation Federal Register reference Effective date

*******

[insert date of signature of final

rule].

Paint Manufacturing Listing .......... [insert Federal Register page

numbers for final rule].

[insert effective date of final rule]

*******

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

Effective date Self-implementing provision RCRA citation Federal Register reference

*******

[Insert effective date of final rule] ... Prohibition on land disposal of

K179 and K180 wastes.

3004(g)(4)(C) and 3004(m). ......... [Insert date of publication of final

rule], [Insert FR page numbers].

*******

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules 10139

PART 302—DESIGNATION,

REPORTABLE QUANTITIES, AND

NOTIFICATION

15. The authority citation for Part 302

continues to read as follows:

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

33 U.S.C. 1321 and 1361.

16. In § 302.4, Table 302.4 is amended

by adding the following new entries in

alphanumeric order at the end of the

table, to read as follows. (The

appropriate footnotes to Table 302.4 are

republished without change.)

§ 302.4 Designation of hazardous

substances.

* * * * *

10140 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Proposed Rules

TABLE 302.4.—LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE QUANTITIES

[Note: All Comments/Notes Are Located at the End of This Table]

Hazardous Substance CASRN Regulatory

synonyms

Statutory Final RQ

RQ Code † RCRA

waste No. Category Pounds(Kg)

*******

K179 ................................................................ .................... .................... 1* 4 K179 X 100

(45.4)

Paint manufacturing waste solids generated

by paint manufacturing facilities that, at the

point of generation, contain any of the constituents identified in paragraph § 261.32

(b)(6)(iii) at a concentration equal to or

greater than the hazardous level set for

that constituent in paragraph

§ 261.32(b)(6)(iii). Paint manufacturing

waste solids are: (1) Waste solids generated from tank and equipment cleaning

operations that use solvents, water and or

caustic; (2) emission control dusts or

sludges; (3) wastewater treatment sludges;

and (4) off-specification product. Waste

solids derived from the management of

K180 by paint manufacturers would also be

subject to this listing. Waste solids derived

from the management of K179 by paint

manufacturers are not covered by this listing, but such solids are subject to the K180

listing. For the purposes of this listing,

paint manufacturers are defined as specified in paragraph § 261.32(b).

K180 ................................................................ .................... .................... 1* 4 K180 X 100

(45.4)

Paint manufacturing waste solids generated

by paint manufacturing facilities that, at the

point of generation, contain any of the constituents identified in paragraph

§ 261.32(b)(6)(iii) at a concentration equal

to or greater than the hazardous level set

for that constituent in paragraph

§ 261.32(b)(6)(iii) unless the wastes are

stored or treated exclusively in tanks or

containers prior to discharge to a POTW or

under a NPDES permit. Paint manufacturing liquids are generated from tank and

equipment cleaning operations that use

solvents, water, and/or caustic. Waste liquids derived from the management of K179

by paint manufacturers would also be subject to this listing. Waste liquids derived

from the management of K180 by paint

manufacturers are not covered by this listing, but such liquids are subject to the

K179 listing. For the purposes of this listing, paint manufacturers are defined as

specified in paragraph § 261.32(b).

* * * * * **

† Indicates the statutory source as defined by 1, 2, 3, and 4 below.

*******

4—Indicates that the statutory source for designation of this hazardous substance under CERCLA is RCRA Section 3001.

1* Indicates that the 1-pound RQ is a CERCLA statutory RQ.

*******

[FR Doc. 01–3087 Filed 2–12–01; 8:45 am]

BILLING CODE 6560–50–U