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ENVIRONMENTAL PROTECTION AGENCY

Treasury Department

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

RIN ID: RIN 2050-AD80

RCR ID: [RCRA-2003-0001; SWH-FRL-7587-6]

NOTICE: Part II

DOCUMENT ACTION: Proposed rule.

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

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

DOCUMENT SUMMARY: The Environmental Protection Agency (EPA) is proposing to list nonwastewaters from the production of certain dyes, pigments, and FD&C colorants as hazardous wastes under the Resource Conservation and Recovery Act (RCRA), which directs EPA to determine whether these wastes present a hazard to human health or the environment. EPA is proposing a mass loadingbased approach for these wastes. Under this approach, these wastes are hazardous if they contain any of the constituents of concern at annual mass loading levels that meet or exceed regulatory levels. If generators determine that their wastes are below regulatory levels for all constituents of concern, then their wastes are nonhazardous. If their wastes meet or exceed the regulatory levels for any of eight specific constituents of concern, the wastes must be managed as listed hazardous wastes. However, even if the wastes meet or exceed the regulatory levels, the wastes would not be hazardous if two conditions are met: The wastes do not meet or exceed annual mass loadings for toluene2,4diamine, and the wastes are disposed in a Subtitle D landfill cell subject to the municipal solid waste landfill design criteria or in a Subtitle C landfill cell subject to applicable design criteria. When mass loadings meet or exceed the specified annual levels, the generator may still manage as nonhazardous all wastes generated up to the loading limit.

This proposal would also add the toxic constituents oanisidine, p cresidine, 1,2phenylenediamine, 1,3phenylenediamine, and 2,4 dimethylaniline associated with these identified wastes to the list of constituents that serves as the basis for classifying wastes as hazardous. In addition, this proposal would establish treatment standards for the wastes.

If these dyes and/or pigments production wastes are listed as hazardous waste, then they will be subject to stringent management and treatment standards under Subtitle C of RCRA.

Additionally, this action proposes to designate these wastes as hazardous substances subject to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The proposal would not adjust the one pound statutory reportable quantity (RQ) for K181 waste, nor would EPA develop a ``reference RQ'' for the new constituents identified for K181.

Other actions proposed in this notice would add oanisidine, p cresidine, 1,3phenylenediamine, toluene2,4diamine, and 2,4
dimethylaniline to the treatment standards applicable to multisource leachate and also to add these chemicals to the Universal Treatment Standards. As a result, a single waste code would continue to be applicable to multisource landfill leachates and residues of characteristic wastes would require treatment when any of these chemicals are present above the proposed land disposal treatment standards.

SUMMARY: Environmental Protection Agency,

SUPPLEMENTAL INFORMATION

Who Potentially Will Be Affected by This Proposed Rule?

If promulgated as proposed, this regulation could directly impact businesses that generate and manage certain organic dyes and/or pigments production wastes. In addition, manufacturers that do not make dyes or pigments, but that generate wastes containing selected constituents of concern, may be indirectly impacted. This is because we are adding new treatment standards for eight chemicals, and we are adding five new constituents to the list of hazardous constituents on appendix VIII of part 261. Thus, these actions may result in indirect impacts on these manufacturers. In addition, landfill owners/operators who previously accepted these wastes may be indirectly impacted. This action may also affect entities that need to respond
[[Page 66165]]
to releases of these wastes as CERCLA hazardous substances. Impacts on potentially affected entities, direct and indirect, are summarized in section IX of this Preamble. The economics background document, ``Economic Assessment for the Proposed LoadingsBased Listing of Non Wastewaters from the Production of Selected Organic Dyes, Pigments, and Food, Drug, and Cosmetic Colorants,'' presents a comprehensive analysis of all potentially impacted entities. This document is available in the docket established in support of today's proposed rule. A summary of potentially affected businesses is provided in the table below.

Our aim in the table below is to provide a guide for readers regarding entities likely to be directly regulated, or indirectly affected by this action. This action, however, may affect other entities not listed in the table. To determine whether your facility is regulated or affected by this action, you should examine 40 CFR parts 260 and 261 carefully, along with the proposed regulatory language amending RCRA. This language is found at the end of this Federal Register notice. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding section entitled FOR FURTHER INFORMATION CONTACT. Summary of Facilities Potentially Affected by EPA's 2003 Dyes and/or Pigments Production Waste Listing Proposal SIC code NAICS code Industry sector name Estimated number of relevant facilities * Directly Impacted 2865.................................. 3251321................ Synthetic Organic Dyes.. 37
3251324................ Synthetic Organic ............................................................ Pigments, Lakes, and Toners. Indirectly Impacted 2800.................................. 325..................... Chemical Manufacturing.. Less than 50 facilities total ** (except 2865)......................... (except 325132)......... 4953.................................. 562212.................. Solid Waste Landfills ............................................................ and disposal sites, nonhazardous. 5169.................................. 42269................... Other Chemicals and ............................................................ Allied Products (wholesale). SICStandard Industrial Classification.
NAICSNorth American Industrial Classification System.
* Note: The figures in this column represent individual facilities, not companies. ** Estimate based on 13 expanded scope facilities plus no more than 37 separate solid waste landfills (562212) potentially receiving wastes of concern. How Can I Get Copies of This Document and Other Related Information?

1. Docket. EPA has established an official public docket for this action under Docket ID No. RCRA20030001. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. The docket for this proposed rulemaking currently contains no Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. If EPA receives such information in comments or finds that it must use such information, it will place it in the official docket, but will not make it available to the public. The official public docket is the collection of materials that is available for public viewing at the OSWER Docket in the EPA Docket Center (EPA/DC), EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 5661744, and the telephone number for the OSWER Docket is (202) 566 0270.

2. Electronic Access. You may access this Federal Register document electronically through the EPA Internet under the ``Federal Register'' listings at http:// http://www.regulations.gov.

An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Once in the system, select ``search,'' then key in the appropriate docket identification number.

Certain types of information will not be placed in the EPA Docket. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the RCRA Docket facility. EPA intends to work toward providing electronic access to all of the publicly available docket materials through EPA's electronic public docket.

For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, [[Page 66166]]
will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.

Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the Docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.

For additional information about EPA's electronic public docket visit EPA Dockets online or see 67 FR 38102, May 31, 2002.

How and to Whom Do I Submit Comments?

You may submit comments electronically, by mail, by facsimile, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked ``late.'' EPA is not required to consider these late comments. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions provided later in this section. Do not use EPA Dockets or email to submit CBI or information protected by statute.

1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an email address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD ROM you submit, and in any cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

i. EPA Dockets. Your use of EPA's electronic public docket to submit comments to EPA electronically is EPA's preferred method for receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket , and follow the online instructions for submitting comments. To access EPA's electronic public docket from the EPA Internet Home Page, select ``Information Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once in the system, select ``search,'' and then key in Docket ID No. RCRA 20030001. The system is an ``anonymous access'' system, which means EPA will not know your identity, email address, or other contact information unless you provide it in the body of your comment.

ii. Email. Comments may be sent by electronic mail (email) to rcradocket@epa.gov, Attention Docket ID No. RCRA20030001. In contrast to EPA's electronic public docket, EPA's email system is not an ``anonymous access'' system. If you send an email comment directly to the Docket without going through EPA's electronic public docket, EPA's email system automatically captures your email address. Email addresses that are automatically captured by EPA's email system are included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket.

iii. Disk or CD ROM. You may submit comments on a disk or CD ROM that you mail to the mailing address identified below. These electronic submissions will be accepted in WordPerfect or ASCII file format. Avoid the use of special characters and any form of encryption.

2. By Mail. Send your comments to: OSWER Docket, Environmental Protection Agency, Mailcode: 5305T, 1200 Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No. RCRA20030001.

3. By Hand Delivery or Courier. Deliver your comments to: EPA Docket Center, Public Reading Room, Room B102, EPA West Building, 1301 Constitution Avenue, NW., Washington, DC 20004, Attention Docket ID No. RCRA20030001. Such deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays).

4. By Facsimile. Fax your comments to: (202) 5660272, Attention Docket ID. No. RCRA20030001.

How Should I Submit CBI to the Agency?

Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by email. Send or deliver information identified as CBI only to the following address: RCRA CBI Document Control Officer, Office of Solid Waste (5305W), U.S. EPA, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, Attention Docket ID No. RCRA20030001. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the FOR FURTHER INFORMATION CONTACT section. What Should I Consider as I Prepare My Comments for EPA?

You may find the following suggestions helpful for preparing your comments:

1. Explain your views as clearly as possible.

2. Describe any assumptions that you used.

3. Provide any technical information and/or data you used that support your views.

4. If you estimate potential burden or costs, explain how you arrived at your estimate.

5. Provide specific examples to illustrate your concerns. [[Page 66167]]

6. Offer alternatives.

7. Make sure to submit your comments by the comment period deadline identified.

8. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and Federal Register citation related to your comments.

Readable Regulations

Today's proposed hazardous waste listing determination (or ``listing determination'') preamble and regulations are written in ``readable regulations'' format. The authors tried to use active rather than passive voice, plain language, a questionandanswer format, the pronouns ``we'' for EPA and ``you'' for the owner/generator, as well as other techniques, including an acronym list (see below), to make the information in today's proposed rule easier to read and understand. This format is part of our efforts toward regulatory reinvention. We believe that this format will help readers understand the regulations and foster better relationships between EPA and the regulated community.
Acronyms
Acronym Definition AOC............................... Areas of Concern
AWQC.............................. Ambient Water Quality Criteria BDAT.............................. Best Demonstrated Available Technology
BHP............................... Biodegradation, hydrolysis and photolysis
BRS............................... Biennial Reporting System CAA............................... Clean Air Act
CalEPA............................ California Environmental Protection Agency
CARBN............................. Carbon Absorption
CAS............................... Chemical Abstract Services CBI............................... Confidential Business Information CCL............................... Compacted Clay Liner
CERCLA............................ Comprehensive Environmental Response Compensation and Liability Act CERCLIS........................... Comprehensive Environmental Response Compensation and Liability Information System
CFR............................... Code of Federal Regulations CHOXD............................. Chemical or Electrolytic Oxidation CL................................ Clay Lined
CMBST............................. Combustion
CMS............................... Corrective Measures Study CoC............................... Constituent of Concern
CPMA.............................. Color Pigments Manufacturers Association
CSF............................... Cancer Slope Factor
CWA............................... Clean Water Act
CWT............................... Centralized Wastewater Treatment Facility (may also be referred to as a wastewater treatment facility, or WWTF)
ED................................ Environmental Defense (previously the Environmental Defense Fund or EDF)
EO................................ Executive Order
EP................................ Extraction Procedure
EPA............................... Environmental Protection Agency EPACMTP........................... EPA's Composite Model for Leachate Migration with Transformation Products
EPCRA............................. Emergency Planning and Community RightToKnow Act
ETAD.............................. Ecological and Toxicological Association of Dyes and Organic Pigments Manufacturers EU................................ European Union
FB................................ Followed By
FDA............................... Food and Drug Administration FD&C.............................. Food, Drug and Cosmetic FR................................ Federal Register
GC/MS............................. Gas Chromatography/Mass Spectroscopy GCL............................... Geosynthetic Clay Liner GM................................ Geomembrane
GRAS.............................. Generally Recognized as Safe HAP............................... Hazardous Air Pollutant HDPE.............................. High Density Polyethylene HEAST............................. Health Effects Assessment Summary Table
HELP.............................. Hydrologic Evaluation of Landfill Performance
HPLC/MS or UV..................... High Performance Liquid Chromatography/Mass Spectroscopy or Ultraviolet Light
HPV............................... High Production Volume
HQ................................ Hazard Quotient
HSWA.............................. Hazardous and Solid Waste Amendments IACM.............................. International Association of Color Manufacturers
ICR............................... Information Collection Request IRIS.............................. Integrated Risk Information System IWAIR............................. Industrial Waste Air
KG................................ Kilogram
LDR............................... Land Disposal Restriction MACT.............................. Maximum Achievable Control Technology
mg/kg............................. Milligram per kilogram
mg/L.............................. Milligram per liter
MINTEQ............................ MINTEQ (model for geochemical equilibria in ground water) MSDS.............................. Material Safety Data Sheet [[Page 66168]]
MSWLF............................. Municipal Solid Waste Landfill MT................................ Metric Ton
NAICS............................. North American Industrial Classification System
NAPL.............................. NonAqueous Phase Liquid NCV............................... National Capacity Variance NESHAP............................ National Emission Standards for Hazardous Air Pollutants NL................................ No Liner
NPDES............................. National Pollutant Discharge Elimination System
NPL............................... National Priority List
NRC............................... National Response Center NSPS.............................. New Source Protection Standard NTTAA............................. National Technology Transfer and Advancement Act
OCPSF............................. Organic Chemicals, Plastics, and Synthetic Fibers
OMB............................... Office of Management and Budget OSW............................... Office of Solid Waste
OSWER............................. Office of Solid Waste and Emergency Response
POTW.............................. Publicly Owned Treatment Works ppb............................... Parts Per Billion
ppm............................... Parts Per Million
PRA............................... Paperwork Reduction Act QA................................ Quality Assurance
QC................................ Quality Control
RCRA.............................. Resource Conservation and Recovery Act
RFA............................... Regulatory Flexibility Act RfC............................... Reference Concentration RfD............................... Reference Dose
RFI............................... RCRA Facility Investigation RFSA.............................. Regulatory Flexibility Screening Analysis
RODS.............................. Record of Decision System RQ................................ Reportable Quantity
SBA............................... Small Business Administration SBREFA............................ Small Business Regulatory Enforcement Fairness Act SIC............................... Standard Industry Code
SL................................ Synthetic Liner
SOCMI............................. Synthetic Organic Chemical Manufacturing Industry SOP............................... Standard Operating Procedure SRI............................... Stanford Research Institute SW846............................ Test Methods for Evaluating Solid Wastes
SWMU.............................. Solid Waste Management Unit TCLP.............................. Toxicity Characteristic Leaching Procedure
TRI............................... Toxic Release Inventory TSCA.............................. Toxic Substances Control Act TSDF.............................. Treatment, Storage and Disposal Facility
TSS............................... Total Suspended Solids
UMRA.............................. Unfunded Mandates Reform Act USC............................... United States Code
UTS............................... Universal Treatment Standard VOC............................... Volatile Organic Compound WETOX............................. Wet Air Oxidation
WMU............................... Waste Management Unit
WWT............................... Wastewater Treatment
Contents of This Proposed Rule
I. Overview

A. What Impact May This Proposed Rule Have?

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

A. How Does EPA Define a Hazardous Waste?

B. How Does EPA Regulate RCRA Hazardous Wastes?

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

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

1. Previous Proposals

2. Consent Decree Schedule for This Proposal

3. Effect on Proposals of Legal Actions Pertaining to Confidential Business Information

E. Existing Regulations That Apply to This Industry

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

1. Scope of Industry Classifications

2. Scope of Waste Classifications

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

H. What Publicly Available Information Did EPA Collect and Use? III. Approach Used in This Proposed Listing

A. Summary of Today's Action

B. Why Is a Mass LoadingsBased Approach Being Used for This Listing?

C. What Wastes Are Generated by This Industry?

D. How Are These Wastes Currently Managed?

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

1. Plausible Waste Management Selection Criteria and Modeling Considerations

2. Selection of Waste Management Scenarios for Risk Assessment Modeling of Dyes and/or Pigments Nonwastewaters

3. Selection of Waste Management Scenarios for Risk Assessment Modeling
[[Page 66169]]

of Dyes and/or Pigments Production Wastewaters

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

G. Overview of the Risk Assessment

1. How Did EPA Chose Potential Constituents of Concern?

2. What Was EPA's Approach to Conducting Human Health Risk Assessment?

3. What Was EPA's Approach to Conducting the Ecological Risk Assessment?

4. What Is the Uncertainty in the Risk Results?

5. How Did EPA Use Damage Case Information?

IV. Proposed Listing Determinations

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

1. Landfill Scenarios Underlying Listing Loading Limits

2. Conditional Exemption for Certain Landfilled Wastes

3. Selecting K181 Constituents and Mass Loading Limits

4. Assessment of Biodegradation

5. Lead as a Potential K181 Constituent

6. Waste Analysis Concerns

7. Proposed Additions to Appendices VII and VIII of Part 261

8. CoGeneration With OutofScope Wastes

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

1. What Is the Status of Wastes That Are Not Landfilled?

2. What Is the Status of Wastes Destined for Combustion That Trigger the K181 Listing Levels?

3. Applicability to Wastes That Are Already Hazardous

C. Why Are We Proposing Not To List Wastewaters?

1. Air Emissions From Tanks and Surface Impoundments

2. Groundwater Releases From Surface Impoundments

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

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

V. Proposed Requirements for K181 Determinations

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

1. Categorical Determination

2. No K181 Constituents of Concern

3. Low Quantity Versus High Quantity Wastes With K181 Constituents

4. Section (d)(2) Demonstrations for Waste Quantities Less Than 1,000 MT/yr

5. Section (d)(3) Demonstrations for Waste Quantities Greater Than 1,000 MT/yr

6. EPA and State Oversight

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

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

D. Implementation Examples

E. What Are the Consequences of Failing To Meet Recordkeeping Requirements or Listing Conditions?
VI. Proposed Treatment Standards Under RCRA's Land Disposal Restrictions

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

B. How Does EPA Develop LDR Treatment Standards?

C. What Treatment Standards Are We Proposing?

D. What Changes to Existing Treatment Requirements Are Proposed?

E. Other LDRRelated Provisions

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

1. What Is a Capacity Determination?

2. What Are the Capacity Analysis Results?
VII. State Authority and Compliance

A. How Are States Authorized Under RCRA?

B. How Would This Rule Affect State Authorization?

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

D. What Would Generators and Transporters Have to Do?

E. Which Facilities Would Be Subject to Permitting?

1. Facilities Newly Subject to RCRA Permit Requirements

2. Existing Interim Status Facilities

3. Permitted Facilities

4. Units

5. Closure

VIII. CERCLA Designation and Reportable Quantities

A. What Is the Relationship Between RCRA and CERCLA?

B. How Does EPA Determine Reportable Quantities?

C. EPA Will Assign An RQ of OnePound for The Waste

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

E. How Would I Report a Release?

F. What Is the Statutory Authority for This Program?

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

IX. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

1. Background

2. Need for the Proposed Rule

3. Consideration of NonRegulatory Alternatives

4. Evaluation of Regulatory Options

5. Assessment of Costs, Economic Impacts, and Benefits

B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

E. Executive Order 13132: Federalism

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

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

H. Executive Order 12898: Environmental Justice

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

J. National Technology Transfer and Advancement Act I. Overview

A. What Impact May This Proposed Rule Have?

We are proposing to list nonwastewaters from the production of certain dyes and/or pigments as hazardous wastes under Subtitle C of RCRA. If you are a dye, pigment or FD&C colorant manufacturer and you generate nonwastewaters described in this proposed rule, then you would need to determine if your wastes meet the new hazardous waste code, K181, if finalized. Your waste would become a listed hazardous waste if it contains annual mass loadings (kilograms/year, abbreviated as kg/yr) of any of the K181 constituents of concern at a level equal to or greater than the hazardous loading identified for that constituent (see Table IV1), unless you meet both of the following conditions: (1) Your wastes do not contain annual mass loadings of the constituent for which we are proposing a second, higher tier listing limit (see Table IV2), and (2) you manage your wastes in a Subtitle D landfill cell subject to the design criteria in Sec. 258.40 or in a Subtitle C landfill cell subject to Sec. 264.301 or Sec. 265.301. When mass loadings meet or exceed the specified annual levels, you may still manage as nonhazardous all wastes generated up to the loading limit. If you determine that your nonwastewaters are hazardous under this listing, then the wastes must be stored, treated and disposed in a manner consistent with the RCRA Subtitle C hazardous waste regulations at 40 CFR parts 260272. If you were not previously a hazardous waste generator, and you determine that you generate this newlylisted hazardous waste, then you must notify the EPA or your authorized state, according to section 3010 of RCRA, that you generate hazardous waste.

If you believe that your wastes do not exceed the K181 listing levels, or that you meet the conditions for exclusion from the listing, you can document your findings on an annual basis, and manage your wastes as nonhazardous. If your annual generation of nonwastewaters potentially subject to the K181 listing exceeds 1,000 metric tons and you wish to demonstrate that your wastes do not exceed the K181 listing levels, you must conduct sampling and analysis of the affected wastes, calculate the constituentspecific massloadings, and keep certain records of these wastes onsite. On the other hand, if your annual generation of nonwastewaters potentially subject to the K181 listing is [[Page 66170]]
less than 1,000 metric tons and you wish to demonstrated that your wastes do not exceed the K181 listing levels, you can use your knowledge of your wastes to calculate your wastes' mass loadings. Following the initial determination that your wastes are nonhazardous under this listing, you would have a continuing obligation to make such a determination at least on an annual basis. After three consecutive annual demonstrations that your wastes are not subject to K181, you would be able to make subsequent determinations based on your knowledge of the wastes, rather than by conducing waste analysis.

We are proposing not to list wastewaters from the production of dyes and/or pigments.

Section II provides background on the Listing Program, past proposed listing determinations for these wastes, relevant litigation, the scope of this effort, an overview of this industry and the general types of data that we used. Section III describes our approach to conducting this listing determination. Section IV presents our basis for concluding that nonwastewaters should be listed as K181 and that wastewaters do not warrant listing. Section V describes the proposed process for demonstrating that your wastes are not K181.
B. What Are the Statutory Authorities for This Proposed Rule?

Except as specified below, these regulations are being proposed under the authority of sections 2002(a), 3001(b), 3001(e)(2), 3004(d) (m), and 3007(a) of the Solid Waste Disposal Act, 42 U.S.C. 6912(a), 6921(b) and (e)(2), 6924(d)(m), and 6927(a), as amended, most importantly by the Hazardous and Solid Waste Amendments of 1984 (HSWA). These statutes commonly are referred to as the Resource Conservation and Recovery Act (RCRA), and are codified at Volume 42 of the United States Code (U.S.C.), sections 6901 to 6992(k) (42 U.S.C. 6901 6992(k)).

Section 102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. 9602(a) is the authority under which EPA is proposing amendments to 40 CFR part 302.
II. Background

A. How Does EPA Define a Hazardous Waste?

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

EPA may also conduct a more specific assessment of a waste or category of wastes and ``list'' them if they meet criteria set out in 40 CFR 261.11. As described in Sec. 261.11, we may list a waste as hazardous if it:
Exhibits any of the characteristics noted above, i.e., ignitability, corrosivity, reactivity, or toxicity (Sec. 261.11(a)(1));
Is ``acutely'' hazardous, i.e., if it is fatal to humans at low doses, or in the absence of human data, it has been shown in animal studies to meet certain criteria, or otherwise capable of causing or significantly contributing to an increase in serious illness (Sec. 261.11(a)(2)); or
Is capable of posing a substantial present or potential hazard to human health or the environment when improperly managed (Sec. 261.11(a)(3)).

Under the third criterion, at 40 CFR 261.11(a)(3), we may decide to list a waste as hazardous if it contains hazardous constituents identified in 40 CFR part 261, appendix VIII, and if, after considering the factors noted in this section of the regulations, we ``conclude that the waste is capable of posing a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.'' We place a chemical on the list of hazardous constituents on Appendix VIII only if scientific studies have shown a chemical has toxic effects on humans or other life forms. When listing a waste, we also add the hazardous constituents that serve as the basis for listing the waste to 40 CFR part 261, appendix VII.

The regulations at 40 CFR 261.31 through 261.33 contain the various hazardous wastes the Agency has listed to date. Section 261.31 lists wastes generated from nonspecific sources, known as ``Fwastes,'' 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 ``Uwastes,'' that become hazardous wastes when they are discarded or intended to be discarded.

Today's proposed regulations would list certain dyes and/or pigments production wastes as a Kwaste code under Sec. 261.32. We are also proposing to add constituents that serve as the basis for the proposed listings to appendix VII of part 261, as well as to add certain constituents to appendix VIII of part 261 that are not already included.

``DerivedFrom'' and ``Mixture'' Rules

Residuals from the treatment, storage, or disposal of most listed hazardous wastes are also classified as hazardous wastes based on the ``derivedfrom'' rule (40 CFR 261.3(c)(2)(i)). For example, ash or other residuals generated from the treatment of a listed waste generally carries the original hazardous waste code and is subject to the hazardous waste regulations. Also, the ``mixture'' rule (40 CFR 261.3(a)(2)(iii) and (iv)) provides that, with certain limited exceptions, any mixture of a listed hazardous waste and a solid waste is itself a RCRA hazardous waste.

B. How Does EPA Regulate RCRA Hazardous Wastes?

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

All RCRA hazardous wastes are also hazardous substances under the [[Page 66171]]
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), as defined in section 101(14)(C) of the CERCLA statute. This applies to wastes listed in Sec. Sec. 261.31 through 261.33, as well as any wastes that exhibit a RCRA characteristic. Table 302.4 at 40 CFR 302.4 lists CERCLA hazardous substances along with their reportable quantities (RQs). Anyone spilling or releasing a substance at or above the RQ must report the release to the National Response Center, as required in CERCLA section 103. In addition, section 304 of the Emergency Planning and Community RighttoKnow Act (EPCRA) requires facilities to report the release of a CERCLA hazardous substance at or above its RQ to State and local authorities. Today's rule proposes to establish RQs for the newly listed wastes.
C. How Does EPA Regulate Solid Wastes That Are Not RCRA Hazardous Wastes?

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

1. Previous Proposals

Under the Resource Conservation and Recovery Act (RCRA) of 1976, as an amendment to the Solid Waste Disposal Act of 1965, Congress directed EPA to establish a framework for RCRA's Subtitle C hazardous waste program. Congress also required EPA to propose and write timely rules identifying wastes as hazardous under Subtitle C.

In the early 1980's, the EPA's Office of Solid Waste began an investigation of the wastes generated by the dyes and/or pigments production industries. Then in 1984, Congress passed the Hazardous and Solid Waste Amendments (HSWA) to RCRA to significantly expand the scope of RCRA, requiring EPA, in part, to make listing determinations for a number of wastes including those from the manufacture of dyes and pigments (RCRA section 3001(e)(2)). The Agency has made two listing determination proposals with regard to organic dyes and pigments manufacture, one in 1994 and another in 1999, according to the deadlines set forth in a consent decree entered between EPA and Environmental Defense (ED; formerly Environmental Defense Fund, or EDF). The consent decree is described further in II.C.2.

On December 22, 1994, the Agency proposed its first listing determinations for wastes from the production of organic dyes and pigments (59 FR 66071). Specifically, the Agency proposed to list five wastes, not to list six other wastes, and to defer action on an additional three wastes. On July 23, 1999, the Agency proposed concentrationbased listings for two of the three deferred wastes from the 1994 proposed rule (64 FR 40192). EPA redacted underlying data from both proposals due to a court injunction that placed restrictions on the Agency's release of underlying data with unresolved confidentiality claims. (The court injunction is discussed further in II.C.3.) EPA has not taken final action on either of these proposals.

Today's proposed rule completely supercedes the '94 and '99 proposals. We have transferred over to the new docket those nonCBI materials that we are using as a basis for the new proposal. 2. Consent Decree Schedule for This Proposal

As noted above, HSWA established deadlines for completion of a number of listing determinations, including for dyes and pigments production wastes (see RCRA section 3001(e)(2)). Due to competing demands for Agency resources and shifting priorities, these deadlines were not met. As a result, in 1989, ED filed a lawsuit to enforce the statutory deadlines for listing decisions in RCRA section 3001(e)(2). (Environmental Defense v. Whitman, D.D.C. Civ. No. 890598.) To resolve most of the issues in the case, in 1991 ED and EPA entered into a consent decree which has been amended several times to revise the deadlines for EPA action. Paragraph 1.h.(i) (as amended in December 2002) of the consent decree addresses the organic dyes and pigments production industries:

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

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

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

Today's proposal satisfies EPA's duty under paragraphs 1.h and 6.e of the ED consent decree to propose listing determinations and land disposal restrictions for the specified organic dyes and/or pigments production wastes.
3. Effect on Proposals of Legal Actions Pertaining to Confidential Business Information

In late 1994, just prior to EPA's issuance of the first listing proposal for dyes and/or pigments production wastes, EPA was sued by a number of pigment manufacturers who successfully sought an injunction prohibiting EPA from releasing the companies' information that they had submitted to EPA and claimed as Confidential Business Information (CBI). (Magruder Color Co. v. EPA, Civ. No. 945768 (D.N.J.) The U.S. District Court in New Jersey enjoined EPA from disclosing any of the claimed CBI at issue in the litigation. As a result, EPA redacted underlying data from both its 1994 and 1999 proposed dye and pigment listing determinations. Members of the public (including ED) informed EPA that they could not adequately comment on the proposals without access to the redacted data.

EPA had intended to litigate the Magruder case and publish a notice of data availability releasing any information that the Court determined not to be CBI. However, litigation proved extremely time consuming. Consequently, in 2002 EPA decided to try a new strategy issuing a completely new proposal that did not rely on data subject to the injunction in Magruder. EPA also reached a settlement with Magruder plaintiffs that stayed the litigation during this new rulemaking and permitted EPA to disclose certain specified masked and aggregated waste sampling data. The Stipulation and Consent Order entered by the District Court on June 30, 2003 is available in the docket for today's proposal.

Today's proposal has been developed independently of the first and second proposals. It does use some data developed for the 1994 proposal. First, it uses RCRA Sec. 3007 questionnaire
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responses submitted by dyes and/or pigments manufacturers that were not plaintiffs in Magruder and that we have determined are not CBI. We also use the masked and aggregated data from EPA's record sampling and analysis of dye and pigment wastes disclosed pursuant to the settlement described above. Finally, we use some data submitted in public comments that are not claimed as CBI. We are not using, however, any of the analyses or background documents prepared for the two previous proposals. We have conducted new analyses, prepared new background documents, and reached new conclusions. Today's proposal completely supersedes the 1994 and 1999 proposals. EPA does not intend to respond to comments submitted on those proposals. Thus, if you believe that any comments submitted on those proposals remains germane to today's proposal, you should submit them (or relevant portions) again during this comment period.

E. Existing Regulations That Apply to This Industry

RCRA authorizes EPA to evaluate industry waste management practices and, if necessary, regulate how wastes are handled to ensure that present or potential hazards are not posed to human health and the environment. In addition to RCRA, the Clean Water Act (CWA) and Clean Air Act (CAA) provide EPA with the statutory authority to evaluate industry practices and, if necessary, regulate industry releases of pollutants to environmental media such as water and air.

Currently, there are no hazardous waste listings under RCRA specifically directed at organic dyes and/or pigments production wastes. Organic dyes and/or pigments production waste streams may, however, carry hazardous waste listing and/or characteristic codes if they are generated from the use of certain common organic solvents (spent solvent wastes F001 through F005) or if they exhibit a hazardous waste characteristic (ignitabilityD001, corrosivityD002, reactivity D003, toxicityD004D043). In addition, a variety of intermediates used in dyes and pigments production are listed hazardous waste when disposed as discarded commercial chemical products under Sec. 261.33. EPA is not soliciting comment on these existing hazardous waste listings and does not intend to respond to such comments if received. As explained in section IV.B.3, EPA is proposing to exclude from today's proposed listing dyes and/or pigments production wastes that are subject to these existing listings or hazardous waste

characteristics.

Regulatory requirements under the CWA (40 CFR part 414) specify effluent guidelines for wastewaters discharged from the organic chemical industry, including certain dyes and/or pigments production wastes that are discharged to navigable waters. These guidelines are implemented through national pollutant discharge elimination system (NPDES) permits. These regulations apply to dyes and/or pigments production wastes that originate from the manufacture of cyclic crudes and intermediates, dyes, and organic pigments classified under SIC 2865 (among various organic chemicals, plastics, and synthetic fibers (OCPSF) products). In addition, manufacturers who discharge wastewaters generated from dyes and/or pigments production to a publicly owned treatment works (POTW) may be required to comply with general pretreatment requirements (40 CFR part 403) as established by the POTW. Finally, some dyes and/or pigments manufacturers send their wastewaters to privatelyowned centralized wastewater treatment facilities (CWTs) that are operated under NPDES permits. The Agency promulgated effluent guidelines for these facilities at 40 CFR part 437.

Under the CAA, there are existing regulatory requirements for the organic chemical industry that may apply to dyes and/or pigments production facilities, such as:
[sbull] 40 CFR part 60several subparts on standards of performance for VOC emissions for new stationary sources.
[sbull] 40 CFR part 61national emission standards for hazardous air pollutants on equipment leaks from fugitive emission sources, benzene operations, etc.
[sbull] 40 CFR part 63several subparts on national emission standards for hazardous air pollutants (NESHAP) for the synthetic organic chemical manufacturing industry (SOCMI).
[sbull] 40 CFR part 68chemical accident prevention provisions. [sbull] 40 CFR part 82protection of stratospheric ozone.

For example, 40 CFR part 60 subpart Kb provides standards of performance for volatile organic liquid storage vessels; subpart III provides standards of performance for VOC emissions from the SOCMI air oxidation unit processes; and subpart RRR provides standards of performance for VOC emissions from the SOCMI reactor processes. The NESHAP in part 63 subpart F applies to chemical manufacturing processing units; the NESHAP in part 63 subpart G applies to process vents, storage vessels, transfer operations, and wastewater; the NESHAP in part 63 subpart H covers equipment leaks; the NESHAP in part 63 subpart I applies to certain processes subject to the negotiated regulation for equipment leaks; and the NESHAP in part 63 subpart Q applies to industrial cooling towers.

There is also a proposed new source performance standard (NSPS) for volatile organic compound emissions for wastewaters from the synthetic organic chemical manufacturing industry (SOCMI) (see 59 FR 46780, September 12, 1994; and 63 FR, 68087; and December 9, 1998, amendments to the proposed rule based on public comments and changes to other SOCMI rules). This SOCMI Wastewater NSPS proposal will most likely be promulgated and published in the Federal Register in late 2003 or early 2004. Furthermore, the Agency proposed on April 4, 2002, Subpart FFFF NESHAP, to reduce hazardous air pollutants from the miscellaneous organic chemical manufacturing and the miscellaneous coating manufacturing categories (67 FR 16154). This proposal would apply to the production of a variety of SIC 28/NAICS 325 organic chemicals including organic dyes and pigments.

In addition, the Agency has promulgated performance standards and emission guidelines for new and existing commercial and industrial solid waste incineration units burning nonhazardous wastes (see 65 FR 75337; December 1, 2002). The Agency also has recently proposed a NESHAP for industrial/commercial/institutional boilers and process heaters identified as major sources of hazardous air pollutants (HAP) emissions (see 63 FR 1659; January 13, 2003).

There are also air emission regulations for steam generating boilers under 40 CFR Part 60 Subparts D, Da, Dc and Db that provide New Source Performance Standards (NSPS) limiting emissions from boilers built after certain dates. Moreover, the Agency has published an amendment for standards of performance for industrialcommercial institutional steam generating units located at chemical manufacturing plants and petroleum refineries burning highnitrogen byproduct/wastes (66 FR 49830; October 1, 2001).
F. What Industries and Wastes Are Covered in This Proposed Rule? 1. Scope of Industry Classifications

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

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

Today's proposal applies only to certain organic dye and/or pigment production industries. The enduser markets for dyes and pigments, which include textiles, paper, leather, inks, paints, coatings, plastics, fibers, lacquers, varnishes, cosmetics, food items, and other low volume markets, are not within the scope of our listing determination. Similarly, we are not addressing wastes from the post production formulation and packaging of dyes and/or pigments. Consistent with both HSWA Amendments of 1984 and the consent decree, EPA is only making proposed determinations on wastes from the production of the organic dyes and/or pigments at issue.

Facilities impacted by today's proposal manufacture a range of products. Some are exclusive dye manufacturers, while others produce exclusively pigments. Others produce both pigments and dyes, and many of these facilities produce other products that are not dyes or pigments. While the various trade associations have asserted over time that wastes from dye manufacture differs from wastes from pigment manufacture, we are not differentiating between the two types of products for the purposes of this proposal. Dyes and pigments commonly use similar raw materials, and pigments are often made by
insolubilizing dyes. The mass loadingsbased approach proposed today will only impact those facilities that generate wastes with significant levels of the K181 constituents, irrespective of whether they are associated with dyes, pigments or both processes. As a result, this notice uses the terminology ``dyes and/or pigments'' to refer to all of the facilities or processes potentially impacted by this proposal.

Products produced by the organic dyes and/or pigments industries that are included within the scope of this proposed rule are referred to as ``dyes,'' ``pigments'' or ``FD&C colorants.'' The consent decree covers three major chemical classes of organic dyes and pigments: azo/ benzidine, anthraquinone, and triarylmethane. This includes entities who manufacture azo, monoazo, diazo, triazo, polyazo, azoic, benzidine, and pyrazolone categories of the azo/benzidine class; anthraquinones and perylenes; and triarylmethane and triphenylmethane categories of the triarylmethane class.

Commenters on the previous proposed listing determinations for these wastes raised several questions about the range of products that would be associated with any listed wastes from the production of dyes and/or pigments. For the purposes of clarity, we are addressing those particular concerns in today's proposal. One commenter \1\ stated that wastes from the manufacture of polymeric colorants should not be included in the proposed listings. The commenter noted that polymeric colorants are not classified as dyes or pigments by various authoritative sources and are not considered dyes or pigments by industry or endusers. Specifically, the commenter noted that (1) no polymeric colorant is listed in the worldwide dyes registry administered by the United Kingdombased Royal Society of Dyers and Colourists, i.e., the Colour Index; and (2) polymeric colorants do not appear to qualify as a conventional dye or pigment under the guidelines provided in KirkOthmer Encyclopedia of Chemical Technology (Fourth Edition). The commenter described polymeric colorants as polymers with much higher molecular weights (approximately 3,500) than either dyes or pigments (less than 500). The commenter also noted that in prior rulemakings (e.g., carbamate rulemaking \2\ and polymer exemption provisions under the Toxic Substances Control Act (TSCA)),\3\ EPA recognized the reduced toxicity associated with higher molecular weight molecules. The commenter further noted that producers of such products claim that the manufacturing process and end uses of polymeric colorants are different than dyes or pigments in that polymeric colorants must be nonstaining. The dyes manufacturers' trade association, ETAD, noted in their comments that they do not classify polymeric colorants as dyes.\4\ We agree that polymeric colorants do not fall within the classes of products of interest to today's proposal. Wastes from production of polymeric colorants, therefore, are not within the scope of today's proposed listing determination. \1\ See Milliken comments on 1994 and 1999 proposals, available in the docket for today's proposal.
\2\ 60 FR 7824, 7830 (February 9, 1995).
\3\ 40 CFR 723.250.
\4\ See ETAD's comments on 1994 proposal, available in the docket for today's proposal.

Several commenters \5\ stated that perylene and perinone pigments are misclassified as anthraquinones. They argue that although the Colour Index classifies perylenes and perinones as being subclasses of anthraquinone, these pigment classes are not structurally related to anthraquinones and are not derived from anthraquinonebased raw materials, and therefore, should be classified separately. While there may be a question as to whether perylenes should be classified as anthraquinones, we are proposing to retain wastes from the production of perylene products within the scope of today's proposed listing determination. The consent decree specifically requires us to assess perylene products, and therefore we must make listing determinations that cover any corresponding wastes, regardless of whether or not perylenes are properly classified as anthraquinones.
\5\ See comments on the 1994 proposal submitted by CDR, Bayer, and CPMA, and on the 1999 proposal submitted by CPMA, available in the docket for today's proposal.

Regarding perinone pigments, while the Colour Index groups perinones under the broader classification of ``Anthraquinones and Related Colouring Matters,'' we are persuaded by the commenters' arguments that these products are sufficiently dissimilar from anthraquinones. Perinones do not have the quinonetype structure that is distinctive of anthraquinones, but rather perinones are derivatives of naphthalene1,4,5,8tetracarboxylic acid.\6\ Therefore, we are not proposing that perinones be covered by today's proposed listing determination.
\6\ For example, see the perinone pigment: C.I. Pigment Orange 43; in this case the pigment has only one carbon bound to an oxygen in a carbonyl group (instead of two in the typical anthraquinone) and this carbon is bonded to a nitrogen in an amide linkage (instead of a carbon in an anthraquinone).

Commenters also stated that quinacridone pigments are not within the anthraquinone pigment category since they are quinonoid in type and carry Colour Index numbers outside of the anthraquinone category. We agree that these products are sufficiently dissimilar from anthraquinones. Quinacridones are classified as acridines, which have a nitrogen in the fused ring system.\7\ Therefore, we are not proposing to include their wastes
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within the scope of today's proposed listing determination. \7\ For example, see the quinacridone pigment: C.I. Pigment Red 202; this pigment has only one carbonyl group (instead of two in the typical anthraquinone) and instead of another carbonyl moiety the molecule has a nitrogen in the typical acridine ring structure.

Additional information on polymeric colorants, perylenes, perinones, and quinacridones is presented in the ``Background Document for Identification and Listing of Wastes from the Production of Organic Dyes and Pigments'' (hereafter referred to as the Listing Background Document) and in the referenced comments which are available in the public docket for today's proposal.

2. Scope of Waste Classifications

Paragraph 1.h.(ii) of the consent decree describes the dyes and/or pigments production wastes that must be addressed by our listing determination:

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

In this proposal, we have grouped all of the wastes for these industries that are identified in the consent decree into two major categories of process wastes: Wastewaters and nonwastewaters. Some manufacturers may commingle nonprocess wastes (i.e., cafeteria and office refuse, sanitary wastes) with wastewaters or nonwastewaters from dyes and/or pigment production. We consider these nonprocess waste

FOR FURTHER INFORMATION CONTACT For general information, contact the RCRA Call Center at (800) 4249346 or TDD (800) 5537672 (hearing impaired). In the Washington, DC, metropolitan area, call (703) 412 9810 or TDD (703) 4123323 or review our Web site at http://www.epa.gov/epaoswer/hazwaste/id/dyes/index.htm. For information on
specific aspects of the rule, contact Ms. Gwen DiPietro of the Office of Solid Waste (5304W), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, (Email address and telephone number: dipietro.gwen@epa.gov, (703) 3088285). For technical information on the CERCLA aspects of this rule, contact Ms. Lynn Beasley, Office of Emergency Prevention, Preparedness, and Response, Emergency Response Center (5204G), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, (Email address and telephone number: beasley.lynn@epa.gov, (703) 6039086). For information on the procedures for submitting CBI data, contact Ms. Regina Magbie (5305W), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, (Email address and telephone number: magbie.regina@epa.gov, (703) 3087909).