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

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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

ks 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:

” 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:

nue, 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

ttes. We emphasize that submission of comments on diskettes is not mandatory, nor will it result in any advantage or disadvantage to any commenter.

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 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

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

timate.

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

f 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

nty 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? 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 On-site 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

e 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 On-site 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

ies 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?

nology 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 .

rmine 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

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

lations” 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 Reques

e 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) 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 SBR

rks 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

6901 to 6992(k) (42 U.S.C. 6901-6992(k)).

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

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

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 “K-wastes,” such as “Spent potliners from primary aluminum production” (see code K088). Section 261.33 contains lists of commercial chemical products and other materials, known as “P-wastes” or “U-wastes,” that become hazardous wastes when they are discarded or intended to be discarded.

Today's proposed regulations would list certain 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

erived-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-to-Know Act (EPCRA) requires facilities to report the release of a CERCLA hazardous substance at or above its RQ to State and local authorities. Today's rule proposes to establish RQs for the newly listed wastes.

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

tes.

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.

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

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

etermination 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

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)

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.

1 These 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.

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:

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)

25510 (subcodes -1, -4, and -7). This includes, but is not limited to, entities who manufacture:

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 on-site or captive wastewater treatment processes solely or primarily for treating paint production waste liquids; (4) emission control dust or sludge as waste solids collected in a facility's particulate emission control devices such as baghouses; 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

ting 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.)

mpanying 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 off-specification 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

t 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 “off-specification” 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

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.

2 See 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.

EPA wants to clarify the effect of today's proposed listing on “take-back” 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.

3 Letter from David Bussard to N.G. Kraul, February 23, 1993. This letter says that off-specification paint is a non-listed commercial product and not a solid waste when reclaimed.

G. Description of The Paint and Coatings Industry

aint 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, factory-finished 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

r, 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

eaned 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.

emical 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, off-specification 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.

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.

the survey development process, we went on ten site visits to paint manufacturing facilities throughout the country.

4 See 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).

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

lity 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 on-site 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 p

ed on-site, (6) management practices for each residual for both on-site 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

les 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

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 random-sampling scheme 5 designed to represent

5 Stratified 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

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 e-mail 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

ss, 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 off-specification product

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 off-specification 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.)

d 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

(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.

6 The 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.

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

e, 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

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.

7 Steel, Robert G.D. and James H. Torrie, “Principles and Procedures of Statistics: A Biometrical Approach,” 1980, Second Edition, McGraw-Hill, Inc

ing 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.

7 Steel, Robert G.D. and James H. Torrie, “Principles and Procedures of Statistics: A Biometrical Approach,” 1980, Second Edition, McGraw-Hill, Inc.

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

escription 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

acilities 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.

8 As 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.

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 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 29

1-01, 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 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)

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.

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

ies, 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

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

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)

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

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) 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.

• 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

f 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

te 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

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

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 risk-based 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

hat 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 off-specification 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)

79 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.

9 Paint 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.

Taking these facts into account, a concentration-based approach to listing paint production wastes as hazardous has a number of advantages

nt 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)

e 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

l 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

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

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

10 Note 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.

• 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

paint manufacturing wastes are already RCRA hazardous wastes, while 64 percent are currently nonhazardous.

• 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

turing 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 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 Caus

18546 35145 1490 2011 4977 62169 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.

d 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

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

en 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

dous 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

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

nding 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.

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

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 0 0 0 NPDES 0 0 0 0 0 0 0 INC 72 5 0 24 50 6 0 Cement Kiln 56 0 0 0 0 0 0 BIF 3 0 0 0 0 0 0 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 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

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 off-specification 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

estination 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 off-specification 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

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

11 While 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.

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

ated 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

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 low-grade paint, or sent off-site to other

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)).

e 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 on-site tanks prior to discharge to the POTW. One facility directly discharges 76 metric tons of washwater cleaning liquid under a NPDES permit

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 on-site 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. Sixty-one (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

ending 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. Sixty-one (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 on-site 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.

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 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

e, 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

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