Tuesday
February 7, 1995
Environmental
Protection  Agency
        261
Regulatory Determination on Cement Kiln
Dust; Final Rule

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 7366
Federal Register  /  Vol.  60,  No. 25  /  Tuesday, February 7, 1995  / Rules and Regulations
  ENVIRONMENTAL PROTECTION
  AGENCY

  40 CFR Part 261
  [EPA 530-295-003; FRL-5149-6]
  RIN 2050-AD99

  Regulatory Determination on Cement
  Kiln Dust

  AGENCY: Environmental Protection
  Agency.
  ACTION: Regulatory determination.

  SUMMARY: Today's action presents the
 Environmental Protection Agency's
  (EPA) regulatory determination on
 cement kiln dust (CKD) waste. This
 action is required by the Resource
 Conservation and Recovery Act (RCRA).
 EPA has concluded that additional
 control of CKD is warranted in order to
 protect the public from human health
 risks and to prevent environmental
 damage resulting from current disposal
 of this waste. The primary
 environmental concerns to be addressed
 through additional controls are
 documented damages to ground water
 and potable water supplies, and
 potential human health risks from
 inhalation of airborne CKD and
 ingestion via food chain pathways. The
 Agency has decided to take a common
 sense approach in imposing such
 controls. In order to avoid duplication
 among regulatory programs, the Agency
 will use, as appropriate, its various
 authorities under the Clean Air Act,
 Clean Water Act, and RCRA to address
 the relevant pathways of potential
 contaminant releases from CKD.
   Under Subtitle C of RCRA, the Agency
 will develop a tailored set of standards
 for CKD that controls releases to ground
 water. The tailored standards will
 protect human health and the
 environment, while imposing a minimal
 burden on the regulated community.
 Until the tailored regulations are
 published by the Agency, CKD will
 retain the Bevill exemption and the
 status of CKD under RCRA Subtitle C
 will remain unchanged. Those cement
 manufacturing facilities that burn RCRA
 hazardous waste in their kilns will still
 be required to test their CKD to see that
 it remains unaffected by the combustion
 of hazardous waste.
  EPA has not included an evaluation of
 clinker or other products or by-products
 of cement production in this regulatory
 determination. In the absence of the
CKD regulatory exemption, under
certain regulatory scenarios clinker
produced from re-introduced CKD could
be considered a hazardous waste.
However, as part of the regulations that
                            EPA will promulgate as a result of
                            today's determination, EPA intends to
                            exclude clinker from regulation as a
                            derived-from hazardous waste when
                            CKD is re-introduced. At this time, EPA
                            has no indication that such clinker
                            poses an unacceptable threat to human
                            health or the environment.

                            ADDRESSES: Copies of this regulatory
                            determination and the supporting
                            record docket are available for public
                            inspection and copying at the RCRA
                            docket, 401 M Street, SW., Washington,
                            DC, Room M2616, 2nd floor, Waterside
                            Mall. The docket number for this action
                            is F-94-RCKD-FFFFF. The docket is
                            open from 9 to 4 p.m., Monday through
                            Friday, except federal holidays. In order
                            to access the docket, please call (202)
                            260-9327 to make an appointment.
                            Copies are free up to 100 pages and
                            thereafter cost $0.15/page.
                             This document and the Response to
                           Public Comments document are also
                            available on the EPA's Clean-up
                           Information Bulletin Board (CLU-IN).
                           To access CLU-IN with a modem of up
                           to 28,800 baud, dial (301) 589-8366.
                           First-time users will be asked to input
                           some initial registration information.
                           Next, select "D" (download) from the
                           main menu. Input the file name
                           "CKD6.ZIP" to download this notice.
                           Input the file names "CKD7.ZIP" and
                           "CKD8.ZIP" to download the two files
                           that contain the two response to public
                           comments documents. Follow the on-
                           line instructions to complete the
                           download. More information about the
                           download procedure is located in
                           Bulletin 104; to read this bulletin type
                           "B 104" from the main menu. For
                           additional help with these instructions,
                           telephone the CLU-IN help line at (301)
                           589-8368.
                           FOR FURTHER INFORMATION CONTACT: For
                           general information, contact the RCRA/
                           Superfund Hotline at (800) 424-9346 or
                           (703) 412-9810; for technical
                           information contact Bill Schoenborn,
                           U.S. Environmental Protection Agency
                           (5302W), 401 M Street SW.,
                           Washington, DC 20460, at (703) 308-
                           8483.

                           SUPPLEMENTARY INFORMATION:
                           Table of Contents
                           I. Background
                            A. Statutory Authority-
                            B. Public Comment Process
                            C. Stakeholder Comments
                           II. Major Findings of the RTC and NODA
                            A. Sources and Volumes of Waste
                            B. Current and Alternative CKD
                              Management Practices
                            C. Existing Regulatory Controls
                            D. Waste Characteristics
                            E. Documented Evidence of Damage
   F. Potential Risks to Human Health and the
     Environment
   G. Environmental Justice
   H. Potential Costs and Impacts of Subtitle
     C Regulation
   I. Regulatory Options
 III. Applying the Decision Rationale in
     Making the Regulatory Determination
   A. Step 1: Does Management of CKD Pose
     Human Health and Environmental
     Problems? Might Current Practices Cause
     Problems in the Future?
   B. Step 2: Is More Stringent Regulation
     Necessary and Desirable?
   C. Step 3: What Would be the Operational
     and Economic Consequences of a
     Decision to Regulate Under Subtitle C?
 IV. Regulatory Determination for Cement
     Kiln Dust
 V. Next Steps
 VI. Regulatory Flexibility Analysis
 VII. Executive Order 12866
 VIII. Regulatory Determination Docket

 I. Background

 A. Statutory Authority

   EPA is issuing today's notice under
 the  authority of section 3001(b)(3)(C) of
 the  Resource Conservation and
 Recovery Act (RCRA), as amended. This
 section requires that, after completing
 the  Report to Congress (RTC) mandated
 by section 8002(o) of RCRA, the EPA
 Administrator must determine whether
 Subtitle C regulation of CKD waste is
 warranted. The RTC documents EPA's
 study of CKD. It was signed by the
 Administrator on December 30, 1993.

 B. Public Comment  Process

   After submitting the RTC to Congress,
 EPA provided the public with an
 opportunity to comment on the report
 and the appropriateness of regulating
 CKD under RCRA Subtitle C (59 FR 709,
 1/6/94). The public  comment period
 lasted until February 22,1994 (59 FR
 709,1/6/94). Due to numerous requests
 to lengthen the comment period, EPA
 extended the comment period to March
 8,1994 (59 FR 6640, 2/11/94). To ensure
 that all interested parties had an
 opportunity to present their views, EPA
 not only held a public hearing in
 Washington, DC, but also held a series
 of public meetings with representatives
 of the cement industry, the hazardous
 waste treatment industry, regional and
 state environmental  authorities, and
 citizen groups.
  EPA received approximately 1,100
written comments, 18 videotapes, and a
number of photographs prior to the
close of the RTC comment period. All
individual comments and a transcript
from the public hearing are available  for
public inspection in  the RTC docket
(Docket No. F-94-RCKA-FFFFF). The
docket also contains a summary of all
the comments presented at the public

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          Federal Register /  Vol.  60, No. 25 / Tuesday, February  7, 1995 / Rules and Regulations
                                                                    7367
meetings and public hearing, as well as
those submitted in writing.
  To supplement the information
included in the CKD RTC, the Agency
analyzed the public comments and
undertook several additional data
collection and analysis efforts. The new
data generated by EPA were placed into
the RCRA docket for public inspection
and comment and a Notice of Data
Availability (NODA) was published in
the September 14,1994, Federal
Register (59 FR 47133). The Agency
provided a 30-day comment period for
review of the new data and analyses.
The principal new documents placed in
the docket addressed the following
issues: Additional CKD damage cases;
environmental justice; analysis of CKD
generation and characteristics data;
costs of CKD management alternatives;
and human health and environmental
risks posed by CKD management.
   Subsequent to issuing the NODA, EPA
identified certain errors and, in a
supplemental errata document,
corrected certain portions of the new
 data pertinent to additional assessments
 of potential risk from CKD waste. EPA
 published a correction Notice on
 October 11,1994 (59 FR 51440) that
 identified the corrections and provided
 a public comment period on the
 corrected materials until November 10,
 1994.
   In preparing both of these Notices, the
 Agency made a special effort to make
 the data accessible to the public. In
 addition to placing this information in
 the RCRA docket, the Agency posted
 data files in electronic format on EPA's
 Superfund electronic bulletin board
 (CLU-IN) and made these data available
 on disk upon request.
   Today's decision is based on the RTC
 and the data and analyses that underlie
 the report, as well as on public
 comments received during the public
 hearing and public meetings, or in
 written form submitted during the
 comment periods, and EPA analyses of
 these comments.
 C. Stakeholder Comments
    The Agency received over 1,100
 public comments on the RTC on Cement
 Kiln Dust and subsequent Technical
 Background Documents from individual
 companies and trade organizations
 representing the cement industry and
 their affiliated consultants, suppliers,
 and waste fuel blenders; individual
  companies and trade groups
 representing the hazardous waste
  incineration industry, and then-
  associated consultants; other companies
  that handle CKD; public interest groups;
  and private citizens.
   Comments were received on a wide
 variety of topics discussed in the RTC
 and NODA including cement
 production and CKD generation and
 characteristics; current and alternative
 CKD management practices;
 documented damage and potential
 danger to human health and the
 environment; existing regulatory
 controls on CKD management; and cost
 and economic impacts of alternatives to
 current CKD disposal practices. The
 following is a brief summary of the
 major positions presented in the public
 comments. (A detailed response to all of
 the comments is included in two
 background documents that are
 identified below.)
   Companies and groups representing
 the cement manufacturing industry
 generally stated that CKD exhibits low
 inherent toxicity and poses minimal risk
 to human health and the environment.
 They argued for continued management
 of CKD using existing Federal and State
 authorities, and urged the Agency to
 work with the cement industry to
 develop voluntary standards for the
 management of all CKD.
    Commenters from companies that
 handle CKD stated that CKD has
 numerous beneficial uses (e.g., as a
 liming agent or sewage sludge stabilizer)
 which would be detrimentally affected
 by regulation of CKD as a hazardous
 waste.
    Companies and groups representing
 the hazardous waste treatment industry
 generally argued for an aggressive
 regulatory determination for CKD. These
 commenters generally favored removing
 the exemption and immediately
 imposing hazardous waste regulations
 for the management of CKD, especially
 dust from kilns that bum hazardous
 waste.
    Public interest groups generally stated
 that current industry management of
  CKD from kilns that burn hazardous
  waste causes chronic human health
  problems and extensive environmental
  damages, including degraded water and
  air quality, affecting local residents
  around cement manufacturing facilities.
  These commenters generally argued for
  immediate adoption of hazardous waste
  regulations for CKD generated from
  hazardous waste-burning kilns.
    Most of the comments from public
  citizens were from residents living
  around cement manufacturing facilities,
  and the commenters were divided in
  their position on CKD. Some
   commenters expressed concern over
   potential loss of jobs at plants in their
   communities if CKD is regulated as a
,   hazardous waste. Others commenters,
;   generally residents who live around
   cement plants that bum hazardous
waste, stated that releases of CKD from
plants in their communities are a visual
nuisance, degrade the air and
vegetation, and cause health problems
for themselves and their neighbors.
  EPA has carefully reviewed all
comments in arriving at today's final
determination. The Agency has
prepared a detailed summary of
comments received, along with
responses, in two background
documents that are available for viewing
in the RCRA docket. The first document,
titled Summary of and Responses to
Comments on the Report to Congress,
presents the public comments and the
Agency's response to these comments
on the Report to Congress on Cement
Kiln Dust; the second document, titled
Summary of and Responses to
Comments on the Notice of Data
Availability, presents the public
comments and the Agency's response to
the material announced in the NODA.

II. Major Findings of the RTC and
NODA
   In this section, EPA briefly restates
 some of the basic technical findings
 presented in the RTC, as well as new
 insights presented in the technical
 background documents announced in
 the NODA. These findings are generally
 presented in categories that correspond
 to the study factors listed in RCRA
 section 8002(o).
 A. Sources and Volumes of Waste
   Information received by the Agency
 since publication of the RTC (in
 comments and from additional research)
 suggests that, as of 1992, the domestic
 cement industry consisted of 111 plants
 operated by 46 companies. The five
 largest cement clinker producing states
 are California,  Texas, Pennsylvania,
 Missouri, and Michigan. The cement
 industry burns large amounts of high
 Btu fuels, primarily coal and other fossil
 fuels, during the manufacturing process.
 In 1990 and in 1992, 23 facilities also
 burned hazardous waste as fuels.
   Based on an analysis of existing data,
 including data collected by the Portland
 Cement Association and separately by
 EPA under RCRA section 3007 authority
 from operators of cement manufacturing
 facilities, the Agency has determined
 that, nationally, cement plants generate
 large quantities of CKD. In particular,
 EPA has estimated that in 1990, the
 generation of gross CKD (i.e., CKD that
 is collected by air-pollution control
  devices) was 12.7 million metric tons.
 There are, however, wide variations
  among kilns and plants in the amount
  of gross CKD generated per ton of
  clinker.

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Federal Register / Vol. 60, No.  25 / Tuesday, February 7, 1995 / Rules and Regulations
   In addition, there are also wide
 variations among kilns and plants in the
 amount of net CKD (i.e., CKD that is
 either disposed or used beneficially off-
 site) that is generated. For example, 25
 percent of the facilities produce
 essentially no net CKD, while 10 plants
 (about 10 percent of the population)
 generate 40 percent of all net CKD.
   Finally, the Agency also found that
 the burning of hazardous waste is
 correlated with the volume of dust that
 is actually disposed. Kims that burn
 hazardous waste  remove from the kiln
 system an average of 75 to 104 percent
 more dust per ton of clinker than kilns
 that do not burn hazardous waste.
 Regression modeling conducted by EPA
 for the NODA analyses showed a
 consistent, statistically significant
 association between hazardous waste
 fuel burning in cement kilns and
 increased CKD generation on a gross,
 net, and disposed basis. EPA's work
 does not establish the cause of this
 statistical relationship between
 hazardous waste fuel burning and CKD
 generation. The Agency, however,
 believes that increased CKD generation
 is maybe due either to the burning of
 hazardous waste, or to some other plant-
 specific operating factors such as the
 composition of the raw material feed.
 B. Current and Alternative CKD
 Management Practices
  Most of the gross CKD—8.2 million
 metric tons, or 64 percent—was
 recycled directly back into the kiln or
 raw feed system in 1990. For that
 portion of CKD that is disposed,
 standard industry practice is to place it
 in piles, quarries, or landfills, most of
 which are unlined and uncovered. Some
 active piles are also managed
 underwater or adjacent to surface water
 and/or agricultural lands. Although
 most CKD removed from the kiln system
 is disposed on-site, some is sold for off-
 site beneficial  use. For example, in
 1990, about 7 percent of CKD generated
 (897,000 metric tons) was sold for off-
 site use, most of it as a waste stabilizer,
 liming agent, or materials additive.
  Cost-effective opportunities may exist,
 however, to further reduce the amount
                            of CKD that is disposed by recycling it
                            back into the kiln. The Agency has
                            identified a number of pollution
                            prevention opportunities, including flue
                            gas desulfurization, fluid-bed dust
                            recovery, and leaching with water, that
                            may, in some instances, represent low-
                            cost and potentially profitable
                            alternatives to CKD disposal. In
                            addition, the Agency has received some
                            evidence, in comments from cement
                            companies, that raw material
                            substitution may be a highly effective
                            means of increasing CKD recycling
                            rates. This may be done by controlling
                            the input of contaminants (in raw
                            materials and fuels) to the kiln system,
                            thereby reducing or eliminating the
                            need to purge the kiln system of
                            contaminants by removing larger
                            volumes of CKD from the system.

                            C. Existing Regulatory Controls

                             Federal statutes that potentially affect
                            CKD management include the Clean Air
                            Act (CAA), Clean Water Act (CWA), the
                            Resource Conservation and Recovery
                            Act (RCRA), and the Comprehensive
                            Environmental Response, Compensation
                            and Liability Act (CERCLA). Regulations
                            developed under authority of the CAA
                            and CWA impose controls on releases of
                            CKD to the air (via stack or fugitive dust
                            emissions, 40 CFR Part 50) and water
                            (National Pollution Discharge
                            Elimination System (NPDES), 40 CFR
                            Part 122, point source effluent
                            discharges, and 40 CFR Part 411,
                            effluent guidelines for cement
                            manufacturing facilities), respectively.
                            Under both RCRA and CERCLA, the
                            Federal government can respond where
                            the release of CKD or its constituents
                            may present an imminent and
                            substantial danger to human health or
                            the environment. CKD that is not
                            directly recycled is also subject to
                            regulation under Subtitle D of RCRA as
                            a solid waste. In addition, CKD
                            generating facilities that burn RCRA
                            hazardous waste in kilns are subject to
                            the RCRA Boiler and Industrial Furnace
                            (BIF) rule (40 CFR part 266) and other
                            RCRA requirements if the CKD from that
                           combustion is "significantly affected"
 by the hazardous waste fuel. See 40 CFR
 266.112.
   Far states with the highest cement
 production capacity (California,
 Michigan, Pennsylvania, and Texas), the
 Agency has found that CKD waste is
 subject to some regulation under State
 and .local laws, but the requirements
 vary significantly from State to State.
 For example, California regulates CKD
 as a non-RCRA hazardous waste, but has
 suspended enforcement of the
 management requirements for CKD that
 fails the State's hazardous waste
 corrosivity test, pending the results of
 further study of CKD and other
 cementitious materials. Pennsylvania
 regulates CKD as a residual waste,
 requiring facilities to comply with site-
 specific disposal requirements and
 waste reduction strategies, which are
 both periodically updated by the State.
 In contrast, Michigan and Texas both
 consider CKD an industrial non-
 hazardous waste. Michigan requires
 permits, ground water monitoring, and
 regular reports of ground water
 sampling results, whereas Texas issues
 non-enforceable guidance.1

 D. Waste Characteristics

   While CKD itself does not exhibit the
 RCRA Subtitle C hazardous waste
 characteristic of corrosivity (40 CFR
 261.22)2, EPA's data show that mixtures
 of CKD and water often exhibit the
 characteristic of corrosivity. In
 particular, runoff from precipitation that
 contsicts CKD storage and waste piles
 generates considerable volumes of
 wastewater. EPA data show that the pH
 level in such precipitation runoff
 typically exceeds 12.5 standard units,
 the standard for the corrosivity
 characteristic for hazardous wastes (40
 CFR 261.22).
  In addition, EPA's analyses of CKD
 show that CKD does contain certain
metals listed in Appendix 8
 ("Hasiardous Constituents") part 261 of
RCRA. Table 1 presents the range of
total concentration levels for a number
of other toxic metals EPA has observed
in CKD.
                                   TABLE 1 .—Measured Metals Levels in CKD1
                                           [Mg/kg (parts per million), total basis]
Metal
Antimony 	
Arsenic 	
Barium 	
Beryllium 	

No. of sam-
ples
co
fin
CQ
CO

Win.




i °-1
Mean

11.5
14.1
181
1.03
Max.

102
80.7
900
6.2
  1 Texas is in the process of developing on-site
management standards for cement kiln dust and
expects to propose them in 1995.
                            2 EPA hazardous waste identification rules do not
                           include a characteristic or definition for solid
                           corrosives.

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          Federal Register /  Vol. 60, No. 25 / Tuesday,  February 7,  1995  / Rules  and Regulations      7369
                             TABLE 1.—Measured Metals Levels in CKD1-
                                           [Mg/kg (parts per million), total basis]
                                    -Continued
Metal


1 oarlZ 	

MM-'al 	

CIKinr 	
Thallium 	
No. of sam-
ples
61
61
63
57
45
52
56
57
Min.
0.065
3.9
3.1
0.003
3
0.1
0.25
0.44
Mean
9.7
31.2
287
0.33
19.9
12.2
5.9
33.6
Max.
44.9
105
2,620
2.9
55
103
40.7
450
  i Metals data sources include 1992 APCA survey, EPA sampling data, and public comments on the RTC.
      median value for lead is 113 mg/kg.
  For many of the toxic metals, the
concentrations detected in kiln dust
were not significantly different whether
tho dust is generated from kilns that
burn or do not burn hazardous waste.
However, for lead, cadmium, and
chromium, the mean concentration
found in CKD generated by kilns that
burn hazardous waste is measurably
higher than in CKD from those kilns that
do not burn hazardous waste;
conversely, thallium and barium.
concentrations are measurably higher in
CKD from kilns that do not burn
hazardous waste.3 4
   With respect to organics, volatile and
semi-volatile compounds were generally
not found in CKD. However, levels of
2,3,7,8-substituted dioxin, and 2,3,7,8-
substituted dibenzofuran were detected,
although the concentrations were
generally low—ranging from 0.5 to 20
ppt for dioxin and non-detected to 470
ppt for furan. The calculated 2,3,7,8-
TCDD TEQ values for the facilities
sampled by EPA ranged from non-
detected to 9 ppt.
   Noto: EPA sampling data for one cement
plant reported a total dioxins concentration
in CKD as high as 16 ppb, with a TEQ value
for tho managed CKD of 195 ppt. The total
dioxins level measured for this plant were at
least 2'A times higher than those found at
any of the other plants sampled by EPA.
   In terms of potential constituent
solubility and release, leach test results
show that no significant distinction can
be made between CKD generated from
kilns that burn hazardous waste and

   'Tho differences cited are those discernible at a
 95 percent confidence level.
   « While lead, cadmium, and chromium were
 observed (o bo higher in CKD from facilities that
 burn hazardous waste, generally the difference in
 mean constituent concentrations by themselves are
 not enough (I.e., do not differ by more than a factor
 of about 2) to result In discernible risk estimates
 between facilities that do and do not burn
 hazardous waste, after considering other site-
 specific factors affecting exposure (e.g., proximity of
 exposure points, topography). The concentrations of
 barium, chromium, and nickel in CKD are within
 the typical range found in U.S. soils.
those that do not burn hazardous waste.
(This finding was corroborated for
metals in CKD by leachate test results
submitted to the Agency by the cement
industry.) For example, laboratory
analysis of CKD using the Toxicity
Characteristic Leaching Procedure
(TCLP) shows that trace metal
concentrations rarely exceed RCRA
toxicity limits,  whether or not the CKD
is generated at kilns that burn hazardous
waste.5
E. Documented Evidence of Damage
  Migration of potentially hazardous
constituents, including metals, has
occurred from CKD waste sites. In the
RTC and subsequent NODA, EPA
identified 14 cases of damage (10
documented and 4 potential) to surface
water and ground water and 36 cases of
documented damage to air from CKD
waste.6 By damage, the Agency means
that metal constituents have
contaminated ground water and/or
surface water, and/or ah- above a federal
or state standard (e.g., a maximum
concentration limit). Constituents of
concern that have been released to
ground and surface waters include
arsenic, chromium, and lead, among
others. When ground water and surface
water exceedances do occur, the
magnitude  of the exceedance is variable,
going as high as two orders of
magnitude  above the standard.
Environmental damage generally affects
 the area in  the immediate vicinity of the
 waste disposal site. However, in some
 cases, nearby wetlands and streams that
   5 A separate issue raised by commenters is
 whether the TCLP adequately depicts the potential
 for metals to leach from CKD. See the background
 document to this Notice entitled Summary of and
 Response to Comments on the Report to Congress
 in the RCRA docket for a discussion of this issue.
   8 EPA received many comments on the specific
 damage cases described in both the RTC and
 subsequent NODA. Based on review of the damage
 cases, except for only one reassessment, the Agency
 believes the information received does not
 contradict the Agency's basic conclusions regarding
 any of the damage cases.
are off-site were also affected. For
example, excessive discharges from two
facilities in Mason City, Iowa caused
severe degradation of the aquatic habitat
in nearby  Calmus Creek. Observed
releases are commonly1 chronic at sites
at which exceedances have been
documented. However, most of the
documented surface water damage cases
occurred prior to 1991, which was
before implementation of NPDES
general stormwater permits.
   Information on environmental quality,
on which this evidence is based, is
limited by available data from each of
the 127 sites evaluated. For those sites
for which data were available, files
contained information on releases, but
little human exposure data.
Significantly, releases to ground water
were observed at all sites for which EPA
has received ground water monitoring
data; if there had been additional
ground water monitoring data from
other sites, further evidence of leaching
and contamination would likely have
been found. While the Agency has no
documented data on contaminant
transport off-site, or documented data
on human exposure and risk at the point
of drinking water use, this is because
the drinking water wells at these sites
are currently located far enough away,
 and/or tap aquifers are isolated enough,
to be unlikely to intersect contaminated
 ground water.  To the extent that wells
 would be drilled closer to  the sites or
 the contamination spreads, there is
 potential that the wells would tap CKD-
 contaminated ground,water. Waste
 disposal  practices at sites, where water
 damages have been documented include
 management in waste: piles, abandoned
 quarries, or landfills, all of which were
 unlined.  Air damages are cited as
 primarily due to mechanical failure of
 dust handling equipment.''

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Federal Register / Vol. 60. No.  25 / Tuesday, February 7, 1995  /  Rules and Regulations
 F. Potential Risks to Human Health and
 the Environment
   Based on an extensive data base
 compiled from industry sources, Agency
 field visits, RCRA section 3007
 information requests, information
 submitted in comments, literature
 reviews, and other public sources, the
 Agency conducted a series of risk
 screening and site-specific risk
 modeling studies to evaluate potential
 risks from on-site management and off-
 site uses of CKD. Methodologies and
 results of these studies were
 documented in Chapter 6 of the RTC
 and its related  technical background
 document and  in two subsequent EPA
 technical background documents titled
 Human Health and Environmental Risk
 Assessment in  Support of the
 Regulatory Determination on Cement
 Kiln Dust (August 31,1994) and
 Supplemental Errata Document for the
 Technical Background Document for the
 Notice of Data Availability on Cement
 Kiln Dust (September 30,1994).
 Principal findings from these studies
 include the following:
   • Among a sample of 83 plants for
 which EPA had sufficient data to
 conduct a site-specific risk screening
 evaluation for metals in CKD, the
 Agency predicted only low or negligible
 risk potential from on-site management
 of CKD via conventional direct
 pathways of constituent transport and
 exposure  (drinking water, incidental
 direct ingestion, chemical inhalation)
 via ground water contamination, surface
 water runoff to  streams or lakes, or
 windblown dust. However, there are
 three principal  and important
 qualifications to these direct pathway
 findings:
   • As noted above, EPA has found
 empirical evidence of ground water
 contamination near the management
 unit at each cement manufacturing
 facility where ground water quality data
 exist; these sites are located in both
 areas of karst and non-karst terrain.
   • According to U.S. Geological
 Survey maps and other sources, about
 half of all  cement plant sites are
 underlain by limestone formations in
 areas of karst landscape. These
 limestone formations may have fissures
 caused by rock dissolution along joints
 or bedding planes with hydraulic
 characteristics that allow leachate to
 directly enter ground water aquifers
without substantial dilution or
attenuation. Available ground water
pathway modeling techniques are not
applicable under these conditions. This
does not necessarily mean that ground
water contamination will occur at these
cement plants (although that would be
                            consistent with some of the damage
                            cases); however, it should be regarded
                            as a significant qualification to the
                            general findings of low or negligible risk
                            from the ground water pathway risk
                            modeling results.
                              •  In its follow-up work leading to the
                            NODA, EPA did find evidence of
                            possible risk to human health due to the
                            fine particulate nature of inhaled dust.
                            Although the Agency's direct inhalation
                            exposure modeling studies described in
                            the RTC did not indicate  significant risk
                            from inhaled chemical constituents in
                            CKD, subsequent screening-level
                            modeling on a small number of plants
                            did indicate that windblown dust from
                            uncontrolled CKD waste management
                            units could exceed EPA's health-based
                            fine particulate (10 micron or less)
                            National Ambient Air Quality Standard
                            (NAAQS) at plant boundaries, and
                            potentially at nearby residences. Results
                            from a more recent extension of this
                            work to a larger sample of 52 cement
                            plants suggest that 28 of the plants
                            could exceed NAAQS standards at plant
                            boundaries, if the plants do not have
                            effective dust control mechanisms.7
                            Although quantitative risks presently
                            can not be estimated, these initial
                            modeling results relating  to fine
                            particulates suggest cause for concern
                            and argue for further attention to this
                            source of fugitive dust.
                             • The Agency also modeled health
                            risks via indirect food-chain pathways
                            (i.e., risks from ingestion of crop or
                            livestock products or fish containing
                            CKD-derived chemical contaminants).
                            These contaminants reach the food
                            chain as part of storm water run-off and/
                            or wind erosion from uncontrolled CKD
                            storage or disposal areas to nearby water
                           bodies and farm fields. The Agency's
                           indirect pathway methodology is
                           relatively new, complex, and still under
                           refinement and peer review. Therefore,
                           the reported results must be regarded as
                           preliminary  and subject to substantial
                           uncertainties. However, the
                           methodology represents the best
                           available approach for evaluating these
                           potential risk pathways of interest.
                             EPA's indirect food chain risk
                           modeling estimated that potential
                           individual cancer risks in  the 1x10 ~5 (1
                           in 100,000) to IxlO-3 (1 in 1,000) range
                           to highly exposed subsistence farmers
                            7 Documentation and detailed results of five case
                           study facilities are documented in the technical
                           background document for the NODA on human
                           health and environmental risk assessment (see 59
                           FR 47133). The documentation and detailed results
                           of the more recent work are presented in the
                           Technical Background Document on Potential Risks
                           from Cement Kiln Dust in support of the Cement
                           Kiln Dust Regulatory Determination, January, 1995.
                           This document is located in the RCRA docket No.
                           F-95-RCKD-FFFFF.
 and subsistence fishers from CKD
 metals (principally arsenic) could occur
 at about 12 percent of the 83 cement
 plants studied. Similar risk levels due to
 dio>dns are also possible at some
 additional sites, although the Agency's
 data base on dioxin concentrations in
 CKD was not extensive enough to
 conduct a similar large sample study. In
 addition, about 18 percent of the plants
 (mostly the same plants with the higher
 estimates for cancer risks) were
 estimated to have potential non-cancer
 hazard ratios greater than 0.1 for highly
 exposed potential farmer/fisher
 individuals. That is, they would
 contribute enough of a toxic metal such
 as cadmium, chromium, or thallium
 through a possible food source (fish,
 vegetable, or beef and milk source) to
 equal one-tenth of a subsistence
 individual's allowable health-based-
 standard intake from all sources, hi a
 few Instances, a toxic metal food chain
 exposure was estimated to exceed a
 non-cancer health based standard by
 more than a factor of 100. Preliminary
 analysis presented in the September
 1994 technical background document
 also suggested possibilities for elevation
 of blood lead levels in children living
 near uncontrolled CKD piles, due to
 food chain exposures.
   These indirect pathway risk  estimates
 are based on current standard Agency
 methods to account for toxic metals and
 dioxlns to be bio-concentrated in plant
 and animal components of foods for
 human consumption. The Agency did
 not have direct data on local food
 consumption patterns for backyard
 gardeners, subsistence farmers, or
 recreational or subsistence fishermen in
 areas of potential exposure. In this
 instance, standard Agency assumptions
 (as documented in the RTC and
 background document) regarding
 consumption rates of home-grown beef,
 dairy products, vegetables and  family-
 caught fish were used to estimate
 exposures to these potentially affected
 consumers.
  The  particular sites selected for
 indirect pathway analysis from among
 the 83  plants in EPA's study were
 carefully screened with respect to the
 potential for CKD releases from
 currently active piles and exposures via
 land, air, and surface water pathways.
 Proximity to nearby streams or  lakes  (for
 possible risk via fish ingestion) and
 distance to actual farm fields and rural
 dwellings likely to have gardens (for
 potential exposures from home grown
vegetables and/or beef and milk) were
 determined from a variety of sources,
including company-provided maps, U.S.
Geological Survey maps, and aerial
photographs.

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          Federal Register / Vol.  60,  No. 25  /  Tuesday,  February 7, 1995 / Rules  and Regulations     7371
  EPA's risk assessment work did not
explicitly consider the potential for
changes in population around CKD
management units, which would alter
future direct and indirect exposure
potentials. Proximity to the source is
one of the more important determinants
of risk, and many cement plants are
experiencing encroachment by human
populations.
  • The Agency also studied several off-
site beneficial uses of waste dust. Most
current off-site uses, such as for waste
stabilization or general construction, are
either currently regulated (under RCRA
for hazardous waste stabilization, or
under the Clean Water Act in the case
of municipal sewage sludge) or appear
to present low risk due to low exposure
potential. However, one current use—as
a lime/fertilizer substitute on
agricultural fields—was found to
present some potential for indirect food
chain risk under plausible exposure
modeling assumptions for highly
exposed fanners.
  As reported in the RTC and the
December 1993 technical background
document, median industry-wide  CKD
constituent concentration values for
metals and dioxins did not yield cancer
or non-cancer human health risks  of
concern when modeled using current
Agency indirect food chain modeling
procedures and a normal land
application rate of two tons of CKD per
acre every three to five years. However,
cancer risks for subsistence farming in
excess of 1x10—«(1 in 10,000) were
estimated when high-end (upper 95th
percentile) reported constituent
concentration levels for metals and
dioxins were used.
   Again, these indirect exposure results
should be reviewed with caution due to
the substantial uncertainties involved in
this risk modeling methodology, which
is still under refinement and peer
review. The Agency believes, the results
 do suggest the need for further study
regarding possible human health
implications from this current off-site
USB of CKD.
 G. Environmental Justice
   As part of its analysis of risks to
 human health posed by CKD, the
 Agency investigated whether there are
 environmental justice issues associated
 with the management of CKD. Executive
 Order 12989, dated February 11,1994,
 and titled "Federal Actions to Address
 Environmental Justice in Minority
 Populations and Low-Income
 Populations," directs federal agencies to
 consider environmental justice issues.
 The Agency's risk modeling results
 indicate that subsistence farmers  and
 subsistence fish consumers would be
most susceptible to the risks posed by
the management of CKD.8 In the RTC,
EPA solicited comment on the
prevalence of these activities around
existing cement manufacturing
facilities. The Agency also requested
comment on environmental justice
issues (i.e., the fair treatment of people
of all cultures, incomes, and educational
levels with respect to protection from
environmental hazards) associated with
the management of CKD.
  As part of the NODA, EPA announced
the availability of a report titled Race,
Ethnicity, and Poverty Status of
Populations Living Near Cement Kilns
in the United States. The report
includes numerous analyses and
summaries of the demographics data,
and is available in the RCRA docket.
One analysis indicated that, of the
facilities studied, approximately three-
fourths of the sites have a minority
population at or below the national
average of 24 percent living within one
mile of the facility while the remaining
sites had minority populations higher
than the national average living within
a mile of the site. With regard to poverty
level, approximately 54 percent of the
facilities had less than 13 percent of the
population (national average) living
below the poverty level within one mile
of the facility while 46 percent of the
facilities had more than 13 percent of
the population living below the poverty
level within one mile of the facility.
H. Potential Costs and Impacts of
Subtitle C Regulation
   The analysis presented in the RTC
indicates that if CKD were managed as
a RCRA hazardous waste under the full
Subtitle C regulatory scheme, including
minimum technology (RCRA section
 3004(o)) and land disposal restriction
requirements (RCRA section 3004(d-g)),
there would most likely be significant
 compliance costs for a substantial
number of cement plants. Costs would,
 however, vary considerably, depending
 on individual plant efficiencies in
 converting raw materials into finished
 cement. For the 25 percent or so  of U.S.
 cement plants that presently generate
 little or no wasted dust for on-site
 disposal, compliance costs for CKD
 would be negligible. For the remaining
 75 percent, the Agency estimates the
 annualized incremental compliance
 costs at between $2 million and $14
   8 For purposes of this report, subsistence farmers
 and subsistence fish consumers are those whose
 diets are very heavily dependent on home-grown
 foods or locally caught fish. Particularly high
 exposures to contaminants can result from
 bioaccumulation of toxic constituents in the locally-
 grown farm products or fish, compounded by a high
 proportion of these foods in the diet.
million per year per plant (not including
corrective action), depending on an
individual plant's current CKD quantity
and local landfill construction
conditions. This range for typical
annual plant costs translates into $3 to
$28 per ton of cement, or 6 to 56 percent
of a plant's annual gross value of sales
(at a nominal selling price of $50 per ton
of cement).
  Such high costs are a result of the
relatively high waste-to-product ratios
among plants in this industry and the
high unit compliance costs for the  full
Subtitle C technology. Costs at
individual plants might be reduced if
facility operators could decrease net
waste generation rates by improving
basic plant efficiencies, substituting
lower alkali raw materials, or
implementing dust reclamation  and
recycling technologies, as discussed in
Chapters 8 and 9 of the RTC. The extent
to which these pollution prevention
options can be implemented
economically, however, is uncertain.
  For those facilities with high CKD
generation rates that cannot reduce their
waste-to-product ratios .economically,
costs for the full Subtitle C scenario
would be prohibitively high, and a
substantial portion of the industry could
become noncompetitive. Projected
impacts under this regulatory scenario
suggest a substantial curtailment of
domestic cement capacity and
production, a shift in market share
towards the more efficient domestic
producers, higher prices for cement in
most regions of the country, and
substantially increased imports.
Important secondary impacts on
regional construction industries and on
small communities affected by cement
industry employment losses also would
be projected.
   The costs of managing CKD as a
hazardous waste would be reduced if
 certain Subtitle C requirements (e.g.,
 land disposal restrictions, minimum.
 technology requirements for managing
 CKD) were modified. In the RTC, the
 Agency speculated that plant-level costs
 under this scenario might amount to
 one-third to one-half the cost of full
 Subtitle C for typical plants with
 median to high CKD generation rates.
 Alternative, more tailored standards
• were estimated to require even  lower
 compliance costs, particularly for
 favorably located plants or plants
 already employing available
 containment measures; Depending upon
 specific requirements, the costs for these
 types of controls generally were less
 than one percent of the industry cement
 sales value, although they could be
 higher for some facilities located in
 areas of karst terrain, which might

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 7372
Federal  Register  /  Vol.  60, No. 25  /  Tuesday, February 7, 1995 / Rules and Regulations
 require more extensive ground water
 protection measures.
   In addition to these two lower-cost
 versions of a possible Subtitle C land
 management option, the cement
 industry suggested, in public comment,
 a "voluntary contingent management
 practice" proposal, that was estimated
 by industry representatives to cost
 between $5 and $14 per ton of CKD at
 various plants and to average about $10
 per ton. Although EPA has not been able
 to confirm these estimates, this land
 disposal technology would, using the
 industry's cost figures, require an
 average industry-wide compliance cost
 of about one percent of gross cement
 sales.
  Though by no means negligible, costs
 averaging one per cent of sales would
 not imply the dire consequences for the
 industry that would be suggested by the
 full Subtitle C regulatory scenario.
  In addition, cost effective dust
 reduction and reclamation options
 remain a possibility under any of the
 regulatory scenarios discussed. Industry
 representatives in public comment have
 challenged the efficacy and cost
 effectiveness of these waste reduction
 and recovery options. Nevertheless,
 operational prototypes do exist and
 technologies such as the
 Passamaquoddy flue-gas scrubber and
 alkali leaching (both described in
 Chapter 8 of lie RTC) do show benefits
 in stack gas pollution control and/or by-
 product sales to help offset capital and
 operating costs, as well as reducing
 basic raw material requirements.
 Further examination of the economics of
 the Passamaquoddy recovery scrubber,
 as reported in the September NODA
 document, indicated that prospective
 unit costs for plants with lower CKD
 quantities would be higher than
 originally estimated in the RTC.
 However, otherwise, the Agency
 continues to believe that this and other
 alternatives can potentially serve as
 technically and economically viable
 options to land disposal of CKD, at least
 for some plants.

 /. Regulatory Options
  Based on the findings of the RTC, the
 Agency considered a number of options
 for the management of CKD. These
 options represent a range of
 requirements for management of CKD
 waste. From these, the Agency chose to
 highlight five specific options,
 including three in which CKD would be
managed under RCRA Subtitle C. (For
more detail on the options, see 59 FR
 709,1/6/94.) The specific options are:
  Option 1: Retain the CKD exemption.
  Option 2: Retain the CKD exemption,
but the Agency would enter into
                            voluntary agreements with the industry
                            whereby they would implement dust
                            recycling technologies, reduce waste^
                            and monitor and control CKD
                            management and use.
                              Option 3: Remove the CKD
                            exemption, but delay implementation
                            for some period of time (e.g., two years)
                            that would allow industry time to
                            employ pollution prevention measures.
                              Option 4: Remove the CKD
                            exemption, and implement the
                            compliance measures within six
                            months.
                              Option 5: Promulgate tailored
                            regulatory standards for the
                            management of CKD waste under
                            Subtitle C of RCRA.
                              In presenting this list of options, the
                            Agency noted that control of CKD under
                            Subtitle C may not be warranted or
                            appropriate if other statutes
                            administered by EPA (such as the Clean
                            Water Act, Clean Air Act, or Toxic
                            Substances Control Act) are better
                            suited to address the concerns identified
                            in the RTC. The Agency indicated that
                            these statutes were also being
                            considered in the Agency's decision to
                            either retain or remove the CKD
                            exemption.

                            III. Applying the Decision Rationale in
                            Making the Regulatory Determination
                             hi its decision making process, the
                            Agency's approach was the same as for
                            previous special waste determinations 9.
                            As explained in the RTC, the study
                            factors were evaluated in a step-wise
                            sequence to arrive at a decision. This
                            approach allows EPA to make a
                            systematic evaluation of the information
                            presented in the RTC, the notices, and
                            in all  public comments. The Agency has
                            carefully evaluated all comments
                            received in making its decision. (All of
                            the comments received on the RTC, the
                            NODA, and the correction notice are
                           addressed in the background documents
                           titled  Analysis of and Responses to
                            Comments on the Report to Congress on
                            Cement Kiln Dust and Analysis of and
                            Consolidated Responses to Comments
                           on the Notice of Data Availability,
                           which are available in the RCRA
                           docket.)
                             The Agency considers its step-wise
                           methodology to be consistent with
                           Congressional intent that EPA consider,
                           all the study factors listed in RCRA
                           section 8002(o). hi addition, EPA
                           received no substantive comments on
                           the RTC that disagreed with any aspect
                            'For a discussion of EPA's approach in
                           combining the RCRA study factors, see the
                           discussion of the Agency's approach in the Final
                           Regulatory Determination and Final Rule for
                           Special Wastes From Mineral Processing (56 PR
                           27300, June 13,1991).
 of its decision methodology. Therefore,
 no changes have been made in the
 approach.
   The step-wise process that the Agency
 applied to the available information is
 presented below.

 A. Step 1: Does Management of CKD
 Pose Human Health and Environmental
 Problems? Might Current Practices
 Cause Problems in the Future?
   The initial component of the Agency's
 decision making process is to determine
 whether CKD either has or may
 adversely impact human health or the
 environment. To resolve these issues,
 EPA has posed the following key
 questions:

 Substep 1. Has CKD as Currently
 Managed, Caused Documented Human
 Health Impacts or Environmental
 Damage?
   The Agency has determined that CKD
 has caused documented impacts (and
 may continue to cause impacts) at levels
 of concern. As explained in the RTC,
 danger to human health and the
 environment is defined to include
 various effects associated with the
 management of CKD, including acute
 and chronic human health effects,
 significant impairment of natural
 resources (e.g., contamination of a
 source of drinking water), degradation
 of naitural ecosystems and habitats, and
 detrimental impacts to terrestrial or
 aquatic fauna. A case is considered
 proven if damages are documented as
 part of a scientific investigation,
 administrative ruling, or court decision.
 In its examination of cases of damage to
 human health and the environment, the
 Agency identified fourteen cases of
 ground water and/or surface water
 contamination (10 documented and 4
 potential), including two sites that are
 listed on the CERCLA (Superfund)
 National Priorities List (NPL). hi each
 case, there is information available to
 indicate that on-site surface water and/
 or ground water has been affected by
 CKD management units. Typical
 impacts include elevated pH, total
 dissolved solids, and sulfate above
 secondary federal or state concentration
 limits as well as elevated levels of
 certain potentially toxic metals such as
 arsenic, cadmium, chromium, and lead
 that fire above primary drinking water
 MCLs.
  One of the NPL sites with ground
 water damage is in an area of karst
 terrain. The RTC described a release at
this site of contaminants to ground and
 surface water through a "blowout" (i.e.,
 sudden discharge) into a nearby creek
that resulted in increased turbidity and
an abrupt decline in stream biota

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          Federal Register / Vol. 60, No.  25 / Tuesday, February 7,  1995 / Rules and Regulations     7373
downstream of the release. An
investigation by the facility showed
waste Win dust to be the original source
of contamination. Since the site is in an
area of karst terrain, it is both logical
and reasonable to believe that the waste
dust rapidly migrated through discrete
channels in the bedrock, with minimal
attenuation, to the point of the blowout.
The fact that this occurred at the site
suggests EPA's MMSOILS ground water
model is not suitable for karst type
terrain, since the model assumes ground
water migration through bedrock that is
uniformly porous, and lacks discrete
channels.
  Of particular concern to the Agency is
the extent of documented contamination
of ground water. Even though limited
information exists on ground water
contamination due to a lack of
monitoring programs at most sites, each
case with available information on
ground water shows contamination at
levels of concern. Only 17% of all
cement manufacturing facilities have
ground water monitoring  systems
around their dust management units.
Those plants are considered to be
representative of the industry. Thus, the
Agency considers it likely that more
damages exist, even though it did not
conduct a detailed investigation of
ground water beneath all  CKD waste
management units.
  Environmental damages can also be
attributed to particulate emissions of
CKD from quarries, haul roads, and CKD
handling equipment (screws, conveyors,
and trucks), and are traceable to kilns
that do and do not burn hazardous
waste. Several commenters on the RTC
indicated that air dispersion of CKD was
a significant source of pollution to local
residents living around cement
manufacturing facilities. In addition, the
RTC identified numerous citizen
complaints of excessive particulate
matter from cement plant operations
collecting on cars, lawns, gardens,
chairs, and other personal property of
area residents. While developing the
RTC, the Agency reviewed numerous
letters in state files from residents living
near cement kilns who complained of
 fugitive dust emissions (which may be
 due to release of CKD from plant
 operations and/or dust disposal piles).
 Although the Agency recognizes that
 dust from mining and quarry operations
 could contribute to the particulate
 emissions from a cement plant, other
 evidence (i.e., damage cases) indicates
 that fugitive CKD emissions are a
 substantial contributor to environmental
 damages in the form of air quality
 degradation.
Substep 2. Does EPA's Analysis Indicate
That CKD Could Pose Significant Risk to
Human Health or the Environment At
Any of the Sites that Generate It (or In
Off-Site Use), Under Either Current
Management Practices or Plausible
Management Scenarios?

  The Agency's analysis indicates that
there are potential risks warranting
concern, from both current on-site
management practices and certain off-
site beneficial uses. In the RTC and
NODA documents, the Agency reported
on plant-specific risk screening and
quantitative risk modeling conducted to
evaluate potential risks from current
and plausible future management of
CKD. As summarized in the findings
above, current on-site land management
practices appear generally to pose
relatively low risks to human health via
direct pathways of contaminant
transport and exposure.
   However, with respect to possible
ground water contamination, a large
percentage of cement plants (and CKD
management units at those cement
plants) are located in areas of karst
terrain, many of which may be
underlain by bedrock with hydrological
characteristics conducive to relatively
direct leachate transport to off-site
locations. In karst aquifers,
contaminants can potentially migrate
long distances through open conduits
with little of the filtration, adsorption,
and dispersion that are typical of
contaminant dispersal in porous
bedrock.
   In addition, modeling of windblown
dust from CKD management areas
suggests that dust piles, when
uncontrolled (i.e., uncovered and dry),
may typically release sufficient
quantities of fine particulates to exceed
health-based National Ambient Air
Quality Standards (NAAQS) at plant
boundaries, and sometimes as far away
as nearby residences.
   The Agency's quantitative modeling
of "indirect" food chain pathways, both
aquatic and agricultural, indicates
potential human health effects, both
 cancer and non-cancer. A wide range of
 chemical constituents, including
 arsenic, cadmium, chromium, barium,
 thallium, lead, and dioxins, were
 indicated as constituents of concern at
 various plants. Because some CKD
 disposal units are located near, and in
 some instances immediately adjacent to,
 farm fields, rural residences with
 gardens, or surface waters containing
 fish, there is potential for indirect risk
 from the consumption of CKD-
 contaminated beef, vegetables and fish,
 as well as ingestion of CKD-
contaminated water during recreational
swimming.           !
  Although limited by available data
and assessment methodology, the
Agency's risk assessment studies also
indicated potentials for adverse aquatic
ecological effects due to possible
chemical releases to streams and lakes
adjacent to some cement plants. Aquatic
ecological damages due to siltation and
sedimentation were not specifically
studied in the risk assessment, but were
observed in field visits and reported as
a problem in damage  case documents
and in public comments.
  The Agency's risk assessment for off-
site beneficial uses of CKD indicated
that, except for direct application as a
lime/fertilizer substitute, most off-site
uses do not pose significant risks. Direct
cropland application, however, occurs
at a number of locations in the country
and is essentially unregulated at the
state and federal levels. Analysis
suggests that, at plausible application
rates, CKD that contain sufficiently high
concentrations of arsenic or other metals
or dioxins (as documented in the
Agency's CKD constituent data base),
could cause food chain risks of concern
that may warrant some type of
regulation for these off-site uses.
Substep 3. Does CKD Exhibit Any of the
Characteristics of Hazardous Waste?
  Although all of the toxicity
characteristic (TC) metals (arsenic,
barium, cadmium, chromium, lead,
mercury, selenium, and silver) were
detected in CKD, CKD exhibits the
toxicity characteristic infrequently, and
only for certain metals. This is based
analysis of the CKD analytical data
available to the Agency. Although CKD
itself is not corrosive under EPA's rules
because it is a solid,  water-CKD
mixtures are highly alkaline. Data
presented in the RTC indicate that the
pH of CKD leachates (using standard
EPA leach test procedures) are typically
between 11 and 13 standard units. In
 addition, the elevated pH of a CKD-
water mixture is a prominent factor in
 10 out of 14 cases of damage
 (documented and potential) to surface
 water and/or ground water, hi six of
 these cases, including the ground water
 damages described for the two plants
 listed on the NPL, CKD-water mixtures
 are reported to have  a pH exceeding the
 EPA standard of 12.5 for corrosive
 hazardous waste (40 CFR 261.22).
   The results of Step 1 of the decision
 process indicate that CKD has posed
 and may continue to pose risks to
 human health and the environment
 under plausible management scenarios.
 Releases have occurred and may
 continue to occur as a result of current

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 7374      Federal Register / Vol. 60, No.  25 / Tuesday, February 7, 1995 / Rules and  Regulations
 management practices (e.g.,
 management of CKD in unlined,
 uncovered piles near shallow ground
 water and surface water bodies), posing
 risk to human health and the
 environment.

 B. Step 2: Is More Stringent Regulation
 Necessary and Desirable?
  EPA evaluated State and Federal
 regulations pertaining to CKD waste.
 The Agency has determined that the
 answer to this question is yes, more
 stringent regulation of CKD is necessary
 and desirable.

 Substep 1. Are Current Practices
 Adequate to Limit Contaminant Release
 and Associated Risk?
  The Agency has determined that
 current practices are inadequate to limit
 contaminant releases and associated
 risks. CKD is now managed primarily
 on-site in non-engineered landfills,
 piles, and ponds. Many piles and
 landfills lack liners, leachate controls,
•or run-on/run-off collection systems. In
 addition, while dust suppression
 measures exist at many facilities, it
 appears that they are generally
 ineffective at controlling airborne
 releases of CKD.

 Substep 2. Are Current Federal and
 State Regulatory Controls Adequate to
 Address the Management of CKD?
  The Agency has determined that
 Federal and State regulatory controls
 need to be improved for the proper
 management of CKD. Some existing
 regulations do apply to CKD piles, but
 are rarely tailored to the cement
 industry.  In addition, problems  with
 repeated releases of CKD to the
 environment suggest that
 implementation of existing regulations
 is uneven.  -
  The Agency has analyzed the
 application  of regulations and standards
 under the Clean Air Act (CAA) for
 cement manufacturing facilities.
 Implementation of the CAA
 requirements varies from State to State.
 In addition to the baseline Federal
 requirements,10 each of the  four States
 studied in the RTC selectively
 implements more stringent  standards on
 a case-by-case basis. For example,
 California regulates two more pollutants
  10 The Clean Ait Act is implemented through the
State implementation plan (SIP). As explained in
the RTC, the Clean Air Act as amended (see section
110{a)(2)) requires ah acceptable SIP to contain
detailed provisions to address: Emission limitations
and control measures; monitoring requirements,
review of new and modified sources for compliance
with new source performance standards, prevention
of significant deterioration, and non-attainment
review; adequate legal authority; and a permit
program.     '
 than required under the NAAQS.
 Pennsylvania has fugitive dust controls
 as a permit condition and discourages
 the open storage of CKD.
   The Agencylielieves that there are
 adequate existing authorities in the
 Clean Air Act to address risks via the air
 pathway posed by the management of
 CKD. However, there appears to be a
 need for increased regulation and
 implementation under the Clean Air
 Act. The Agency has information that
 indicates releases of particulate
 emissions at cement plants are common,
 persistent, and continuing. The RTC
 documents 21 incidents of CKD releases
 at 13 facilities. With the exception of
 one case that involved fugitive dust
 emissions from a CKD pile, all cases
 involved visible emissions violations
 (opacity) related to equipment
 malfunctions associated with CKD
 handling equipment (kilns, baghouses,
 screw conveyors)J'. hi addition,
 persistent releases of CKD are
 documented in the Agency's NODA for
 one facility in Pennsylvania. This
 facility was cited for 16 air emissions
 violations between March 1983 and *
 June 1989. Also, significant releases of
 airborne particulates at other facilities
 were frequently observed first-hand by
 Agency staff during the course of this
 study12.
  Numeric standards for point source
 discharges of wastewater from cement
 facilities have been established under
 the Clean Water Act, and are
 administered through the NPDES permit
 program (40 CFR part 122) along with
 industry-tailored effluent limitations for
 runoff from materials storage  piles  (40
 CFR part 411). Indirect discharges via
 publicly owned treatment works
 (POTWs) are subject to general
 pretreatment standards under 40 CFR
 part 403. Wastewater discharges from
 individual facilities may also  be subject
 to state water quality standards and
 state or local effluent discharge
 standards.
  In addition, EPA proposed a multi-
 sector stormwater general permit under
 the NPDES program on November 19,
 1993 (58 FR 61146). The proposed
 permit contains limits to control
 effluent discharges specific to the
 cement industry (among other
 industries) and requires each plant to
 develop facility-specific pollution
 prevention plans and demonstrate best
  1' One plant has submitted a video to the Agency
that indicates that its CKD management practices
have changed.
  12 A general description of these emissions can be
found in the EPA CKD sampling trip reports which
are located in the support section of the RCRA
docket on the Report to Congress, Docket No. F-94-
RCKA-FFFFF.
 management practices (BMP) to
 minimize the contact between
 stonnwater runoff and CKD or other
 pollutant sources, or else remove CKD
 (or other constituents) before the
 stonnwater is discharged. This permit
 will be in addition to previously issued
 and effective storm water baseline
 general permits that were issued in 1992
 by EPA and between 1991 and 1993 by
 the 40 states with authorized NPDES
 programs. The  final multi-sector storm
 water general permit is expected to be
 issued by EPA  in early 1995.
   With respect to ground water, there
 are no Federal  standards that are
 adequate to address the risks  posed by
 CKD via the ground water pathway. The
 Safe Drinking Water Act (42 U.S.C. 300
 f—j) protects drinking water by setting
 maximum contaminant levels (MCLs)
 for toxic contaminants, including
 metals. However, drinking water
 standards are only protective at the
 point of consumption. Public water
 supply wells are protected through the
 wellhead protection program under the
 SDWA  (41 U.S.C. 300h-7(e)).
   Of the states  studied in the RTC, three
 (California,  Michigan, and
 Pennsylvania) have primacy for
 implementing the NPDES program. The
 program in Texas is administered by
 EPA but incorporates more stringent
 Texas water quality requirements. These
 four states have ground water protection
 programs that set non-degradation  of
 ground water quality as a goal. In
 addition, Texas implements an EPA-
 approved wellhead protection program.
   Water quality regulations vary from
 state to state. California's water quality
 program includes long range resource
 planning, annual inspection of all
 facilities, and compliance with stringent
 surface  water and ground water quality
 standards. The  California program also
 grants broad enforcement authority to
 its State Water Resources Control
 Boards. Pennsylvania and Michigan
 inspect major industrial dischargers
 (including some cement plants)
 annually, and enforce permit
 requirements. In addition, Michigan
 requires compliance with ground water
 quality standards. Pennsylvania
 approaches ground water protection
 through permit  requirements for
 wastewater and stormwater discharges,
but has no separate ground water
 quality standards. In Texas, cement
plants are considered "minor" facilities
and are  not inspected annually like all
facilities that have major discharges,
unless the facility burns hazardous
waste, has a past record of
environmental violations, or has a
complaint filed against it. However,
Texas is considering requiring

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          Federal Register / Vol. 60, No. 25 / Tuesday, February 7,  1995  /  Rules and Regulations     7375
subsurface investigations at all facilities
that dispose of CIO) as part of an effort
to establish minimum technical
standards for the on-site management of
CKD.
  The Clean Water Act, through existing
effluent guideline regulations, NPDES
permits, water quality standards, and
existing and forthcoming storm water
permits, provide considerable authority
to control risks associated with
contamination of surface waters by the
management of CKD.13 However, EPA
has identified releases of CKD to surface
waters, and to ground water as well. In
its investigation of CKD waste, the
Agency uncovered 14 cases of water
damage, of which seven involved
ground water. Both ground water and
surface water damages were major
factors cited for including two CKD
disposal units on the CERCLA NPL.
Furthermore, only  17% of all CKD
management units  nationwide have
ground water monitoring systems, while
25 of 91 cement manufacturing facilities
{27 percent) were reported in a 1991
industry survey to  be located within one
milo of a public drinking water well.
  Based on the above analysis, the
Agency believes the following factors
warrant additional environmental
controls for CKD: (1) The general lack of
current regulations applicable to
contaminant discharges to ground water
for protection of human health and the
environment; (2) the general lack of
ground water monitoring systems at
CKD disposal units; and (3) the
existence of damages to ground water
and air that are persistent and
continuing, and for which no
requirements exist to address the risks
posed via these pathways.
  At the federal level, authorities exist
to address site-specific problems posing
imminent and substantial danger to
human health or the environment under
RCRA section 7003 and CERCLA
sections 104 and 106. However, the
Agency believes that cost-effective
controls that prevent contamination are
preferable to cleaning up after
contamination and damages occur.
C. Step 3: What Would Be the
Operational and Economic
Consequences of A Decision To
Regulate Under Subtitle C?
  The Agency has determined that
industry-wide regulation of CKD under
full Subtitle C, including land disposal
restrictions, would impose extremely
high costs on a substantial portion of the
  "In fact, Ito Agency believes that once the storm
 water permits aro fully implemented, no further
 water permits or regulations will be needed to
 address releases to surface water.
U.S. cement industry. While the Agency
believes that CKD waste minimization
and reclamation/recycling options exist
that could limit the cost exposure for
many plants, there is considerable
uncertainty and disagreement at this
time regarding their general technical
availability and ability to serve as low
cost substitutes for land management of
CKD.
  Thus, it is likely that full Subtitle C
regulation could impose compliance
costs in excess of 20 percent of sales
value for a significant part of the
industry and a resulting inability to
compete. Expected economic
consequences include a combination of
reduced domestic cement capacity and
production, sharply higher prices for
cement (particularly in interior regions
of the country), and substantially
increased imports. Substantial adverse
secondary effects on regional
construction industries and on
communities experiencing losses in
cement industry-related employment
could also be expected.
  Thus, based on the factors in RCRA
section 3001(b)(3) and section 8002(o),
full RCRA Subtitle C regulation is
unwarranted. However, the Agency also
believes that special Subtitle C
regulations tailored to local cement
plant conditions could be developed
using the broad regulatory flexibility
provided by RCRA, including section
2002, section 3001(b)(3)(C), and section
3004(x). These regulations could be
based on either technology or
performance standards or a combination
of both. These regulations could be
implemented at far lower cost at most
plant locations requiring controls to
prevent contamination of ground water.
In addition, regulations for CKD to
prevent releases to the air can be
improved or implemented under CAA
authority, and releases to surface water
are regulated under CWA authority.
These authorities provide the Agency
with additional flexibility to prevent
releases of CKD to the environment,
while at the same time minimizing the
burden on the regulated community.
  The cement industry's voluntary CKD
management proposal, submitted as a
comment on the RTC, tends to support
this conclusion. This tailored program
for constructing and operating CKD
monofills would include the following
site-specific features: a hydrogeological
assessment, water inflow modeling,
ground water monitoring, surface water
management in accord with NPDES and
storm water discharge permits, run-on/
run-off controls, fugitive dust emissions
control measures, personnel training, a
written closure plan, financial
assurance, and post-closure care,
including security and maintenance and
repair of the cap and vegetation as
suggested by periodic inspections. Thus,
special tailored standards under Subtitle
C of RCRA as well as under other
Agency authorities can be expected to
pose far less dire consequences for the
U.S. cement industry and the economy
as a whole than would regulation under
full Subtitle C.

IV. Regulatory Determination for
Cement Kiln Dust

  Pursuant to RCRA sections
3001(b)(3)(C) and 8002(o), EPA has
determined that additional control of
CKD is warranted. The Agency's
concerns about the harm to human
health and  the environment posed by
CKD suggest the need for regulation
under RCRA Subtitle C authority.
However, the Agency recognizes that
certain of these areas of concern (those
related to releases to air and surface
waters) are more appropriately
controlled under other EPA-
administered statutes. In order Jx> avoid
unnecessary duplication among
regulatory programs, EPA would rather
use the other existing regulatory
programs to control risks where
appropriate, and develop a more
creative, affordable, and common sense
approach that would control the adverse
effects of CKD.       ;
   The Agency will develop, promulgate,
and implement regulations for CKD as
necessary to protect human health and
the environment by using a variety of
statutes. This regulatory program will
apply to CKD from all cement
manufacturing facilities, regardless of
the type(s) of fuels used in the
manufacturing process, or  other factors.
In particular, the Agency will develop
and implement additional controls/
activities to limit releases to the air
using its Clean Air Act authority. For
surface waters, the Agency believes that
existing regulations and the planned
general permit under the NPDES
permitting program will provide an
adequate mechanism fpr controlling
point source discharges and for
managing storm water that contains
CKD. Thus, no additional water
controls, beyond these already planned,
are considered necessary.
   The Agency will evaluate the need for
additional controls for a limited number
of off-site uses of CKD (such as use as
a lime fertilizer on agricultural fields) in
its regulatory proposal. However, for
most off-site uses (e.g., in waste
stabilization or certain construction
uses) EPA's current record-indicates
there are no significant risks. The
Agency will restrict its focus to those

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 7376
Federal  Register / Vol. 60, No. 25  / Tuesday,  February  7, 1995 / Rules  and Regulations
 off-site uses for which there are
 significant risks.
   With respect to ground water, the
 Agency will use its authority under
 Subtitle C of RCRA to address these
 concerns. The Agency will use its broad
 authority provided by RCRA section
 2002(a), section 3001(b)(3)(C), and
 section 3004(x) to develop a program
 tailored to local cement plant conditions
 to control the specific risks identified
 while minimizing compliance costs.
 Until the Subtitle C tailored rules take
 effect, the Agency will retain the Bevill
 exemption.  The Bevill exemption will
 be removed when final regulations
 under RCRA authority take effect.
   The Agency believes that subjecting
 CKD waste to the full RCRA Subtitle C
 program would be prohibitively
 burdensome on the cement industry,
 and is not a feasible regulatory option
 under the factors cited in RCRA section
 8002(o). Although EPA at this time is
 not proposing the specifics of a RCRA
 regulatory program for CKD, EPA
 intends to apply only those components
 of Subtitle C that are necessary, based
 on our current knowledge of the cement
 industry and the human health and
 environmental concerns associated with
 CKD, to achieve a common sense result
 with respect to the hazards posed by
 CKD on a site-specific basis. The
 Agency anticipates that any such
 standards would be designed to be
 protective, yet minimally burdensome,
 and may not necessarily apply to all
 facilities or may not apply to all
 facilities in the same manner or to the
 same extent.
   The specific RCRA Subtitle C
 components that EPA believes may
 deserve particular scrutiny in
 developing a minimal, tailored
 approach, including site-specific
 considerations, include the following:
 facility-wide corrective action under
 section 3004(u); land disposal
 restriction requirements (LDRs) under
 sections 3004 (c), (d), (e), (f) and (g);
 minimum technology standards under
 section 3004(o); and permit
 requirements under section 3005. EPA
believes that most of the concerns
 addressed by the land disposal
restrictions program, permit
requirements, and the minimum
technology standards might be best
addressed through management
standards developed specifically for
CKD, and the Agency will carefully
study those possibilities as an
alternative to some or all LDRs and
minimum technology standards.
Moreover, because the costs for
including all solid waste management
units under facility-wide corrective
action at all cement plants may be
                            prohibitively burdensome on the
                            cement industry, EPA intends to explore
                            less burdensome, site-specific, tailored
                            approaches to identifying and correcting
                            problems that may occur from existing
                            CKD piles and preventing problems
                            arising from future CKD management.
                            This may include ground water
                            monitoring, a reliance on existing
                            response authorities under RCRA
                            section 7003 and CERCLA (or state
                            response authorities), or may focus on
                            site-specific factors, such as geography
                            and hydrology, in determining the need
                            for corrective action requirements.
                            Because most of the Agency's ground
                            water concerns are associated with
                            potential contamination in areas of
                            limestone with karst features, EPA will
                            focus on tailored standards for CKD
                            disposal in karst terrain. The Agency
                            believes that concerns about
                            contamination in non-karst areas can be
                            addressed through the adoption by
                            industry of good CKD waste
                            management practices.
                             In addition, EPA believes it is
                            appropriate to consider other RCRA
                            Subtitle C requirements to see if, and to
                           what extent, they are  necessary to
                           address the human health and
                           environmental concerns discussed in
                           this regulatory determination. In doing
                           so, EPA will also consider the costs
                           associated with those Subtitle C
                           requirements. EPA intends to develop a
                           regulatory program for CKD waste only
                           after full participation by the various
                           stakeholders. Consistent with the spirit
                           of that commitment, EPA at this time is
                           neither definitively limiting the scope
                           of, nor determining that any particular
                           elements necessarily will be included in
                           any proposed CKD regulatory program.
                             Finally, as discussed in the RTC, CKD
                           is often re-introduced into the kiln  as a
                           substitute for raw material in clinker
                           production. In the absence of the CKD
                           regulatory exemption, under certain
                           regulatory scenarios clinker produced
                           from re-introduced CKD could be
                           considered a hazardous waste under the
                           derived-from rule (40  CFR
                           261.3(c)(2)(i)). As part of the regulations
                           that EPA will promulgate as a result of
                           today's determination, EPA intends to
                           propose exclusion of clinker from
                           regulation as a derived-from hazardous
                           waste when CKD is reintroduced. When
                           reintroduced, CKD does not contribute
                           any constituents to clinker production
                           that are not already present in the
                           production process. Furthermore, at this
                           time, EPA has no indication that such
                           clinker poses unacceptable threats to
                           human health or the environment.
 V. Next Steps
   This section provides an overview of
 the Agency's plans for developing and
 issuing tailored regulations for CKD.
 The Agency recognizes that the
 •selection of a regulatory approach for
 CKD waste may involve difficult choices
 and policy decisions with wide-ranging
 economic and environmental
 implications. EPA believes that the
 development of regulations under
 multiple statutes (without duplication
 among regulatory programs) that
 adequately address the risks identified
 in the RTC, yet are economically
 affordable to the industry, should
 involve participation by all interested
 parties. To this end, EPA is announcing
 a regulation development process
 designed to encourage involvement by
 all stakeholders. The regulation
 development process will be conducted
 in similar fashion to the Agency's
 Common Sense Initiative, notably with
 early-;on participation by all
 stakeholders. This process will be
 directed towards development of
 environmentally protective regulations
 that provide for highly flexible methods
 to administer and implement them. The
 Agency's concern for minimizing the
 burden on State and local regulatory
 authorities and minimizing compliance
 costs and resource burdens on the
 regulated community will be an
 important principle in the regulation
 development process.
   EPA will begin this process by
 conducting a series of meetings with
 interested parties, including industry,
 government, and public interest groups.
 The initial meetings with the parties
 will be used to solicit technical
 information and approaches that will
 facilitate the Agency's analysis of
 regulatory options (e.g., CKD
 management technologies, cost
 information, and economic
 information). The Agency plans to
 conduct the initial meetings during the
 spring and summer of 1995. Before
 these meetings are held, the Agency will
 identify specific questions and issues on
 which the Agency would like to receive
 information.
  During the regulation development
 process, the Agency will use the
 information in the cumulative record of
 the RTC and regulatory determination,
 along with any new information
 received, to formulate its approach to
 developing tailored regulations for CKD.
 Before the rule is proposed, the Agency
 may publish an advance notice of
 proposed rulemaking (ANPR) to present
 and solicit comment on various
approaches to developing the
regulations.

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           Federal Register / Vol.  60,  No. 25  /  Tuesday,  February 7, 1995 / Rules  and Regulations     7377
VI. Regulatory Flexibility Analysis
  The Regulatory Flexibility Act (RFA)
of 1980 (Pub. L. 96-354), which amends
tho Administrative Procedure Act,
requires Federal regulatory agencies to
consider "small entities" throughout the
regulatory development process. Section
603 of the RFA requires an initial
screening analysis to be performed to
determine whether a substantial number
of small entities will be significantly
affected by a regulation. Under current
internal EPA guidance, however, any
economic impact is considered a
significant impact, and any number of
small entities is a substantial number.14
   In keeping with this policy, EPA has
performed an initial evaluation of the
domestic cement industry to determine
whether or not there are small entities
operating U.S. cement plants. The
results of this analysis show that 23 of
the 115 operating domestic cement
plants are owned and operated by
companies that are defined as small
entities.1* These 23 plants are owned/
operated by 16 of the  40 companies
comprising the domestic cement
industry.
   Because in today's regulatory
 determination EPA does not establish
new regulatory controls, the Agency has
 not conducted a full Regulatory
 Flexibility Analysis in support of
 today's action. EPA will, however,
 consider the potential impacts of the
 new regulations that will be developed
   14 USEPA, 1992. EPA Guidelines for
 Implementing the Regulatory Flexibility Act, Office
 of Regulatory Management and Evaluation, Office of
 Policy, Planning, and Evaluation.
   » The definition of small entity is established by
 the Federal Small Business Administration, which
 his promulgated regulations found at 13 CFR
 121,001. The criterion for determining small
 business status in tho hydraulic cement industry
 (SIC Coda 3241) Is company-wide employment of
 loss than 750 employees.
as a result of this action on these small
entities. In the process, the Agency will
examine potential impacts of regulatory
alternatives on these entities, and
identify and evaluate alternative
approaches that could mitigate such
impacts, as required by the RFA.

VH. Executive Order 12866
  Under Executive Order 12866 (58 FR
51735,10/4/93), the Agency must
determine whether the regulatory action
is "significant" and therefore subject to
OMB review and the requirements of
the Executive Order. The Order defines
"significant regulatory action" as one
that is likely to result in a rule that may:
  (1)  Have an annual effect on the
economy  of $100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or tribal governments or
communities;
   (2) Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
   (3) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or
   (4) Raise novel legal or policy issues
arising out of legal mandates, the
President's priorities, or the principles
 set forth in the Executive Order.
   Pursuant to the terms of Executive
 Order 12866, it has been determined
 that this rule is a "significant regulatory
 action" because it raises novel legal or
 policy issues arising out of legal
 mandates, the President's priorities, or
 the principles set forth in the Executive
 Order. This action was submitted to
 OMB for review. Changes made in
 response to OMB suggestions or
 recommendations will be documented
 in the public record.
VIII. Regulatory Determination Docket

  Documents related to this regulatory
determination, including EPA's
response to the public comments, are
available for inspectionln the docket.
The relevant docket numbers are: F—95—
RCKD-FFFFF for the regulatory
determination, F-94-RCKA-FFFFF for
the RTC and F-94-RC2A-FFFFF for the
NODA. The EPA RCRA docket is
located at the following address: United
States Environmental Protection
Agency, EPA RCRA Docket, Room
M2616,401 M Street SW., Washington,
DC 20460. The docket is open from 9
a.m. to 4 p.m., Monday through Friday,
except  for Federal holidays. The public
must make an appointment to review
docket materials. Call the docket clerk at
(202) 260-9327. Copies are free up to
100 pages and thereafter cost $0.15 per
page.
   In addition to the data and
information that was included in the
docket to support the RTC on CKD and
the Technical Background Documents,
the docket also includes the following
 documents:
   • Analysis of and Responses to Public
 Comments on the Report To Congress;
 and
   • Analysis of and Response to
 Comments on the Notice of Data
 Availability.

 List of Subjects in 40 CFR Part 261

   Environmental protection, Bevill
 exemption, Cement kiln dust,
 Incineration, Special wastes.
   Dated: January 31,1995.
 Carol M. Browner,
 Administrator.         ,
 [FR Doc. 95-2832 Filed 2-6-95; 8:45 am]
 BILLING CODE 6560-60-P

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