Tuesday
February 7, 1995
Environmental
Protection Agency
261
Regulatory Determination on Cement Kiln
Dust; Final Rule
-------
-------
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
-------
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.
-------
7368
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.
-------
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.''
-------
7370
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.
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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.
-------
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
-------
-------
------- |