Friday
August 20, 1999
Part III
Environmental
Protection Agency
40 CFR Parts 259, 261, 266, and 270
Standards for the Management of Cement
Kiln Dust; Proposed Rule
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Federal Register/Vol. 64, No. 161/Friday, August 20, 1999/Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 259, 261, 266, and 270
[FRL-6413-5 R1N 2050-AE34]
Standards for the Management of
Cement Kiln Dust
i AGENCY: Environmental Protection
; • .r,,f ;"!' Agency.
ACTION: Proposed rule.
I i SUMMARY: The Environmental Protection
Agency ("we" or EPA) is today
i proposing a creative, affordable, and
"" i;, common sense approach for the
management of cement kiln dust (CKD)
i waste under the Resource Conservation
, i and Recovery Act (RCRA). CKD would
L remain a non-hazardous waste provided
the following management standards are
met. First, for ground-water protection,
r the Agency is proposing management
If "'' standards which require a landfill to be
1'\ designed to control releases of toxic
i metal? to ground water at the point of
compliance. Second, to control releases
Of fugitive dust, the proposed
jit management standards would require
ipi,; , ,,.. persons managing CKD waste to cover
or otherwise manage the landfill, CKD
•;' handling areas, and CKD storage areas to
; control wind dispersal of fugitive CKD.
• ' Finally, this rule also proposes
concentration limitations on various
pollutants in CKD used for agricultural
purposes. This rule also proposes RCRA
Subtitle C regulatory standards for CKD
that is not managed according to the
, management standards described above.
DATES: EPA will accept public comment
on this proposed rule until November
18, 1999.
ADDRESSES: Commenters must send an
original and two copies of their
comments referencing docket number
F-99-CKDP-FFFFF to: RCRA Docket
Information Center, Office of Solid
11 , Waste (5305G), U.S. Environmental
Protection Agency Headquarters (EPA,
HQ), 401 M Street, SW., Washington,
DC 20460. Hand deliveries of comments
i should be made to the Arlington, VA,
address below.
t , f'li! ' Comments may also be submitted
jiii: : electronically through the Internet to:
rcra-docket@epa.gov. Comments in
electronic format should also be
identified by the docket number F-99-
CKDP-FFFFF. All electronic comments
'•• must be submitted as an ASCII file
avoiding the use of special characters
and any form of encryption.
Commenters should not submit
electronically any confidential business
Information (CBI). An original and two
copies of CBI must be submitted under
separate cover to: RCRA CBI Document
Control Officer, Office of Solid Waste
(5305W), U.S. EPA, 401 M Street, SW.,
Washington, DC 20460.
Public comments and supporting
materials are available for viewing in
the RCRA Docket Information Center
(RIC), located at Crystal Gateway I, First
Floor, 1235 Jefferson Davis Highway,
Arlington, VA. The RIC is open from 9
a.m. to 4 p.m., Monday through Friday,
excluding Federal holidays. To review
docket materials, it is recommended
that the public make an appointment by
calling 703 603-9230. The public may
copy a maximum of 100 pages from any
regulatory docket at no charge.
Additional copies cost $0.15/page. The
index and some supporting materials
are available electronically. See the
"Supplementary Information" section
for information on accessing them.
FOR FURTHER INFORMATION CONTACT: For
general information, contact the RCRA
Hotline at 800 424-9346 or TDD 800
553-7672 (hearing impaired). In the
Washington, DC, metropolitan area, call
703 412-9810 or TDD 703 412-3323.
For more detailed information on
specific aspects of this proposed
rulemaking and regulatory decision,
contact Bill Schoenborn, U.S. EPA
(5306W), 401 M Street, SW.,
Washington, DC 20460, (703) 308-8483,
or e-mail: schoenborn.william@epa.gov.
SUPPLEMENTARY INFORMATION : The index
and the following supporting materials
are available from the RCRA
Information Center:
1. Report to Congress on Cement Kiln
Dust (59 FR 709, January 6, 1994).
2. Regulatory Determination on
Cement Kiln Dust (60 FR 7366, February
7, 1995).
3. Notice of Data Availability:
Additional Data Available on Wastes
Studied for the Report to Congress on
Cement Kiln Dust; Request for
Comments. (59 FR 47133, September 14,
1994).
4. Correction to Notice of Data
Availability (59 FR 51440, October 11,
1994).
The index and some of the supporting
materials are available on the Internet.
Follow these instructions to access the
information electronically:
WWW: http://www.epa.gov/epaoswer/
other/ckd/index.htm
FTP: ftp.epa.gov
Login: anonymous
Password: Your internet address
Files are located in /pub/epaoswer.
The official record for this action will
be kept in paper form. Accordingly, EPA
will transfer all comments received
electronically into paper form and place
them in the official record, which •will
also include all comments submitted
directly in writing. The official record is
the paper record maintained at the
address in ADDRESSES at the beginning
of this document.
EPA responses to comments, whether
the comments are written or electronic,
will be published in a notice in the
Federal Register or in a response to
comments document placed in the
official record for this proposed
rulemaking. EPA will not immediately
reply to Commenters electronically other
than to seek clarification of electronic
comments that may be garbled in
transmission or during conversion to
paper form, as discussed above.
The contents of today's document are
listed in the following outline:
I. Statutory Authority
II. Background
A. Bevill Amendment
B. Report to Congress and Notice of Data
Availability
C. Regulatory Determination and Subsequent
Studies
1. Summary of Agency's Determination
2. Proposed Enforceable Agreement
3. The Need for CKD Management
Standards
4. New Analyses
D. Beneficial Use of Cement Kiln Dust
in. Discussion of Options to Address Risks
From Mismanaged CKD
A. State-Based Approach
B. Memorandum of Understanding
C. Two-Dust Approach
D. Develop Regulations Under Authority of
Subtitle D
E. Subtitle C Enforcement Without Listing
CKD
F. Tailored Standards Under Subtide C
G. States Adopt Appropriate Programs
H. Today's Approach—Exclude Properly
Managed CKD From Hazardous Waste
Listing
1. Develop Management Standards and
Exempt Properly Managed CKD From
Classification as a Hazardous Waste
(Management-based Listing)
2. Alternative Management-based Listing
3. Characteristic CKD
4. Apply Tailored RCRA Subtitle C
Standards to Improperly Managed CKD
IV. Proposed Management Standards
A. Protection of Ground-water Resources
1. The Need for Ground-water Protection
Standards
2. Applicability
3. Location Standards
4. Performance-Based Standard for the
Protection of Ground Water
5. Technology-Based Standards for the
Protection of Ground Water
6. Requirements for Ground-water
Monitoring
7. Corrective Action
B. Standards for Fugitive CKD Emissions
1. The Need to Limit Fugitive CKD
Emissions
2. Applicability
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45633
3. Performance Standard for the Protection
of Air
4. Technology-Based Standards for
Fugitive Dust Control
C. Closure
D. Post-Closure Care
E. Closure/Post-Closure Planning
Requirements
F. Financikl Assurance
G. Implementation
1. Notification, Recordkeeping, and
Reporting
2, Permitting Requirements
H. Applicability of the Boilers and Industrial
Furnaces Rule
I. Exemption from the Definition of
Hazardous Waste
1. Waste-Derived Clinker
2. Light-Weight Aggregate Kiln Dust
3. Use of CKD in Removal and Remediation
Actions
J. Final Rule Effective Date
V. Subtitle C Backup Standards
A. Subtitle C Requirements for Hazardous
CKD Waste
1. 3004(x)—Special Characteristics
2. Facility-wide Corrective Action
Requirement
3. Manifest, Recordkeeping, and Reporting
Requirements
B. Implementation of Part 259 and RCRA
Subtitle C Backup Standards
1. Enforcement
2. Removal of a Hazardous Waste
Designation
3. Alternative Approach to Structuring the
Performance Standards
VI. Standards for CKD Used as a Lime
Substitute
A. Summary
B. CKD Agricultural Use Risk Assessment
1. Risk Assessment Methodology
2. Human Health Criteria and Effects
3. Agricultural Use Practice Assumptions
4. Fate and Transport of Chemical
Constituents in the Environment
5. Uptake of Contaminants in Plant and
Animals
6. Receptor Scenarios and Exposure
Pathways
7. Lead Risk Assessment
8. Ecological Risk and Phytotoxicity
9. Risk Assessment Results
C. Approach to Establishing Limiting
Concentrations
1. Risk-based Approach—Proposed
Limiting Concentrations for Cadmium,
Lead, and Thallium
2. Risk-Based Approach—Proposed
Limiting Concentration for Chlorinated
Dioxins and Furans
3. Comparison to Agricultural Lime—
Proposed Limiting Concentration for
Arsenic
4. Peer Review of the Risk Assessment
D. Implementation of Controls for the
Agricultural Use of CKD
E. Alternative Standard to Limit Chlorinated
Dioxins and Furans in CKD
VII. Relationships Between this Action and
Other Regulatory Programs
A. Stormwater Regulations
B. Clean Air Act
VIII. State Authority - *. l"
A. Statutory Authority
B. Effect of Today's Proposed Rule ."
IX. Regulatory Requirements ''
A. Regulatory Impact Analysis Pursuant to
Executive Order 12866
1. Scope and Approach for Estimating
Economic Costs and Impacts
2. Summary of Cost and Impact Results
3. Benefits of the Rulemaking
B. Regulatory Flexibility Analysis '
1. Identification of Small Cement
Companies
2. Outreach
3. The Agency's RFA Screening Analysis
4. Agency Findings and Conclusions
Regarding SBREFA Impacts
C. Environmental Justice—Applicability of
Executive Order 12898
D. Protection of Children—Applicability of
Executive Order 13045
E. National Technology Transfer and
Advancement Act
F. Unfunded Mandates Reform Act
G. Paperwork Reduction Act
H. Executive Order 12875: Enhancing the
Intergovernmental Partnership
I. Executive Order 13084: Consultation and
Coordination with Indian Tribal
Governments
Appendix I to the Preamble—Justification for
CKD Listing
Appendix II to the Preamble—Reportable
Quantities
I. Statutory Authority
Section 3001(b)(3)(C) of RCRA, as
amended, required that, after
completing a Report to Congress (RTC)
mandated by section 8002 (o) of RCRA,
the EPA Administrator must determine
whether Subtitle C regulation of cement
kiln dust (CKD) waste is warranted. The
RTC documenting EPA's study of CKD
was signed by the Administrator on
December 30, 1993. EPA's regulatory
determination was published in the
Federal Register on February 7, 1995
(60 FR 7366). To implement that
determination, EPA is today proposing
rules using its authorities under sections
2002(a), 3001(b)(3)(C) and 3004(x) of
RCRA.
II. Background
On October 21, 1976, Congress
enacted RCRA (Pub. L. 94-580). Section
3001 of RCRA mandated that the EPA
Administrator "promulgate regulations
identifying characteristics of hazardous
waste, and listing particular hazardous
wastes which shall be subject to the
provisions of this subtitle.'' Section
3004 required the Administrator to
promulgate standards applicable to
owners and operators of hazardous
waste treatment, storage, and disposal
facilities.
In response to these requirements,
EPA proposed regulations for managing
hazardous'wastes under Subtitle C of :'
RCRA on December 18, 1978 (43 FR
58946). In this regulatory proposal, EPA
proposed to defer most of the RCRA
Subtitle C requirements for six'
categories of wastes, which it termed
"special wastes," until information
could be gathered and-assessed and the
most appropriate regulatory approach
determined. The special wastes were
wastes typically generated in large
volumes, and, at the time were thought
to possibly pose less risk to human
health and the environment than wastes
being regulated as hazardous wastes.
EPA identified CKD waste as one of
these "special wastes."1
A. Bevill Amendment
On October 12, 1980, Congress
enacted the Solid Waste Disposal Act
Amendments of 1980 (Pub. L. 96-482),
which added section 3001 (b) (3) (A) (Hi)'
(now frequently referred to as the Bevill
Amendment) to RCRA which, among
other things, temporarily exempted
"cement kiln dust waste" (along with
two other categories of waste) from
Subtitle C regulation, pending
completion of certain studies. These
amendments also added section 8002(o),
which required the Administrator to
study the adverse effects on human
health and the environment, if any, from
the disposal of "cement kiln dust
waste," and submit a Report to Congress
on its findings. The 1980 amendments
also added section 3001(b)(3)(C), which
required the Administrator to make a
regulatory determination, within six
months of the completion of the section
8002 (o) study, whether or not to
regulate CKD waste under Subtitle C of
RCRA.
In response to the 1980 RCRA
amendments, on November 19, 1980,
EPA published an interim final
amendment to its hazardous waste
regulations to reflect the provisions of
the Bevill Amendment (45 FR 76618),
which is codified at 40 CFR 261.4(b)(8).
Since that time, CKD has been exempt
from Subtitle C of RCRA—that is, this
material has never been regulated as a
hazardous waste under Federal law.2
B. Report to Congress and Notice of
Data Availability
To comply with the Congressional
mandate and to establish the factual
1 The other five proposed "special wastes"
specifically identified in the 1978 proposed rule
were mining waste: utility waste; phosphate rock
mining, benefication, and processing waste;
uranium waste; and oil and gas drilling muds and
oil production brines.
2 It should be noted here that under the RCRA
Subtitle C Boilers and Industrial Furnaces (BIF)
Rule, CKD generated by kilns that burn hazardous
waste as fuel may be ineligible for Bevill Exclusion
under certain conditions (see 40 CFR 266.112).
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"ill-
basis for EPA decision making regarding
the appropriate regulatory status of CKD
waste under RCRA, EPA published in
December 1993 its "Report to Congress
on Cement Kiln Dust" (RTC). In keeping
with the statutory requirements, the
, report addressed the following eight
study factors, as articulated at section
8002(o)ofRCRA:
(1) The source and volumes of [CKD]
generated per year:
(2) Present disposal practices;
(3) Potential danger, if any, to human
health and the environment from the
disposal of (CKD);
(4) Documented cases in which
danger to human health or the
environment has been proved;
(5) Alternatives to current disposal
methods;
(6) The costs of such alternatives;
(7) The impact of those alternatives on
the use of natural resources; and
(8) The current and potential
utilization of (CKD).
The RTC also included a review of
applicable State and Federal
regulations, so regulatory decisions
derived from the report would avoid
duplication of existing requirements.
In preparing the RTC, EPA developed
industry-wide and, in some cases,
facility-specific data and analytical
methods that reflect the complexity of
the issues addressed in the RTC.
Facilities that generate CKD waste vary
considerably in size, location,
operational aspects, and waste
management techniques. Moreover, to
examine in detail the broad array of
study factors mandated by RCRA
section 8002 (o), EPA developed
approaches and methods that were
sufficiently sophisticated to take into
account the special nature of CKD. The
specific methods that EPA used to
address each of the study factors are
described in detail in Chapters 3
through 9 of the RTC. Additional
information on the methods used and
supporting data are contained in the
Background Documents to the RTC
available from the RIC as discussed
above under the ADDRESSES section.
In 1992 and 1993, the Agency visited
20 cement manufacturing facilities in
the U.S. and obtained samples of
cement kiln dust generated by each
operation.3 The Agency conducted
chemical analyses on all of the samples
for a number of constituents. The
analytical results were used in the
development of the RTC, and they were
included in the Agency's RCRA docket
that supports the report. Late in the
study, one final set of metals analyses
were conducted on the cement kiln dust
samples as managed (e.g., stored,
disposed) by six of the 20 facilities
sampled. The Agency obtained the raw
analytical data too late for use in
developing the RTC, but did include the
data in the RCRA docket for public
inspection and comment.4
After issuance of the RTC, the raw
data were subjected to data validation
and the analytical results were finalized.
Although not used in the development
of the RTC, the Agency did consider
these data in the process of formulating
the CKD regulatory determination.
Accordingly, on September 30, 1994,
EPA published a Notice of Data
Availability (NODA) (see 59 FR 47133)
announcing the availability of the
additional analytical data. On October
11, 1994 (59 FR 51440), the Agency
published a Correction Notice which
identified certain errors and corrected
certain portions of the new data
pertinent to additional assessments of
potential risk from CKD waste.5
C. Regulatory Determination and
Subsequent Studies
1. Summary of Agency's Determination
On February 7, 1995, EPA issued the
determination required by section
3001 (b) (3) (C) of RCRA, finding that
additional control of CKD was
warranted (60 FR 7366). The Agency
stated that its concerns about the
potential harm to human health and the
environment posed by some CKD
suggest the need for some level of
regulation under RCRA Subtitle C
authority. The Agency also recognized
that certain of these areas of concern
(those related to releases to surface
waters) are more appropriately
controlled under other EPA-
administered statutes. In order to avoid
unnecessary duplication among
regulatory programs, EPA stated it
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 decided to develop,
promulgate, and implement regulations
for CKD as necessary to protect human
health and the environment by using a
variety of statutes. For surface waters.
3The CKD sampling trip reports can be found in
the RIC under the following numbers: Phase I
sampling trip reports (Nos. F-94-RCKA-S0001 to
S0066): Phase II CKD sampling trip reports (Nos. F-
94-RCKA-S0067 to S0073).
4 All of the analytical data on CKD can be found
in the Technical Background Document: Analysis of
CKD Generation and Characteristics Data, RIC
docket Nos. F-94-RC2A-S0017 to S0017.G.
5 Additional data on CKD waste studied in the
Report to Congress, including supplemental errata,
is available in the RIC docket under the general
identification'number F-94-RC2A-FFFFF. -
the Agency believes that existing
regulations and the planned general
permit under the National Pollutant
Discharge Elimination System (NPDES)
permitting program provide an adequate
mechanism for controlling point source
discharges and for managing storm
water that contains CKD. With respect
to ground water, the Agency decided to
use its authority under RCRA Subtitle C
provided by sections 2002(a),
300l(b)(3)(C), and 3004(x) to develop a
program tailored to local cement plant
conditions to control specific risks. In
the regulatory determination, EPA also
stated that it would develop and
implement additional controls under
the Clean Air Act (CAA), as necessary
to address concerns relating to air
emissions of CKD. Subsequently,
however, EPA has concluded that RCRA
authorities will better serve that
purpose. EPA's reasons for changing its
approach are discussed in detail in
Section VII. B. (Clean Air Act) below.
For most off-site beneficial uses of
CKD (e,g., in waste stabilization or
certain construction uses), EPA's
current record indicates there are no
significant risks. However, the Agency
also decided to evaluate the need for
additional controls for a limited number
of off-site uses of CKD (such as use as
a substitute for lime fertilizer on
agricultural fields) in its regulatory
proposal. The Agency stated that its
focus would be restricted to those off-
site uses for which there may be
significant risks.
EPA also stated in the regulatory
determination that specific RCRA
Subtitle C components deserve
particular scrutiny in developing a
tailored approach, including the
following: facility-wide corrective
action under section 3004 (u); land
disposal restrictions 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
stated that most of the concerns
traditionally addressed by the land.
disposal restrictions program, permit
requirements, and the minimum
technology standards would be best
addressed through management
standards developed specifically for
CKD.
2. Proposed Enforceable Agreement
On March 22, 1995, the U.S. cement
industry, through the American
Portland Cement Alliance (APCA),
submitted to the Agency a voluntary
management program for CKD. This
program was based on earlier work
APCA submitted to EPA in 1993. Under
this voluntary program, cement
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manufacturing facilities would manage
their CKD according to industry-
developed management standards, and
EPA would enforce those standards
through a contract rather than through
regulation. The proposed agreement
included provisions for compliance
standards, facility waste management
plans, a public participation process,
enforcement, and penalties. The
industry indicated that its intent was to
provide the Agency with a constructive
alternative to Subtitle C regulation that
would not stigmatize CKD as hazardous
waste.
The proposed enforceable contract
represented a new approach and raised
a number of legal and technical issues
which EPA evaluated. The Agency also
contacted various State agencies,
industry groups, and public citizen
groups to assess their positions on the
proposal. Although EPA in the past has
entered into unenforceable "voluntary"
agreements with other industries, the
Agency has determined that it does not
have inherent contract authority to enter
into enforceable agreements, although it
has authority to enter into enforceable
consent orders under the imminent
hazard provisions of RCRA section
7003, or section 106 of the
Comprehensive Environmental
Response, Compensation, and Liability
Act of 1980 (CERCLA). The cement
industry chose not to pursue
enforceable agreements under these
authorities because of concern that it
would be inappropriate to characterize
CKD as posing an imminent and
substantial danger to human health and
the environment.
3. The Need for CKD Management
Standards
In the RTC, the Agency described the
decision rationale used to make its
regulatory determination. The Agency
applied a step-wise approach that it
considered to be consistent with
Congressional intent that EPA consider
all of the study factors listed in RCRA
section 8002 (o). The methodology used
by EPA examined the need for CKD
management standards and the
economic consequences of imposing full
Subtitle C requirements on the industry.
(See 60 FR 7366 for a discussion of the
steps EPA considered in determining
the need for CKD management
standards.)
levels of concern. Information is
available to indicate that ground water
has been affected by CKD management
units. During the development of the
RTC, the Agency identified five cases of
damage to ground water, 10 cases of
damage to surface water and 21 cases of
damage to air from CKD waste
management units.6 Two additional
cases of ground water damage, two
additional cases of surface water
damage, and 16 additional cases of air
damage were subsequently identified in
the 1994 NODA and placed in the RCRA
docket in a technical background
document entitled Additional
Documented and Potential Damages
From the Management of Cement Kiln
Dust (See 59 FR 47133, September 14,
1994).7 In its Regulatory Determination,
' EPA stated these cases suggest that
despite State regulations damages
continued to occur with current (i.e., as
of 1994) CKD management practices.
Typically, ground-water damages
were the result of metals constituents
leaching into ground water from
unlined CKD landfills and waste piles.
Ground-water damages were of concern
to the Agency because relatively few
(17% in 1991) of all CKD management
units had ground-water monitoring
systems, while 25 of 91 cement
manufacturing facilities were reported
in 1991 to be located within one mile
of a public drinking water well.
Additionally, ground-water damage was
a major factor cited for including two
CKD disposal units on the CERCLA
(Superfund) National Priorities List
(NPL).
Damages to air were also identified
due to particulate emissions of CKD
from quarries, haul roads, and CKD
handling equipment. Most of these cases
involved visible emissions violations
(opacity) related to equipment
malfunctions associated with CKD
handling equipment (kilns, baghouses,
and screw conveyors). In the regulatory
determination, EPA characterized the
air releases as persistent, with many
facilities having more than one
violation. Also, significant releases of
airborne particulates were frequently
observed first-hand by Agency staff
during the course of the RTC study.8
b. Potential Risks to Human Health and
the Environment
a. Documented Evidence of Damage
The Agency determined that the
potential exists for hazardous
constituents, including metals, to
migrate from CKD waste sites and that
CKD has caused documented impacts
(and may continue to cause impacts) at
6 Based on subsequent review of the damage
cases, except for two reassessments (one air damage
case and one surface water damage case), the
Agency believes the information received in
comment does not contradict the Agency's basic
conclusions regarding any of die damage cases
identified in the RTC and subsequent NODA. A
detailed description of these damage cases is
available in Chapter 5 of the RTC.
7 RIC Docket Nos. F-94-RC2A-S0003 to S0015.
8 A general description of these emissions can be
found in the EPA CKD sampling trip reports Vvhich
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
documents and in two subsequent EPA
technical background documents
entitled 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)9
EPA assessed the risks of potential
releases of CKD contaminants to the
environment, both during the routine
management of the dust at cement
plants and during beneficial use of the
dust at other locations. The risk
assessment was intended to
complement the damage case study,
which provided actual instances of
environmental contamination,
sometimes attributable to management
practices and facility settings not
considered in the risk assessment. The
risk assessment was also intended to
cover the potential for certain more
subtle or long-term risks that might not
be evidenced in the damage case files.
One of the primary objectives of the
risk assessment was to evaluate, as
realistically as possible, the baseline
risks of CKD management practices at
actual sites. This was accomplished by
focusing initially on a sample of case-
study cement plants and off-site
beneficial use scenarios that appeared to
provide a reasonable representation of
the universe of sites where CKD is
disposed and used. For each sample
site, EPA evaluated the potential for
CKD contaminants to be released into
the environment, migrate to possible
human and ecological receptors through
a number of media and pathways (e.g.,
ground water contamination, surface
water runoff to streams or lakes,
windblown dust) and result in
exposures and adverse effects. This
evaluation included a combination of
qualitative analyses designed to
document and describe major factors
contributing to (or limiting) risks, and
quantitative modeling designed to
are located in the support section of the RIC docket
on the Report to Congress.
3 These documents are available in the RIC docket
(Nos. F-94-RCKA-FFFFF. F-94-RC2A-S0019 and
-S0019.A).
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estimate the magnitude of risks. The
analysis conducted for the RTC was
then expanded to incorporate significant
new information collected after the RTC
was published. This expanded analysis,
which is documented in EPA's technical
background document supporting the
Agency's 1995 Regulatory
Determination enabled EPA to
characterize risk levels for each pathway
at each plant for the facilities evaluated.
The Agency's analysis indicates that
there are potential risks warranting
concern, from both current on-site waste
management practices and certain off-
site beneficial uses. Based on these
analyses, EPA predicted only low or
negligible risk potential from on-site
management of CKD via direct exposure
pathways (e.g., ingestion of drinking
water) . The Agency did find potential
risk to human health via indirect (i.e.,
foodchain) exposure pathways,
however. Potential risks from exposure
to particulate matter were also
indicated.
The Agency modeled health risks via
indirect food-chain pathways (i.e., risks
from ingestion of contaminated crops,
livestock, or fish). These contaminants
reach food products via movement of
stormwater run-off and/or windblown
dust from uncontrolled CKD storage or
disposal areas to nearby water bodies
and farm fields. EPA's foodchain
pathway analysis estimated potential
individual cancer risks from 1 x 1O5 (1
in 100,000) to 1 x 10-3 (i in 1,000) for
highly exposed subsistence fishers and
farmers. Cancer risks of concern were
due primarily to exposure to arsenic in
CKD. Similar cancer risk levels due to
dioxins are also possible at some
additional sites. However, the Agency's
data base on dioxin levels in CKD was
not extensive enough to conduct a large
scale study. EPA's risk modeling also
estimated potential exceedances of non-
cancer hazard thresholds via indirect
exposure to the toxic metals cadmium,
chromium, thallium and lead, which are
present in CKD.
Finally, EPA's CKD analysis indicated
potential human health risks due to
exposure to the fine particulate matter
(£M) which characterizes CKD. Based
on the Agency's analysis, windblown
dust (PM less than 10 microns in size)
from uncontrolled CKD waste
management units could exceed EPA's
health-based fine particulate National
Ambient Air Quality Standard (NAAQS)
at plant boundaries and potentially at
nearby residences. Further analysis of
potential exposure to airborne PM from
cement kiln dust waste management
units was conducted as part of EPA's
population risk assessment. This
analysis also indicates that persons
living around cement plants may be
exposed to airborne PM concentrations
in excess of the NAAQS. An overview
of the population risk assessment is
provided in Section II.C.4.a. of this
preamble. A detailed description of that
analysis is provided in the technical
background document on population
risk assessment.
As previously noted, the Agency
predicted a negligible impact to ground
water and consequently low or
negligible risk to human health via
ingestion of contaminated drinking
water. However, a large percentage of
cement plants (and CKD management
units at those cement plants) are located
in areas of karst terrain,I0 many of
which may be underlain by bedrock
with hydrological characteristics
conducive to leachate transport to off-
site locations with limited filtration,
adsorption, and dilution. For reasons
discussed in the regulatory
determination, the Agency determined
that its ground-water model is not
suitable for modeling in karst terrain.
The Agency has evidence of ground-
water contamination at each facility
where ground-water data were available,
and thus conducted additional analyses
of ground-water transport.
The Agency conducted two additional
ground-water analyses to evaluate the
potential for ground water transport at
CKD management facilities. In the first
analysis, the Agency evaluated whether
the choice of ground water models
significantly influenced the results. In
this analysis, the Agency used EPA's
Composite Model for Leachate
Migration with Transformation Products
(EPACMTP) with the same parameters
used in the modeling to support the
Report to Congress. The Agency
concluded that the choice of models did
not significantly influence the
conclusions on ground water transport.
In the second analysis, the Agency
parameterized the thermodynamic
isotherms to reflect the major ions likely
to be present in CKD and the typical
pHs found in CKD. Based on this
analysis, the Agency concluded that the
composition of CKD leachate may make
metals more mobile. These analyses are
discussed in Section II.C.4.b, Additional
Ground Water Modeling.
The Agency's initial risk assessment
for off-site beneficial uses of CKD
indicated that most off-site uses do not
pose significant risks. Direct cropland
application, however, occurs at a
number of locations in the country.
Screening level analyses of agricultural
use described in the RTC and NODA
suggest that some CKD, at plausible
application rates, contains sufficiently
high concentrations of metals and
dioxins to cause food chain risks. Based
on these initial findings, EPA conducted
a more detailed analysis of potential
risks from use of CKD as an agricultural
liming agent. A summary description of
the agricultural use analysis and results
of that analysis are presented in Section
VI.—Standards for CKD Used as a Lime
Substitute.
c. Waste Characteristics
While CKD itself does not exhibit the
RCRA Subtitle C hazardous waste
characteristic of corrosivity (40 CFR
261.22)," EPA's data show that mixtures
of CKD and water often exhibit the
characteristic of corrosivity.'' In
particular, EPA data show that the pH
level in run-off from precipitation that
contacts CKD storage and waste piles
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 VIII ("Hazardous
Constituents") Part 261 of RCRA. For
many of the toxic metals, the total
concentrations in kiln dust were not
significantly different whether the dust
was generated in kilns that burn or do
not burn hazardous waste. Likewise, 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 those that do
not burn hazardous waste.
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. The calculated 2,3,7,8-
tetrachlorinated dibenzo-p-dioxins
toxicity equivalence (TEQ) values for
the facilities sampled by EPA ranged
from non-detected to 9 ppt.
d. Adequacy of Existing Regulations
In making its regulatory
determination, EPA evaluated State and
Federal regulations pertaining to CKD
waste and concluded that more
stringent regulation of CKD is necessary
based on current regulatory schemes.I2
10 Karst terrains are defined in this proposal at 40
CFR 259.16(b)(l) as areas where karst landscape.
with its characteristic hydrogeology and/or
landforms are developed.
i' EPA hazardous waste identification rules do
not include a characteristic or definition for solid
corrosives.
12 Supporting documentation for this analysis can
be found in Chapter 7 of the RTC— Existing
Regulatory Controls on CKD Management.
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45637
The Agency also 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. 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
continuous, and for which no
requirements exist to address the risks
posed via these pathways.
4. New Analyses
a. Population Risk
Subsequent to the Regulatory
Determination, the Agency calculated
population risks for individuals living
in the vicinity of cement manufacturing
plants that manage CKD onsite. The
assessment included population risks
from indirect, or foodchain, exposure
pathways and population effects from
exposure to airborne particles, but not
potential population risks from
beneficial use of CKD. This work builds
on earlier CKD analyses focusing on the
health risks to maximally exposed
individuals, presented in the RTC on
CKD and supporting documentation, the
1994 NOD A on CKD, and a background
document supporting the 1995 CKD
Regulatory Determination. A detailed
description of the population risk
assessment is provided in the Technical
Background Document: Population
Risks from Indirect Exposure Pathways,
and Population Effects from Exposure to
Airborne Particles from Cement Kiln
Dust Waste in the docket for this rule.
The assessment of population risks
from indirect exposure estimates the
number of cancer cases and the number
of people living near cement plants that
are potentially exposed above
noncancer effect thresholds through the
ingestion of vegetables, beef and milk,
and fish. For this analysis, existing
facility-specific individual risk
estimates were combined with facility-
specific data on populations potentially
exposed via indirect pathways to derive
facility-specific population risk
estimates. As a first step, information on
individual risk generated from a sample
of 82 facilities was used to identify and
eliminate from concern those facilities
that have'negligible potential for
significant population risk. For
remaining facilities, population risk for
the vegetable ingestion pathway was
calculated by combining prior estimates
of individual risk with estimates of
nearby farmers and backyard gardeners
based on census data. For the final step,
results from the 82 facilities for which
facility-specific information was
available were extrapolated to the total
universe of 108 cement facilities.
Population risk for the fish ingestion
pathway was estimated using existing
facility-specific individual risk
estimates along with numbers of
recreational fishers that could be
exposed, calculated based on fish yield
data from local streams. Facility-specific
results were then extrapolated to the full
universe of cement plants to obtain total
population risk for this pathway.
The Agency estimates that exposures
via indirect pathways occurring in
populations within five miles of all
cement plants nationwide potentially
result in a total of 0.04 excess cancer
cases over a 70-year period. That is,
exposures would potentially lead to
about 0.009 excess cancer cases in the
subsistence farmer population, and
about 0.03 excess cancer cases in the
"homegrown" population. Cancer cases
predicted for the recreational fisher
population are negligible. The total
population within five miles of all
cement facilities nationwide is
approximately 3.4 million.'* Thus, the
overall population cancer risk can be
characterized as follows: a total of
0.0006 excess cancer cases per year
could potentially occur within this
population of 3.4 million due to indirect
exposures.
For population noncancer effects,
EPA predicts that, across all populations
within five miles of all cement facilities
nationwide, a total of about 1,040
people are potentially exposed via
indirect exposure pathways to
contaminant levels above the hazard
index. That is, about 6 individuals from
the population exposed to
contamination from homegrown
vegetables are exposed to contamination
exceeding noncancer effects thresholds
(i.e., hazard index greater than 1). About
37 individuals from the subsistence
farmer population and about 1,000
individuals from the recreational fisher
population are estimated to be exposed
to contamination exceeding noncancer
effects thresholds. The overall
population noncancer effects can be
characterized as follows: a total of about
1,040 people, or less than one-tenth of
one percent, from among the population
of 3,4 million within five miles of all
cement plants nationwide is likely to be
exposed via indirect exposure pathways
to contamination exceeding noncancer
effects thresholds.
The assessment of population effects
from exposure to airborne particles
estimates the number of people
potentially exposed to fugitive CKD at
levels above the National Ambient Air
Quality Standards (NAAQS) for
paniculate matter (PM). Both the
existing NAAQS for coarse particles and
a new NAAQS proposed for fine
particles were considered. New
modeling of CKD emissions and
downwind dispersion was performed
for selected "high risk" cement plants,
substantially improving on the previous
work by using advanced modeling
techniques, estimating emissions from
all CKD handling stages rather than just
final disposal as modeled previously,
and considering the effect of terrain,
among other refinements. The
concentrations of airborne particles
were then overlaid on census block
grids to estimate populations potentially
exposed above the PMio NAAQS. The
Agency estimates that about 18 people
may be exposed to airborne PMio
concentrations in excess of the NAAQS
around the 82 facilities for which
facility-specific information is
available.14 As with the indirect
exposures analysis, EPA derived a more
complete picture of potential population
effects due to PM exposures by
extrapolating from results within the
•known universe to determine the
potential population effects for the full
universe of cement facilities. In sum,
EPA estimated that, across all 108
facilities, a total of between 18 and
4,118 people living within 500 meters of
the facility boundary may be exposed to
airborne PM concentrations in excess of
the NAAQS. It is not known what
percentage of the population exposed
above the NAAQS is likely to develop
any morbid effects because the dose-
response relationship for PM exposures
is not well defined.
13 This is an estimate based on site-specific data
for 61 facilities and extrapolated data for the
remaining 47 facilities.
14 The estimate of 393 people is based on an
evaluation of 52 of the 82 cement facilities: based
on analyses conducted previously the remaining 30
facilities were determined to have zero or negligible
effects in terms of PM exposures because they do
not manage CKD on-site (see methodology and
results presented in Technical Background
Document on Potential Risks of Cement Kiln Dust
in Support of the Cement Kiln Dust Regulatory
Determination. January 31,1995).
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Federal Register/Vol. 64, No. 161/Friday, August 20, 1999/Proposed Rules
b. Additional Ground-Water Modeling
Because the available damage cases
indicate the potential for impacts to
ground water in areas of non-karst
terrain (four of the 13 damage cases are
located in areas of non-karst terrain), the
Agency conducted additional ground-
water modeling to evaluate the potential
subsurface transport of metals in non-
karst terrain. The additional modeling
occurred in two phases. In Phase I, the
Agency tested the sensitivity of the
modeling by incorporating the same
assumptions used in the modeling to
support the Report to Congress in
EPACMTP, a ground-water model used
by EPA to conduct national
assessments. The intent of this exercise
was to determine whether model
selection significantly influenced the
conclusions regarding the subsurface
transport of constituents to receptor
locations. In Phase II, the Agency
evaluated the sensitivity of EPACMTP
to assumptions regarding the speciation
and adsorption of metals. In this
analysis, the Agency revised the
isotherms generated by MINTEQA2, a
geochemical speciation model,15 to
reflect higher pHs (as found in CKD
leachate), more appropriate ions in the
leachate, and a lower dissolved organic
carbon concentration in the leachate.
In Phase I of the additional ground-
water modeling, EPA evaluated the
sensitivity of its previous model
selection by estimating constituent
concentrations at well locations with
EPA's regional ground-water model,
EPACMTP. The results from this
analysis were then compared with the
results generated by the previous
modeling, which used MMSOILS.
EPACMTP combines a finite source
methodology with a metal-specific
procedure (using MINTEQA2) for
handling geochemical interactions that
affect the subsurface fate and transport
of metals. A complete description of this
methodology is available in EPA
Composite Model for Leachate
Migration with Transformation
Products: Background Document for
Metals, which has been placed in the
RCRA docket in support of this
proposed rule.16 The analysis
incorporated the same data and
assumptions used to support the
I5U.S. EPA, 1996a. Background Document for
Metals. EPA Composite Model for Leachate
Migration with Transformation Products
(EPACMTP). Volume 1: Methodology. U.S. EPA.
Office of Solid Waste, Washington. DC 20460.
'SU.S. EPA, 19966. EPA Composit Model for
Leachate Migration with Transformation Products
(EPACMTP) Background Document. U.S. EPA,
Office of Solid Waste. Washington, DC 20460.
ground-water modeling for the EPA's
1993 Report to Congress.
In general, the revised modeling using
EPACMTP predicted lower
concentrations of metals in ground
water for antimony, arsenic, chromium,
cadmium, and thallium and higher
concentrations for barium and
beryllium. At all facilities, the risk from
contaminated ground water predicted
by EPACMTP was negligible. Leaching
of lead was negligible in both modeling
exercises (the MMSOILS model
predicted that lead would reach the
water table at only one modeled
facility). From this analysis, the Agency
concluded that the selection of ground-
water models was not the most
significant reason for the inability of the
modeling to predict elevated metal
concentrations in ground water.
In Phase II of the additional ground-
water modeling, EPA evaluated the
sensitivity of the ground-water
modeling results to changes in
assumptions regarding the speciation •
and adsorption of metals in CKD
leachate. Specifically, EPA revised the
assumptions about pH, presence of
leachate organic acids, and ions present
in CKD leachate to generate new
partitioning coefficients (KdS) for five
metals: barium, beryllium, cadmium,
chromium, and lead. The Agency then
used the same modeling protocol for
EPACMTP described above to evaluate
the effects on ground-water fate and
transport of these five metals. A more
detailed description of the revisions to
the MINTEQA2 isotherms and the
caveats associated with these analyses
are available in the technical support
document Examination of Metals
Transport under Highly Alkaline
Conditions, which has been submitted
to the docket in support of this
proposed rule.
This additional analysis indicates that
migration of the metals may be sensitive
to the pH of the leachate and the
buffering capacity of the unsaturated
and saturated zones. Under highly
alkaline conditions with little or no
buffering, cadmium, chromium, lead,
barium, and beryllium are predicted to
be more mobile. In general, these metals
displayed a greater tendency to move
through the unsaturated zone and reach
the ground water. For example, the
analysis indicated that at four of the five
modeled facilities, elevated levels of
barium, beryllium, cadmium,
chromium, and lead were found in the
ground water within 10 meters of the
disposal unit. At four of the modeled
facilities, concentrations of lead
exceeded EPA's action level for lead of
0.015 mg/L within 10 meters and at one
facility, chromium exceeded its •
maximum concentration limit (MCL) of
0.1 mg/L by less than a factor of 10. In
addition, modeling indicated that
beryllium, cadmium, and chromium
would have concentrations within a
factor of 10 of their respective MCLs at
four facilities, one facility, and two
facilities, respectively.
c. New CKD Waste Characteristics Data
In an effort to further understand the
influence of hazardous waste burning
on CKD composition, EPA has
undertaken analyses of two new sources
of data on toxic metals in CKD. In June
1996, as part of a RCRA §3007 data
request, EPA collected information on
constituent concentrations in CKD from
seven cement plants within Region VII
that burn hazardous waste, to the extent
available for each of the five years 1991
through 1995. In October 1996, new
CKD constituent data from 15 cement
plants that do not burn hazardous
waste, collected during July and August
1996, were submitted to the Agency by
the Non-Hazwaste Burner CKD
Coalition (NHBCC).
The EPA Region VII data set consists
of analytical results from a substantial
number of CKD samples, varying by
plant, by constituent, and by year from
a few dozen to a few hundred per year.
All of these data reflect CKD generated
by the seven plants while burning
hazardous waste. The NHBCC data set
consists of analytical results from six to
32 CKD samples from each non-burning
plant. Although both data sets have
their individual nuances, the Agency
believes these data sets together
accurately reflect constituent values in
CKD for both types of kilns, and tend to
complement one another. Both data sets
are available in the RCRA docket for this
rule.
The NHBCC, Environmental
Technology Council (ETC), and local
citizen groups have asserted to EPA staff
that these new data demonstrate
statistically significant differences in the
concentrations of total metals between
CKD from kilns that burn conventional
fossil fuels ("non-hazardous waste
burner CKD") and CKD from kilns that
burn RCRA hazardous waste
("hazardous waste burner CKD"). The
NHBCC argues that these differences
affect the potential risk associated with
the disposal of CKD and that non-
hazardous waste burner CKD exhibits
only isolated elevated concentrations of
toxic constituents, hence relatively low
risk compared to hazardous waste
burner CKD. As explained in Section
HI.C. below, the NHBCC believes these
differences justify EPA imposing a
regulatory distinction between
hazardous waste burner CKD and non-
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45639
hazardous waste burner CKD, a so-
called "two-dust approach."
EPA has considered the NHBCC's
assertion of statistical differences
between hazardous waste burner and
non-hazardous waste burner CKD, but at
this point based on available data does
not accept their assertion of lower risk
for non-hazardous waste burner CKD
relative to hazardous waste burner CKD
for the following reasons. First, when
hazardous waste burner and non-
hazardous waste burner CKD data sets
are compared, for some toxic metals the
statistical distribution of concentrations
in each group significantly overlap. For
example, for the constituent arsenic,
CKD from ten out of 15 non-hazardous
waste burner plants have mean total
concentrations in excess of the mean
concentration of arsenic in hazardous
waste burner CKD averaged from the
seven hazardous waste burning plants
in EPA Region VII (1995 data); and CKD
from seven out of 15 non-hazardous
waste burner plants have mean arsenic
concentrations higher than the mean
concentration reported for hazardous
waste burner plants in the EPA NODA.
Similarly, for chromium, CKD from four
out of 15 non-hazardous waste burner
plants have mean total concentrations in
excess of the mean concentration for
chromium in hazardous waste burner
CKD averaged from the seven hazardous
waste burning plants in EPA Region VII
(1995 data). Because of this overlap,
EPA does not believe that all non-
hazardous waste burner CKD poses less
potential hazard than hazardous waste
burner CKD. Furthermore, a comparison
of means suggests constituent
concentrations for all toxic metals are
within the range of data reported in the
EPA NODA. EPA believes that the new
information supports the Agency's
previous conclusion that metals levels
in CKD are not substantially different,
whether generated by kilns that burn
hazardous waste or kilns that do not
burn hazardous waste.
Second, concentrations of the toxic
constituent thallium in non-hazardous
waste burner CKD are consistently
higher than in hazardous waste burner
CKD. The mean concentration for
thallium in non-hazardous waste burner
CKD from the 15 NHBCC plants (180.5
mg/kg) " is over three times higher than
the mean concentration for 31 non-
burning plants reported in the EPA
NODA (52.3 mg/kg), and 47 times
higher than the mean concentration in
hazardous waste burner CKD from the
seven EPA Region VII plants (3.8 mg/
kg). The NHBCC has argued'that
relatively higher concentrations of
thallium in non-hazardous \$aste*burner
CKD are not caused by fuels but by CKD
recirculation and, therefore, non-
hazardous waste burner CKD should not
be regulated because this material is
never disposed. The Agency believes
recirculation of CKD back into the
cement manufacturing process is
beneficial because recirculated CKD
would never be disposed. Forty-seven
out of 88 non-hazardous waste burner
plants, however, reported wasting CKD
in 1995, so the Agency remains
concerned that disposal of CKD with
elevated levels of thallium could still
pose a potential hazard to human health
and the environment.
• Third, the NHBCC data have not
addressed the cases of environmental
damage or PM]0 risks that form the basis
of the EPA's Regulatory Determination.
The Agency finds no basis for changing
the Regulatory Determination to regulate
only CKD from hazardous waste burning
kilns. The damage cases resulted from
on-site management of CKD in non-
engineered landfills, piles and ponds, at
plants that largely do not or did not
burn RCRA hazardous wastes. In
addition, CKD, regardless of fuels
burned, contains particles 10 microns in
size and smaller, and could potentially
pose risks to human health if released
through fugitive emissions.
EPA requests additional data on
hazardous waste burner and non-
hazardous waste burner CKD. If new
information warrants such action, the
Agency would re-evaluate its current
position on the appropriate levels of
control for hazardous waste burner and
non-hazardous waste burner. CKD.
17 The highest thallium values in CKD reported
from the 15 NHBCC plants are associated with
cement kilns that recycle over 90% of their CKD
back into the manufacturing process.
D. Beneficial Use of Cement Kiln Dust
It is likely that even with advances in
recycling technologies, some CKD will
need to be removed from kiln systems.
Because resources are lost when CKD is
permanently disposed, and because
disposal practices can be burdensome,
finding alternative uses for waste CKD
can help facilities avoid disposal costs
and generate additional revenue, while
at the same time reduce the amount
disposed of in landfills. Currently, CKD
is used beneficially for sludge-, waste-,
and soil-stabilization, land reclamation,
waste remediation, acid neutralization,
agricultural applications, such as a
fertilizer or lime substitute, and
construction applications.ls According
to responses from the 1991 Portland
Cement Association (PCA) Survey and
RCRA section 3007 requests, about
780,000 metric tons (860,000 tons) of
CKD were used beneficially in 1990, or
5.4 percent of the gross CKD generated
in 1990, and about 19 percent of the net
CKD generated for thatyear. This total
represents 9.5 percent of the 8.2 million
metric tons of CKD recycled directly
back into the kiln or raw feed system in
1990. Of the 780,000 metric tons, about
71 percent (670,000 metric tons) was
used for waste stabilization, 12 percent
(111,000 metric tons) for soil
amendment, 5.6 percent (53,000 metric
tons) as liming agent, nearly three
percent (25,000 metric tons) as materials
additives, about one percent (11,000
metric tons) as road base, and eight
percent (76,000 metric tons) for other
uses.
The American Society for Testing and
Materials (ASTM) standards advise that
use of CKD should be undertaken only
after the material's characteristics have
been properly evaluated with respect to
the intended application. ASTM also
recommends frequent performance
testing until the degree of variability has
been established.I9 The manner and
extent of CKD adaptation for beneficial
applications is in constant flux as
research and development of CKD use
continue to grow.
Most current off-site uses, such as for
waste stabilization or land application
as fill material, 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. As •
explained in the Regulatory
Determination, in light of the low
exposure potential, EPA believes that
these uses constitute environmentally
sound recycling and beneficial use.
Therefore, the Agency is not proposing
management standards for these
beneficial uses of CKD or to list as a
hazardous waste CKD used for such
practices. We are proposing that
beneficially used CKD is non-hazardous
waste. Thus, with the exception of CKD
used for agricultural purposes, EPA
solicits comments on these and other
potential uses that might constitute
environmentally sound recycling or
beneficial use.
As explained previously, the Agency's
risk assessment data on the use of CKD
as a lime substitute on agricultural
fields indicates that some small
percentage of CKD (roughly 5%) may
18Bhatty, J.I., 1995. Alternative uses of Cement
Kiln Dust. Portland Cement Association Publication
RP327. 18p. '
19 ASTM, 1991. Standard Guide for Commercial
Use of Lime Kiln Dusts and Portland CKDs. 1990
Annual Book of American Society for Testing and
Materials Standards. Volume 11.04. Method
Number D5050-90. pp. ,172-174.
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Federal Register/Vol. 64, No. 161/Friday, August 20, 1999/Proposed Rules
present risk to human health and the
environment and, therefore, the
agricultural use of CKD warrants
controls. Accordingly, in today's rule,
EPA proposes to limit concentrations for
arsenic, cadmium, lead, thallium and
chlorinated dibenzodioxins and
dibenzofurans in CKD used for
agricultural purposes. If used for
agricultural purposes, CKD with
concentrations of these substances in
excess of today's proposed limiting
concentrations would be considered a
listed hazardous waste.
III. Discussion of Options To Address
Risks From Mismanaged CKD
Today's proposal presents several
possible approaches, including the
Agency's preferred approach for
addressing the hazards presented by
CKD. EPA invites commenters to
address these approaches, so that EPA
can evaluate the Agency's preferred
approach not only on its own merits but
also in comparison to these alternatives.
If, when issuing the final regulation for
CKD, EPA were to rely on a
Memorandum of Understanding,
regulation exclusively under Subtitle D
of RCRA, the State-based approach, and
the Two-Dust approach presented
below, the Agency would have to revisit
the Regulatory Determination.
The Agency would more favorably
consider the State-based regulatory
approach or MOU if: (1) there were
more evidence that cement
manufacturing facilities have made
improvements to their CKD
management practices; (2) there was
greater agreement among all
stakeholders regarding appropriate CKD
management standards; (3) there was a
strong level of support from industry.
States, and other stakeholders for
movement toward an MOU or State-
based approach; and (4) the alternative
adequately considered the interests of
other parties with a stake in the
Agency's CKD rulemaking. In making a
final rule determination, EPA may
consider some combination of the
alternative approaches discussed.
A. State-Based Approach
The American Portland Cement
Alliance (APCA) has submitted a
proposal to EPA for a State-based
approach to cement kiln dust (CKD)
management. The main components of
APCA's proposed approach are listed
below, in chronological order:
(a) EPA Would Complete Work on
CKD Management Standards. EPA
would complete internal work, already
begun during discussions regarding
APCA's proposed enforceable
agreement, which is discussed above in
Section III.A.—State-Based Approach, to
refine the CKD management standards
for issuance as guidance as provided
below.
(b) EPA Would Publish Proposed
Guidance and "Backstop" Regulatory
Regime For Public Comment. APCA
proposes that EPA would publish a
Notice of Data Availability in the
Federal Register which would have two
separate components. The first
component would describe and
summarize the key components of the
CKD management standards, and
announce the public availability of a
complete copy of the CKD management
standards. APCA proposes that in the
Notice, the Agency would announce its
willingness to withdraw its earlier
Regulatory Determination if all of the
States in which CKD is land disposed
developed an adequate CKD
management program within two years.
The second component would be a
"backstop" proposed rule based on a
"conditional exclusion" or "contingent
management" approach in which RCRA
Subtitle C authority would not be
triggered unless the conditions of the
exclusion were violated. APCA
proposes that EPA would finalize the
proposal only if one or more States in
which CKD is land disposed do not
have an adequate CKD management
program within two years. EPA would
solicit public comment on all aspects of
the Notice.
(c) EPA Would Publish Final
Guidance In Response To Public
Comment. APCA proposes that one year
after publishing the initial guidance and
backstop proposal, EPA would publish
its "final" guidance in a subsequent
Federal Register notice in response to
public comments. In this notice, EPA
would also include an explicit time line
for the remaining steps in the State-
based approach.
(d) EPA Would Take Final Action
Regarding Inadequate State Programs.
Two years after publishing the initial
proposed guidance and backstop
proposal, APCA proposes that EPA
would publish another Federal Register
notice announcing its assessment of the
adequacy of State CKD management
programs. APCA proposes that if EPA
finds that such State programs are
adequate, the Agency would announce
withdrawal of its 1995 Regulatory
Determination. Conversely, if the
Agency finds one or more States with
inadequate CKD programs, APCA
proposes that EPA issue a final rule that
will be effective in those States. These
regulations would be based on a
conditional exemption approach in
which RCRA Subtitle C authorities
would not be invoked unless terms'of
the exemption were violated. For those
States with adequate programs, EPA
would withdraw its 1995 Regulatory
Determination.
The technical standards in today's
proposed rule reflect completed internal
work on appropriate £KD management
standards and could serve as the Notice
that APCA suggests in (b) above. In our
view, the Part 259 standards represent.
proposed final management standards
for CKD management, and the standards
proposed today under Part 261 could
form a "backstop rule." The Agency
solicits comments on APCA's proposed
State-based regulatory approach for CKD
management and on the details of State
programs affecting the management and
beneficial use of CKD. Both APCA's
proposed CKD management standards
that were submitted to the Agency as
part of the proposed enforceable
agreement, and a full description of
APCA's State-based approach are
available in the RIC in support of this
B. Memorandum of Understanding
Another option considered by the
Agency, in lieu of a detailed regulatory
scheme, would be to enter into a '
memorandum of understanding (MOU)
with the cement industry. As with
enforceable agreements, a MOU would
include specific standards for the
management of CKD. This approach is
not unprecedented.
In January 1994, EPA and the
American Forest and Paper Association
(AF&PA) negotiated a MOU regarding
the implementation of land application
agreements among AF&PA member pulp
and paper mills and the EPA.21 The
purpose of the MOU. was to develop a
stewardship program for the practice of
land application of pulp and paper mill
sludges. Each paper mill participating in
the program signed a "Land Application
Agreement" which established
standards and land management
practices for the mill's land application
of sludge. The MOU also provided for
annual materials monitoring reports to
be submitted to EPA, AF&PA member
outreach programs, and annual AF&PA
member surveys. The individual "Land
Application Agreements" specify,
among other things, dioxin/furan
concentration limits for land applied
sludge and receiving soils, application
rates, waste testing requirements, and
recordkeeping and reporting
requirements. MOU and "Land
Application Agreements" do not
20 The cement industry's proposed management
practices Aversion 6/1/5), see RIC docket No. F-99-
CKDP-S0031.
21 For a copy of the MOU. see RIC docket No. F-
99-CKDP-S0107.
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45641
provide for enforcement, including
citizen suits. Moreover, EPA, to date,
has not formally assessed the success of
the Agreements.
The Agency could consider a similar
approach to tailored management
standards and for monitoring the
management of CKD. The Agency
solicits comments on the advantages
and disadvantages of a program utilizing
either an enforceable agreement, which
is discussed above in Section III.A.—
State-Based Approach, or memorandum
of understanding to encourage
environmentally-sound CKD
management practices.
C. Two-Dust Approach
In meetings with EPA staff, the Non-
Hazwaste Burner CKD Coalition
(NHBCC) has argued that any proposed
regulatory mechanism for CKD, should
distinguish between CKD from kilns
that burn conventional fossil fuels (non-
hazardous waste burner CKD) and CKD
from kilns that burn RCRA hazardous
waste, both in oversight mechanisms
and in the contents of any minimum
management practices. The NHBCC has
argued that EPA should reimpose the
Bevill exclusion for non-hazardous
waste burner CKD, supplemented where
necessary and justified by an
appropriate voluntary program or
discretionary steps by the States.
According to the NHBCC, EPA should
regulate hazardous waste burner CKD in
the least burdensome manner consistent
with any relevant risks that the dust
may present.
The NHBCC has cited several points
in support of a two-dust approach. First,
the NHBGC has argued that less
stringent treatment for non-hazardous
waste burner CKD is justified on the
basis of new CKD waste characteristics
data which shows low risk (see Section
II.C.4.C.—New Waste Characteristics
Data, above). Second, the NHBCC states
that unit costs of managing stockpiled
CKD would increase to prohibitive
levels for some member companies
which are small businesses as defined
by the Small Business Administration.
According to the NHBCC, these small
businesses do not have any additional
revenue streams, unlike cement
facilities that burn RCRA hazardous
wastes, to offset the additional costs of
CKD management. Third, the NHBCC
has expressed concern that Federal
regulation of CKD under RCRA Subtitle
C will discourage beneficial re-use by
stigmatizing CKD as a hazardous waste.
The NHBCC claims that such regulation
would undermine public confidence in
CKD as a material suitable for reuse,
discourage the development of new
markets for CKD waste, and force up
compliance costs by compelling'"':
facilities which currently sell CKD to
stockpile it instead. EPA solicits
comment on the NHBCC's proposed
two-dust approach and requests
additional data on hazardous waste
burner and non-hazardous waste burner
CKD. If new information warrants such
action, the Agency would re-evaluate its
current position on the appropriate
levels of control for hazardous waste
burner and non-hazardous waste burner
CKD.
D. Develop Regulations Under Authority
of Subtitle D
Another option would be to issue
standards such as those described in
today's Notice solely as RCRA Subtitle
D requirements, relying on authority in
RCRA section 4004(a). Under this
approach the standards would be
enforceable by the public through
citizen suits. EPA would additionally
encourage States to adopt standards
developed under Subtitle D as
enforceable standards under State law,
but the Agency could not compel them
to do so. Such standards would not be
directly enforceable by EPA under the
enforcement authorities of sections 3007
and 3008. EPA could take enforcement
action under section 7003, if there is a
finding of substantial endangerment. In
contrast, the Agency is today proposing
a regulatory structure that would
provide the opportunity for Federal
enforcement against major violations of
the proposed standards, where
warranted (see §261.4(b)(8)(ii)(A)). The
Agency solicits comment on issuing
today's proposed standards solely as
RCRA Subtitle D requirements and
views on the need for Federal
enforcement of major violations of the
proposed standards.
E. Subtitle C Enforcement Without
Listing CKD
APCA has suggested that EPA could
adequately regulate CKD not managed
in accordance with today's proposed
Part 259 standards using RCRA
enforcement authorities without having
to identify the mismanaged CKD as a
RCRA hazardous waste. APCA asserts
that as long as EPA specified that a
violation of the Subtitle C backup
standards in Part 266 constitutes a
"violation of the requirements of RCRA
Subtitle C," then EPA and citizens
could enforce against those violations
under RCRA sections 3008 (a) and
7002(a) respectively. Similarly, APCA
asserts that EPA could enforce against
violations under RCRA section
3008 (d) (3) criminal enforcement
authority. APCA's approach is more
specifically set forth in a letter to EPA
dated August 24, 1998, and is available
in the RIC docket for this rule. EPA
invites comment on APCA's approach.
F. Tailored Standards Under Subtitle C
Another option available to the
Agency is to regulate-an CKD under
authority of Subtitle C, using the
tailored standards proposed today (i.e.,
the standards that would apply to CKD
which, under today's proposal, would
become hazardous waste because it is
being improperly managed)."Under this
approach, all CKD would be listed
hazardous waste and would be
regulated under the tailored standards
proposed today in Part 266 which
incorporates the standards proposed
today in Part 259.
The Agency solicits comment on the
option of regulating all CKD under
authority of RCRA Subtitle C and
whether certain provisions could be
eliminated or whether additional
provisions are needed.
G. States Adopt Appropriate Programs
Alternatively, States may come forth
with appropriate programs for managing
CKD. Such programs would have
requirements similar to those listed in
Sections IV., V., and VI. of today's
proposal, and include standards for
addressing risks posed by fugitive CKD,
standards for addressing risks to ground
water, standards for agricultural use of
CKD, and requirements for monitoring,
reporting, and corrective action. The
Agency believes there may be no need
to finalize a Federal program if States
with cement facilities that dispose CKD
adopt appropriate programs and
standards for managing CKD. The
Agency solicits comment on the option
presented in this paragraph of States
adopting appropriate programs.
H. Today's Approach—Exclude
Properly Managed CKD From
Hazardous Waste Listing
1. Develop Management Standards and
Exempt Properly Managed CKD From
Classification as a Hazardous Waste
(Management-based Listing)
Today's proposed rule would regulate
CKD under RCRA to address the
concerns identified in the RTC while
avoiding unnecessary requirements. The
approach taken is to establish
management standards for CKD and
make it clear that all CKD managed in
accordance with those standards is not
classified as a hazardous waste. CKD not
managed in accordance with the
standards, on the other hand, is
proposed to be listed as a hazardous
waste under 40CFR261.il.
The concept of regulating a waste if it
fails to meet certain standards forms the
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basis of many RCRA regulations. To
provide added flexibility for
implementation, EPA has previously
proposed options for conditional
exemptions from Subtitle C regulation
for certain refining wastes,22 and
promulgated conditional exemptions for
non-chemical military munitions.23
Today's proposed rule would limit
regulation of CKD under Subtitle C to
that CKD which is mismanaged.
The DC CircuirCourt of Appeals has
expressly upheld EPA's authority under
RCRA to establish a conditional
exemption from Subtitle C regulation for
wastes that, absent the exemption,
would be hazardous (see Military Toxics
Projectv. EPA. 146 F. 3rd. 948, D.C. Cir.
1998). For a more detailed discussion of
EPA's authority to establish a
conditional exemption from Subtitle C
regulation, see the discussion at 62 FR
6636-6637 of the Military Munitions
Rule preamble.
Accordingly, EPA is today proposing
to: (1) establish standards that define
proper management of CKD waste; (2)
exempt from classification as hazardous
waste all CKD managed in accordance
with specific standards proposed today;
(3) list mismanaged CKD as a hazardous
waste based on the criteria defined at 40
CFR261.11(a)(3)(i-xi); and (4) provide
tailored standards under Subtitle C for
the proper management of CKD that has
been mismanaged. The Agency's
evaluation of mismanaged CKD against
the listing criteria in §261.11 (a) (3) can
be found in Appendix I of this
preamble, while the associated
evaluation of reportable quantities for
releases of CKD can be found in
Appendix II of this preamble. Under the
proposed approach, CKD would only
become hazardous waste subject to
RCRA Subtitle C regulation when
persons managing the waste commit
egregious or repeated violations, such as
failing to install controls designed to
meet the performance standards, or
failing to manage CKD in units that
conform to specific default technology-
based standards. CKD managed in
accordance with today's proposed
standards would be outside the scope of
Subtitle C, and would not be considered
hazardous waste. The Agency believes
22 See 60 FR 57747. November 20,1995.
Hazardous Waste Management System:
Identification and Listing of Hazardous Waste:
Petroleum Refining process Wastes; Land Disposal
Restrictions for Newly Identified Wastes: and
CERCLA Hazardous Substance Designation and
Reportable Quantities.
23 See 62 FR 6621. February 12.1997. Military
Munitions Rule: Hazardous Waste Identification
and Management: Explosives Emergencies; Manifest
Exemption for Transport of Hazardous Waste on
Right-of-Ways and Contiguous Properties; Final
Rule.
the CKD management standards
proposed today will protect the public
from human health risks and prevent
environmental damage resulting from
current CKD disposal practices. The
standards are designed to prevent
contamination of ground water and
potable water supplies, and prevent
human health risks from inhalation of
airborne CKD and ingestion via food
chain pathways.
In developing the proposed
management standards for cement kiln
dust, EPA considered several factors.
First, and primarily, the Agency
believes that subjecting waste CKD to
the full RCRA Subtitle C program, while
protective, would be prohibitively
burdensome on the cement industry,
and is not a feasible regulatory option
under the factors cited in RCRA section
8002 (o). The full Subtitle C regulatory
program would be highly prescriptive
and provides little tailoring for site
specific conditions. Second, the CKD
management standards proposed today
are based on EPA's current knowledge
of the cement industry and the human
health and environmental risks posed
by CKD. The Agency considers these
technical standards to be sufficient to
control the specific risks identified
while eliminating unnecessary
compliance costs. EPA believes that for
CKD, imposing the additional
requirements of full Subtitle C would
add significantly to compliance costs
without a reduction in risks (see the
Regulatory Determination for CKD:
Potential Costs and Impacts of Subtitle
C Regulation, 60 FR 7371, February 7,
1995).24Third, the Agency desires to
encourage the common industry
practice of recycling of CKD waste back
into the industrial process, and promote
environmentally sound off-site
beneficial use of this material. 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. Classifying all CKD as
hazardous could prevent such uses
because of the expense resulting from
hazardous waste management
requirements.
EPA emphasizes, however, that if
persons mismanage CKD waste,
depending on the nature in which it is
mismanaged, the non-compliant waste
may become subject to Subtitle C
24 Supporting documentation for these cost
analyses can be found in the Technical Background
Document: Data and Analyses Addressing the Costs
of CKD Management Alternatives, RIC Docket Nos.
F-94-RC2A-S0018 and S0018.A).
requirements which would include
enforcement action for violations of the
proposed management standards (see
Section V. B.—Implementation of Part
259 and RCRA Subtitle C Backup
Standards). The Subtitle C requirements
applicable to such CKD would to some
extent be tailored as appropriate to
ensure proper management of CKD. For
example, the proposed Subtitle C design
requirements for CKD landfills are
different from those under the generally-
applicable Subtitle C regulations.
However, other generally-applicable
RCRA requirements would apply to
persons managing listed CKD as
hazardous waste. In particular, persons
managing listed CKD would be required
to obtain permits if they treat, store or
dispose of hazardous CKD, and to
manifest shipments of hazardous CKD.
Certain generally applicable RCRA
requirements would not be applied to
hazardous CKD, under the authority of
section 3004 (x) of RCRA. These include
land disposal restrictions, minimum
technology requirements, and facility-
wide corrective action requirements.
2. Alternative Management-Based
Listing
Another approach EPA considered
would be to list as a hazardous waste
only CKD that is managed according to
specific practices that are known to pose
significant risks to human health and
the environment. For example, the
management of CKD in unlined
landfills, under water or in direct
contact with the ground-water table,
without fugitive dust controls, or when
used for agricultural purposes without
proper controls, is likely to pose
significant risks to human health and
the environment. Under this approach,
CKD mismanaged in these specified
ways would be listed as hazardous
waste. One disadvantage to this
approach is that while it may prevent
those poor management practices
identified by the Agency at this time,
such a listing would require the Agency
to anticipate and identify all possible
ways that CKD could be mismanaged.
The Agency requests comments on the
advantages or disadvantages of this
approach over the approach proposed
today, including comment on additional
mismanagement practices that should
be identified and considered if such an
approach were adopted.
3. Characteristic CKD
CKD rarely exhibits a hazardous
characteristic. Under the rule proposed
today, characteristic CKD would, in
most cases, be regulated in the same
manner as other CKD. That is, it would
be exempt from the definition of
-------
"hazardous waste" so long as it is
managed in accordance with the
specified standards; if not so managed,
as described above, it would be subject
to tailored Subtitle C requirements. The
sole exception to this approach would
. be for CKD from kilns that burn
hazardous waste as fuel, which would
be subject to full (not tailored) Subtitle
C requirements if it fails the two-part
test in the Boiler and Industrial Furnace
Rule (a prime component being a
comparison to hazardous characteristic
criteria for metals). This approach
maintains in place the rules for CKD
from hazardous waste burners that exist
currently under 40 CFR 266.112.
4. Apply Tailored RCRA Subtitle C
Standards to Improperly Managed CKD
As described previously, CKD that has
been determined to be improperly
managed and no longer a non-hazardous
waste would be subject to Subtitle C
standards that are tailored to address the
risks presented by CKD. The
management standards applicable to
such CKD would be promulgated under
EPA's general authority for setting
management requirements for
• hazardous waste under sections
2002(a)(l), 3002, 3003, and 3004 of
RCRA.
Subtitle C requirements that apply to
hazardous waste generally, and are not
expressly modified in these tailored
standards, would apply to CKD or
facilities managing CKD. For example, if
a person managing CKD waste disposes
of non-exempt CKD onsite, she or he
would be required to obtain a RCRA
permit. However, EPA has authority
under section 3004 (x) of RCRA to alter
certain statutory requirements that
would otherwise apply to all hazardous
waste facilities, for wastes previously
subject to the Bevill exclusion and
newly being brought under Subtitle C
regulation. In particular, EPA has
authority to modify requirements
relating to land disposal restrictions,
minimum technology for landfill design,
and facility-wide corrective action. EPA
would rely on this authority to exempt
CKD from land disposal restrictions,
minimum technology requirements,'and
facility-wide corrective action
requirements as we are proposing today.
A more detailed discussion of the
reasons for this approach under section
section 3004 (x) can be found in Section
V.A. 1 .-3004(x)—Special Characteristics.
IV. Proposed Management Standards
A key element of the regulatory
system for CKD described above is the
standards to be established for CKD
management. As discussed above, as
long as CKD is managed according to
these standards, it would remain a non-
hazardous waste. Furthermore,
compliance with these standards would
be required under the tailored RCRA
Subtitle C requirements applicable to
any CKD that is mismanaged.
Because these standards are a
condition for maintaining non-
hazardous status, EPA proposes to
promulgate them at 40 CFR Part 259
separate from the regulations governing
hazardous waste. The tailored RCRA
Subtitle C regulations for hazardous
CKD waste are proposed to be
promulgated in 40 CFR Part 266; those
regulations will incorporate the Part 259
proposed standards by reference, in
addition to identifying the other Subtitle
C requirements applicable to hazardous
CKD.
A. Protection of Ground-Water
Resources
1. The Need for Ground-Water
Protection Standards
As tabulated in the background
document for today's proposed rule
titled Technical Background Document
on Ground Water Controls at CKD
Landfills, EPA has identified 13 cases of
ground water damage resulting from the
migration of potentially hazardous
constituents, including metals from
waste CKD.25 These damages reflect
CKD management practices from 1980
to 1995 at cement facilities across the
United States. While the Agency
acknowledges that CKD management
practices may have changed at
individual cement manufacturing sites,
EPA believes certain practices which
have led to damages to ground and
surface waters have not stopped and
occur today at other cement
manufacturing facilities nation-wide
The Agency considers damage to
mean that metal constituents have
contaminated ground water and/or
surface water above a Federal or State
standard (e.g., a maximum
concentration limit). Constituents of
concern from CKD that have been
released to ground and surface waters
include arsenic, chromium, and lead,
among others. When ground-water
exceedances do occur, the magnitude of
the exceedance is usually within two
orders of magnitude of the standard.
Environmental damage generally affects
25 Detailed writeups for each of the 13 ground-
water damage cases can be found in Chapter 5 of
the RTC. the Technical Background
Document:Additional Documented and Potential
rtf??8oS/r°m Ae Management of Cement Kiln Dust
(F-94-RC1A-S0003 to S0015); and the Technical
Background Document. Additional Documented
Damages to Ground Water From the Management of
cement Kiln Dust, which has been placed in the RIC
docket in support of this proposed rule.
the area in the immediate vicinity of the
waste disposal site. Environmental
damage has been identified both at
facilities that burn and those that do not
burn RCRA hazardous wastes
As documented in Table 2-1 of the
technical background-document on
ground water controls, the Agency finds
that many factors have contributed to
causing the release of CKD constituents
to ground water or the subsurface
environment at these damage case sites
Factors which are noted to have
contributed to the release of CKD
constituents into the sub-surface
environment include: (1) CKD disposal
below the natural water table or ground-
water infiltration into the waste unir (2)
the lack of a bottom liner or leachate
collection system, or both, to control
leakage from the waste unit; (3) surface
run-off or erosion transporting CKD
constituents to surface water bodies
and/or wetlands which can serve as a
source of ground-water recharge; (4) the
lack of an impermeable cover to control
percolation of rain water and/or surface
water run-off into the waste unit; and (5)
the presence of a shallow ground-water
flow system with conduit flow
characteristics (e.g., karst aquifer or
fractured bedrock aquifer). Notably, all
of the damage cases are associated with
CKD waste disposal units which did not
have bottom liners, leachate collection
systems, or impermeable covers in place
during the active disposal period.
The cement industry, because it uses
limestone, has a relatively high
percentage of CKD disposal sites located
in potential karst areas that is unique
compared to other industries the EPA
regulates. The Agency estimates that 78
out of 110 plants are underlain by
limestone formations in areas of
potential karst terrain. Based on
additional analysis performed in
support of today's proposed rule which
is documented in the technical
background document on ground water
controls, the Agency has increased the
estimate of the percentage of cement
plant sites located in potential karst
areas from about half to 71%.
The Agency believes these limestone
formations may have conduits with
hydraulic characteristics that potentially
allow leachate to rapidly enter ground-
water aquifers directly without
substantial dilution or attenuation As
documented in the technical report
supporting this rule titled Cement Kiln
Dust Migration Pathway, modeling
results for one CKD disposal site
(Facility A) did not predict
breakthrough of contaminants into the
ground-water table within 130 years
even under highly alkaline conditions
Ground-water and surface water
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releases, however, which are described
in the technical background document
for this proposed rule titled Additional
Documented Damages to Ground Water
From the Management of Cement Kiln
Dust, occurred at the same site in 1995,
within 30 years of first receipt of waste.
The faster ground-water migration time
can be attributed to fractures in the
limestone and an upper perched water
table. These factors were not accounted
for in the Agency's model, which
assumed laminar ground-water flow in
a homogenous granular bedrock. Nor
did the Agency's model account for
placement of CKD in direct contact with
ground water.
Nine of the 13 cases of groundwater
damage identified occurred at facilities
located in karst terrain. The Agency
believes the identification of additional
documented damage cases further
supports the qualification, noted in the
1995 Regulatory Determination, that
available ground-water pathway
modeling techniques are not applicable
in areas of karst terrain. For example, in
two documented damage cases,
excessive discharges of CKD-
contaminated waters can be attributed
to ground-water flow through fractured
bedrock. In another case, CKD disposal
in caverns has resulted in the discharge
of contaminated ground water into a
nearby surface stream. This does not
necessarily mean that ground-water
contamination will occur at all such
cement plants; however, it should be
regarded as a significant qualification to
the general findings in the RTC of low
or negligible risk from the ground-water
pathway risk modeling results. Also, as
noted in Section II.C.4.b—Additional
Ground-water Modeling, the
conclusions on ground water modeling
should be qualified by the additional
analysis conducted by the Agency. In
this analysis, the Agency concluded that
the typical ions in CKD and the highly
alkaline nature of the leachate are likely
to mobilize metals, including lead,
chromium, and beryllium, at levels
greater than previously predicted. In
addition to ground-water
contamination, contamination of surface
water and/or wetlands was also
identified as being a concern at twelve
of these damage case sites.
At many of these sites, environmental
damages are persistent and continuing.
The identification by the Agency of six
additional cases of damage since the
1995 Regulatory Determination
indicates that damage to ground-water
resources near CKD disposal sites may
be more common than originally
thought in 1995. EPA's latest
information indicates that remedial
measures have been initiated at only
seven of the ground-water damage case
sites, such as removal of contaminated
materials, installation of an
impermeable cap, and/or construction
of a seep/ground-water extraction and
treatment system. In two cases, ground-
water contamination has been found
that corroborates the surface water
damage cases which were reported in
the 1993 RTC and associated NOD A.
This suggests that, at these CKD
disposal sites, releases of contaminated
water are pervasive. Many of these sites
have been slow to implement remedial
measures to control off-site migration of
contaminants.
The Agency further believes ground-
water controls are warranted because of
the matrix in which constituents of
concern are bound. As mentioned in
Section II.C.4.b. (Additional Ground-
water Modeling) of this proposal, more
recent modeling of the highly alkaline
conditions shows that, in general, these
conditions increase the likelihood that
some constituents of concern, including
lead, chromium, and cadmium, may be
more mobile than previously
demonstrated. Specifically, the Agency
has noticed enhanced transport and
breakthrough to the water table for these
metals. These new ground-water
modeling results support the findings of
increased leachability of toxic metals, as
observed in the damage cases. As
reported in the RTC, the highly alkaline
nature of CKD-water mixtures is evident
in TCLP results, which commonly show
a resultant pH greater than 10 standard
units, even after adding acid.
Current waste management practices
appear to be inadequate to limit releases
of at least some metal contaminants.
According to a survey by APCA of 1995
CKD waste management practices, 65%
of all respondents indicated that their
landfills had liners, but only one
respondent (1.5%) used a synthetic
liner. Over 60% of respondents
considered bedrock or native clay or
shale materials to be liners. In 1990,
only 17% of all CKD management units
nation-wide had ground-water
monitoring systems. The American
Portland Cement Alliance reports that in
1995, 33 out of 94 cement
manufacturing facilities had "ground-
water monitoring systems." EPA,
however, could not verify whether the
monitoring systems were capable of
characterizing ground water beneath the
active CKD management unit(s). EPA
believes that a substantial portion of the
cement industry relies on inadequate
measures to control the release of
contaminants to ground water, and that
these practices have not changed
substantially or have only marginally
improved over the past several years.
Finally, as stated in the 1995
Regulatory Determination, the Agency
believes there are no current Federal
ground-water protection 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 concentration limits
(MCLs) for toxic contaminants,
including metals. However, drinking
water standards are only protective at
the point of consumption. Public water
supply wells, however, are protected
through the wellhead protection
program under the SDWA (41 U.S.C.
300h-7(e)).
2. Applicability
EPA is concerned that tqday's
proposal might create an incentive for
persons managing CKD waste to create
unneeded "units" or unnecessarily large
units prior to the effective date of the
final rule so that such units would be
deemed "existing units" and not be
subject to certain requirements of
today's proposed rule. To address this
concern, today's proposed definition of
"existing unit" specifies that expansions
would have to be consistent with past
operating practices, or operating
practices modified to ensure gpod
management. The Agency believes this
added provision ensures that persons
managing CKD waste will not create
new units or unnecessarily enlarge their
existing units to avoid compliance with
portions of today's proposed rule, but at
the same time, accounts for legitimate
landfill enlargements or changes in
facility operations resulting from
additional waste volumes. EPA solicits
comment on whether today's proposed
"regulatory distinction between lateral
and vertical expansions would
encourage owners and operators to
expand existing landfills laterally prior
to the effective date of the final rule to
avoid meeting the requirements
applicable to new units. EPA is
proposing ground-water protection
standards for all new and existing CKD
waste landfill units, except units closed
prior to the effective date of the rule.
Today's proposed performance and
technology-based standards would
apply to new units, and any expansion
of an existing CKD landfill unit, defined
as any lateral expansion of the waste
boundary of an existing landfill unit.
Any lateral expansion would be
considered a new unit and must meet
the requirements applicable to new
units. In contrast, any vertical
expansion of an existing unit would be
considered part of the existing unit and
subject only to those requirements
applicable to existing units. Under this
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proposed definition, any new area of
any existing unit that receives waste
after the effective date of this rule is an
expansion. All new and existing CKD
landfill units (i.e., the existing landfill
plus any expansion) must comply with
ground-water monitoring and corrective
action requirements proposed in today's
rule.
With regard to surface
impoundments, the Agency has found
few facilities that engage in this CKD
management practice. EPA solicits
comment on whether wet handling of
CKD in surface impoundments can be
conducted in a manner that meets the
performance standards contained in
today's proposed rule. EPA continues to
take the position that placement of CKD
in a surface impoundment that is in
direct contact with the ground-water
table would not be protective of human
health and the environment.
3. Location Standards
One set of standards for ground-water
protection relates to facility location.
EPA has identified locations that require
special restrictions and may influence
the location of landfills: sites below the
natural water table, floodplains,
wetlands, fault areas, seismic impact
zones and unstable areas, particularly
unstable areas in karst terrain. For other
wastes, such as municipal solid wastes,
the Agency has viewed these locations
as needing special protection (see 53 FR
33314, August 30, 1988). Accordingly,
EPA is proposing to impose location
standards for CKD disposal sites to
ensure protectiveness in the areas
described above. With one exception
which prohibits CKD disposal below the
natural water table, the Agency is not
proposing an absolute prohibition
against siting CKD landfills at these
locations; however, persons managing
CKD waste would have to make a
showing to .the EPA Regional
Administrator (or the State, in
authorized States), on a case-by-case
basis that their design is protective in
these environments.
a. Disposal Below the Natural Water
Table
Today's proposed rule includes a ban
on management of CKD in new units
located below the natural water table.
The natural water table is defined as the
natural level at which water stands in a
shallow ground-water well open along
its length and penetrating the surficial
deposits just deeply enough to
encounter standing water at the bottom.
This level is uninfluenced by ground-
water pumping or other engineered
activities.
EPA believes that this stringent
restriction is necessary to protect human
health and the environment because of
the poteritiahdamage caused byv
management of CKD at sites located
below the natural water table. The
Report to Congress, subsequent
Regulatory Determination, and
background documents to this proposed
rule all describe damages to ground
water and surface water resulting from
management of CKD at sites (e.g.,
quarries) that subsequently filled with
water after abandonment. As mentioned
above, two of these sites were once
listed on the NPL. In the Regulatory
Determination, the Agency also
identified surface water damages
resulting from problems with run-on
and run-off, but deferred to its
authorities under the Clean Water Act to
control surface water problems.
b. Floodplains
EPA is proposing that new and •
existing CKD landfill units may not be
located in a 100-year floodplain unless
a demonstration is made to the EPA
Regional Administrator (or the State, in
authorized States), that the landfill has
been designed so that it does not restrict
flow of the 100-year flood, reduce the
temporary water storage capacity of the
floodplain, or result in the washout of
solid waste so as to pose a hazard to
human health and the environment. The
Agency's rationale today is consistent
with the similar rule regarding
municipal solid waste landfill units
(MSWLFs) (see 53 FR 33314, August 30,
1988). Specifically, floodplains may be
adversely impacted by the disposal of
solid waste through potential flooding
damages including: (1) Rapid transport
of hazardous constituents by flood water
resulting in degradation of water qualify
downstream; (2) restriction of flood
water flow, causing greater flooding
upstream; and (3) reduction of the
storage capacity of the floodplain,
which may cause more rapid movement
of flood water downstream, resulting in
higher flood levels and greater flood
damages downstream.
Today's proposal would require that
. new and existing CKD landfill units
located in a 100-year floodplain be
designed and operated to prevent the
adverse effects described above. The
intent of today's proposed rule is to
require that CKD landfill units not cause
significant impacts on the flow and
water storage capacity of a floodplain
experiencing a 100-year flood. Site-
specific information should be used to
evaluate whether a facility has met this
standard.
Today's proposal defines the
floodplain using the 100-year flood-
level.26 This criterion would limit the
chance for site inundation and resulting
damages. The intent of this criterion is:
(1) To require an assessment of any new
or existing CKD disposal site or
expansion of any existing site in a
floodplain to determine the potential
impact of the disposal site on
downstream and upstream waters and
land; (2) to prohibit such disposal
activities if the site, as designed, may
cause increased flooding during the 100-
year flood; and (3) to require, if the
disposal site is located in a floodplain,
the use of available technologies and
methods to protect against inundation
by-the base flood, and minimize the
potential for adverse effects on water
quality and on the flood-flow capacity
of the floodplain.
c. Wetlands
Today's proposal provides that no
new CKD landfill unit may be placed in
wetlands,27 unless the person managing
CKD waste makes a specific
demonstration to the EPA Regional
Administrator (or the State, in
authorized States), that the new unit: (1)
will not result in "significant
degradation" of the wetland as defined
in the Clean Water Act section 404(b) (1)
guidelines, published at 40 CFR Part
230; and (2) will meet other
requirements derived from the section
404(b)(l) guidelines. Existing disposal
units, including vertical expansions that
are located in wetlands would continue
to operate.
EPA believes that these restrictions
are necessary to protect human health
and the environment because of the
special environmental significance of
wetlands and the potential damage
caused from siting CKD landfill units in
wetlands. The 1993 Report to Congress
and associated background documents
describe the environmental damage that
results by siting CKD landfill units
adjacent to wetlands. One case study
describes releases of toxic metals in
excess of State standards for warmwater
wildlife habitats, which potentially
could damage the ecological integrity of
wetlands adjacent to the CKD disposal
site. Another case study describes
26 To determine whether a CKD landfill unit is in
the 100-year floodplain persons managing CKD
waste should use flood insurance rate maps
(FIRMS) developed by the Federal Emergency
Management Agency.
27 For purposes of this section, wetlands means
those areas defined by 40 CFR 232.2(r): "* * »
areas that are inundated or saturated by surface or
ground water at a frequency and duration sufficient
to support, and that under normal circumstances do
support, a prevalence of vegetation typically
adapted for life in saturated soil conditions.
Wetlands generally include swamps, marshes, bogs
and similar areas."
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Federal Register/Vol. 64, No. 161/Friday, August 20, 1999/Proposed Rules
environmental releases of toxic metals
into the nearshore waters of Lake
Huron, which have filled in emergent
wetlands and damaged sensitive aquatic
habitats. Today's proposed rule would
minimize wetland degradation by new
CKD landfill units and expansions by
allowing siting in wetlands only in
cases where protective unit design has
been demonstrated.
Today's proposed rule adopts four
major requirements: (1) A practical
alternatives test (§230.10(a)); (2) the
assessment of compliance with other
applicable laws (§230.10(b)); (3) the
assessment of aquatic degradation
(§ 230.10 (c)); and (4) the assessment of
steps taken to minimize the adverse
effects of discharge (§230.10(d)). These
requirements parallel those in the
guidelines for wetlands protection
under section 404(b)(l) of the Clean
Water Act. The guiding principle is that
discharges should not be allowed unless
the persons managing CKD waste can
demonstrate that such discharges are
unavoidable and will not cause or
contribute to significant degradation of
wetlands.
Accordingly, to satisfy the four
requirements mentioned above, before a
CKD landfill unit may be sited in a
wetland the persons managing CKD
waste must make the following five
demonstrations to the Regional
Administrator (or the State in
authorized States). First, alternative
sites for the proposed landfill which are
located outside of wetlands must be
considered. An alternative site is
defined as one which does not involve
wetlands. For a person managing CKD
waste to site a CKD landfill in a
wetland, he must clearly rebut the
presumption that a practical alternative
is available. Second, a demonstration
must be made that siting in a wetland
does not violate any of the provisions of
the following applicable laws: (1) Any
applicable State water quality standard;
(2) any applicable toxic effluent
standard under section 307 of the Clean
Water Act; (3) the Endangered Species
Act of 1973; and (4) the Marine
Protection, Research, and Sanctuaries
Act of 1972. Third, a demonstration
must be made that siting the landfill in
a wetland will not cause or contribute
to significant degradation of wetlands.
Fourth, if siting in a wetland is still
considered after the first three
demonstrations discussed above, then
an additional demonstration must be
made that appropriate and practical
steps have been taken to minimize the
potential for adverse-effects of the
landfill on wetlands. Finally, it must be
shown that sufficient information is
available for making reasonable
determinations with respect to these
demonstrations; otherwise, the person
managing CKD waste cannot make the
demonstrations necessary to qualify for
the waiver to the ban. In today's
proposed rule, EPA has not set a
structure or time frame for approval by
the EPA Regional Administrator (or the
State in authorized States), in order to
give the regulatory authority maximum
flexibility in setting schedules.
Today's proposed rule addresses only
RCRA requirements. Nothing in today's
proposed rule affects any requirements
that facilities may have to comply with
under other programs, such as section
404 of the Clean Water Act which
affects disposal in wetlands.
d. Fault Areas
EPA proposes today that no new CKD
landfill units may be sited within 60
meters (200 feet) of a fault that has had
displacement in Holocene time, unless
a demonstration is made to the EPA
Regional Administrator (or the State, in
authorized States), that an alternative
setback distance of less than 60 meters
will prevent damage to the structural
integrity of the CKD landfill unit, and
will be protective of human health and
the environment. The Holocene is the
most recent epoch of the Quaternary
Period, a period of geologic time that
extends from the end of the Pleistocene
Epoch to the present and includes
approximately the last 10,000 years.
Regional geologic maps of Holocene age
faults are published by the U.S.
Geological Survey. EPA believes that
motion along faults may adversely affect
the structural integrity of CKD landfill
units, and that a 60-meter buffer zone is
necessary to protect engineered
structures from seismic damages.28
Earthquakes present a threat to public
safety and welfare in a significant
portion of the United States. Damage
and loss of life in earthquakes occur as
a result of surface displacement along
faults and ground motion, as well as
secondary effects of the shaking such as
ground or soil failure. Faults also
present concerns relating to failure of
containment "structures for CKD
landfills. Today's proposed standard is
designed to protect CKD landfill units
from deformation (i.e., bending and
warping of the earth's surface) and
displacement (i.e., the relative
movement of any two sides of a fault
measured in any direction) of the earth's
surface that occur when a fault moves.
28 A fault is defined as a fracture or a zone of
fractures in any material along which strata on one
side has been displeased relative to strata on the
other side. See United States Geological Survey,
1978, Preliminary Young Fault Maps,
Miscellaneous Field Investigation (MF) 916. "
Available information collected in
support of the MS WLF rule suggests
that structural damage resulting from
earthquakes is most severe for structures
located within 60 meters of the fault
trace, and decreases with increasing
distance away from the fault. However,
EPA believes that for some geologic
formations the 60 meter setback
distance may be overprotective.
Therefore, the Agency has allowed in
today's proposed rule the opportunity
for demonstrations to be made to4he
EPA Regional Administrator (or the
State, in authorized States), that an
alternative setback distance of less than
60 meters will prevent damage to the
structural integrity of the CKD landfill
unit. The Agency requests comment on
both the general concept of a location
restriction based on fault areas and the
specific 60-meter setback requirement.
e. Seismic Impact Zones
Today's proposal would require that
any new CKD landfill unit located in a
seismic impact zone be designed to
resist the maximum horizontal
acceleration in lithified material for the
site. The design features affected
include all containment structure's (i.e.,
liners, leachate collection systems, and
surface water control systems). Seismic
impact zones are defined as areas
having a ten percent or greater
probability that the maximum expected
horizontal acceleration in lithified
material for the site, expressed as a
percentage of the Earth's gravitational
pull (g), will exceed O.lOg (i.e., 98.0
centimeters per second per second) in
250 years. The term "lithified material"
refers to any consolidated or coherent,
relatively hard, naturally occurring
aggregate composed of one or more
minerals (e.g., granite, shale, marble,
sandstone, limestone, etc.). This
definition explicitly excludes loose,
incoherent masses such as soils or
regolith, and man-made materials such
as fill, concrete or asphalt. EPA's
rationale today is consistent with the
similar rule regulating MSWLFs, and
the Agency solicits comment regarding
whether it is appropriate to use the
same approach for CKDLFs.
EPA believes that the adverse impact
of siting CKD landfill units in seismic
areas justifies the need for a
comprehensive standard to prevent
releases from these facilities. Types of
failure that may result from ground
motion are: (1) Failure of structures
from ground shaking; (2) failure of
containment structures due to soil
liquefaction, liquefaction-induced
settlement and landsliding, and soil
slope failure in foundations and
embankments; and (3) landsliding and
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45647
collapse of surrounding structures.29
The background document supporting
this section of the rule provides
examples of the potential adverse effects
on CKD landfill units that may occur in
seismic impact zones. The Agency
believes that these failures may result in
contamination of air, ground water,
surface water and soil. Therefore, in
order to protect human health and the
environment, all containment structures
must be designed to withstand the
stresses created by peak ground
acceleration at the site from the
maximum earthquake based on regional
studies and site-specific analyses.30
The process designing earthquake-
resistant components may be divided
into three steps: (1) Determining
expected peak ground acceleration at
the site due to a maximum quake, based
on regional studies and site-specific
seismic risk analysis; (2) determining
site-specific seismic hazards (e.g., soil
liquefaction); and (3) designing the
facility to withstand peak ground
accelerations. Various methods for
accomplishing the above tasks
appropriate to individual CKD landfill
units should be selected by the person
managing CKD waste, subject to
regulatory agency approval.
f. Unstable Areas
EPA is also proposing that persons
managing CKD waste in new and
existing CKD landfill units located in
unstable areas must demonstrate the
structural integrity of the unit to the
EPA Regional Administrator (or the
State, in authorized States). This
demonstration must show that
engineering measures have been
incorporated into the unit's design to
mitigate the potential adverse structural
impacts on the structural components of
the unit that may result from
subsidence, slope failure, or other mass
movements in unstable areas. For
purposes of this section, structural
components include liners, leachate
collection systems, and final covers.
EPA is particularly concerned with
CKD landfill units located in areas of
karst terrain. For purposes of this
section, karst terrain means an area
where karst landscape, with its
characteristic hydrogeology and/or
landforms is developed. In karst terrain,
ground-water flow generally occurs
29 See Livermore Associated Research Group. Inc.
1982. Seismic Location Standards. Prepared for U.S.
Environmental Protection Agency, Office of Solid
Waste, Washington. D.C.
30To determine whether a CKD landfill unit is in
a seismic zone, persons managing CKD waste
should look at maps depiching the potential
seismic activity across the United States that have
been prepared by the United States Geological
Survey (Open File Report 82-1033).
through an open system with both
diffuse and conduit flow end member
components, and typically has rapid
ground-water flow velocities which
exceed Darcian flow velocities.31
Composed of limestone, dolomite,
gypsum and other soluble rock, karst
terrain typically has well developed
secondary porosity enhanced by
dissolution. Landforms found in karst
terrain include, but are not limited to,
sinkholes, sinking streams, caves,
springs and blind valleys. Karst terrains
always include one or more springs for
each ground-water basin, and
underground streams except where
ground-water flow is diffuse or the host
rock has megaporosity.
The regulatory definition of karst
terrain in today's proposal expands
beyond the obvious landform features
typically associated with mature karst
topography (e.g., sinkholes and caves).
Not all waste disposal sites overlying
carbonate aquifers exhibit mature
features of well-developed karst, but,
nevertheless, may overlie karst aquifers
with well developed conduit systems in
which turbulent flow regimes dominate.
Karst systems are commonly mantled by
thick regolith, or partially covered by
caprock which may exhibit a
topography that is not characteristic of
a traditional karst setting. If the
regulatory definition of karst relies
solely on apparent karst landform
features, persons managing CKD waste
at facilities situated in karst settings
with no apparent on-site karst features
could claim that their facilities are not
in karst terrain and, therefore, do not
overlie a karst aquifer. EPA solicits
comment on today's proposed definition
of karst terrain and the proposed
approach for identifying karst hydrology
within and around facility property.
The fundamental hydrologic
difference between karst and non-karst
terrain is ground-water flow velocity in
excess of velocities that are typical of
porous media (i.e., Darcian flow
velocities). A well developed karst
aquifer usually has a ground-water flow
velocity orders of magnitude greater
than a porous media aquifer. The most
important aspect of open karst systems
is that the dominant basin-wide
component is rapid turbulent ground-
water movement, that is non-Darcian
flow, through conduits to one or more
springs that can vary in magnitude
based on the size of the basin and
31 Darcian flow means ground-water flow which
follows Darcy's law, where the specific discharge is
proportional to the hydraulic gradient Darcian
ground-water flow is typically linear and laminar.
travels from 1 x 10-" to 1 x 102 centimeters per
second, and is characteristic of ground-water flow
through granular porous media.
seasonable ground-water conditions.
The magnitude of the springs are largely
a function of the size of the ground-
water basin and aquifer recharge.
Accordingly, before a CKD landfill
unit can be sited in a potential karst
terrain, a person managing CKD waste
must first verify and certify that the
facility is situated in a karst terrain
based on the revised definition of karst
terrain pursuant to §259.16(b)(l).
Today's rule proposes that prior to
construction of a CKD landfill in
carbonate terrain, a karst ground-water
investigation must be conducted to
define the direction of ground-water
flow, and points of discharge for the
karst ground-water basin (s) the facility
may affect. The karst ground-water
investigation shall include a dye tracer
study to identify springs which are
hydrologically related to the karst
ground-water basin potentially affected
by the unit. The verification of a karst
terrain may include, but not necessarily
be limited to, a-review of the available
literature. If the literature fails to
provide conclusive evidence that the
facility does not overlie a karst terrain,
a basin-wide field study should be
implemented, even if the discharge
points of the basin exist beyond the
facility boundary, to identify all
potential springs from which ground
water passing beneath the CKD landfill
unit may discharge. Certification may be
obtained from an independent
professional ground-water scientist,
from the EPA Regional Administrator,
or from the State, in authorized States.
After verification, the person
managing CKD waste must locate
background and intermediate sampling
locations, and downgradient springs or
ground-water monitoring wells for
detection monitoring pursuant to
§ 259.44(a) and §259.45(b) for
assessment monitoring. The person
managing CKD waste must establish a
ground-water monitoring system
pursuant to §259.41 (a) that incorporates
spring monitoring. The Agency believes
that this will generally necessitate: (1) a
field study to conduct an inventory of
karst features and locate springs; (2)
quantitative tracer studies to verify flow
path, time-of-travel, and duration of the
dye plume; (3) the regular monitoring of
chemographs and hydrographs of
springs and monitoring wells; and (4)
the development of a sampling strategy
based on the unique fate and transport
characteristics of the toxic constituents
in CKD and hydrology of the karst
aquifer, that is capable of detecting
releases from the CKD landfill unit.
EPA believes it is important to
include quantitative dye tracer studies
in any analysis of. karst in order to
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determine the time of travel and
duration of the dye plume. Such data
are essential inputs to construction of a
model of contaminant migration
through the aquifer. The contaminant
model is predicated on the dye behaving
similarly to a contaminant in its
dissolved phase or in suspension
adsorbed to colloids. Information on the
time of travel and duration of the dye
plume would be compared to data from
the storm hydrograph and chemograph
to identify optimum sampling intervals.
The Agency solicits comments on
practical difficulties with dye studies
and characterizing karst terrain, and
whether there are other alternative
approaches to ensure protection of
human health and the environment.
Some areas of karst terrain may be
prone to subsidence because of natural
subsurface conditions. Limestone and
dolomite are slightly soluble in water,
and the solution process can enlarge
existing fractures, joints and other voids
creating sinkholes and caves. Potential
caverns and karst pinnacles in the soil
and bedrock may eventually lead to
collapse or puncture of the landfill liner
due to excessive overburden or settling.
Accordingly, today's rule proposes that
the ground-water investigation shall
also include an inventory of karst
features within and around facility
property to identify areas prone to
surface subsidence or mass movement.
4. Performance-Based Standard for the
Protection of Ground Water
a. Overview
To provide maximum flexibility while
ensuring protectiveness, EPA is
proposing two types-of standards
relating to groundwater protection: a
traditional technology standard,
specifying landfill design and other
technical requirements, and a more
flexible performance-based standard for
facilities that wish to utilize a design or
technology that they believe will meet
the performance standard. To ensure
that it is complying with the standards,
a person managing CKD waste may
choose either to propose an alternative
approach to the EPA Regional
Administrator (or the State, in
authorized States), or may implement
the technology standards. EPA may
approve the alternative if the Agency
concludes the alternative will meet a
more general performance standard
described below.
With respect to ground water
protection, EPA is proposing that the
unit design must ensure that
exceedances of a ground-water
protection standard not occur at the
relevant point of compliance. This
standard would apply to the metal
constituents listed in Appendix VIII of
Part 261 (antimony, arsenic, barium,
beryllium, cadmium, chromium (total),
lead, mercury, selenium, silver, and
thallium). For each constituent, the
standard would be as follows: (1) if
available, the maximum contaminant
level (MCL) established under section
1412 of the Safe Drinking Water Act (see
40 CFR Part 141); (2) for constituents
with concentration levels lower than
background, the background level; and
(3) for constituents with no MCLs, an
alternative risk-based number or, (in an
unauthorized State) other appropriate
level established by the EPA Regional
Administrator. The Agency solicits
comment on the adequacy of using
MCLs to define limits for metals in
ground water at the point of
compliance, and whether or not health-
based numbers (HBNs) rather than
MCLs should be used as a primary
groundwater protection standard.
While, EPA's Subtitle D groundwater
protection standards are based on MCLs,
the Agency's hazardous waste listing
determinations are traditionally based
on HBNs. The primary difference
between MCLs and HBNs is that HBNs
are derived based solely on health
effects whereas several factors in
addition to health effects are considered
in the development of MCLs.
Development of MCLs requires an
evaluation of: (1) The availability and
cost of analytical methods; (2) the
availability and performance of
technologies and other factors relative to
feasibility and identifying those that are
"best'; and, (3) an assessment of the
costs of the application of technologies
to achieve various concentrations.
Therefore, MCLs may be more or less
conservative than HBNs corresponding
to the Agency's hazardous waste listing
risk range of 10E-4 to 10E-6 for
carcinogens and an HQ of 1 for non-
carcinogens.
EPA is proposing today that facilities
that wish to propose a design to comply
with the performance standard must
submit a proposed plan to implement
the performance standard for approval
by a regulatory agency. EPA will
provide such oversight in unauthorized
States. Authorized States, on the other
hand, may be more stringent and are not
required to adopt today's proposed
performance standard approach. If a
State chooses not to provide such
review, compliance with the technology
standards would be required (since
there is no mechanism for approving an
alternative approach). EPA strongly
urges States to provide the option of a
performance standard. Such a standard
would protect human health and the
environment and minimize the cost of
compliance by allowing facilities to
tailor ground-water controls to site-
specific conditions.
b. Performance Standard and the Point
of Compliance
The MCL is the maximum permissible
level of a contaminant in water which
is delivered to any user of a public
water system, and is a standard for
evaluating the potability of water. It is
the traditional measure used by the
Agency to protect the nation's public
drinking water supplies (see 40 CFR
Parts 141-143 National Drinking Water
Regulations). MCLs would be measured
at the point of compliance (POC),
defined as the closest practical distance
from the unit boundary, or at an
alternative point chosen by the EPA
Regional Administrator (or the State, in
authorized States). The alternative POC
must be on facility property and be no
more than 150 meters from the unit
boundary. In allowing for an alternative
POC, the Agency's rationale is to allow
greater flexibility for a State to set
design requirements based on the site-
specific factors (for example, see
§ 257.3-4(b)(1)(i) through (vii)).
5. Technology-Based Standards for the
Protection of Ground Water
EPA is proposing that design criteria
similar to those for MSWLFs under the
Subtitle D program (Solid Waste
Disposal Facility Criteria, 56 FR 50978,
October 9, 1991) be adopted with
certain modifications for ground-water
monitoring (see §259.40) and
remediation. For facilities complying
with the technology-based standards for
the protection of ground water, any new
CKD waste management unit or lateral
expansion of an existing unit must be
constructed with a composite liner and
a leachate collection and removal
system (LCS) that is designed and
constructed to maintain less than a 30
cm depth of leachate over the liner. The
composite liner must consist of two
components: an upper flexible
membrane liner (FML) with a minimum
thickness of 30-mil, and a lower
component consisting of at least two
feet of compacted clay with a hydraulic
conductivity of no more than 1 x 10~7
cm/sec. In selecting this uniform design,
EPA's goal was to identify one that
would provide adequate protection in
all locations.
The Agency believes the technology-
based standards proposed in today's
rule will be protective of ground-water
resources. Liners will prevent leachate
from seeping from the landfill and
entering the aquifer. The FML must
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45649
have a minimum thickness of 30-mils
and be installed in direct and uniform
contact with the lower clay component
to ensure adequate liner performance,
including being able to withstand the
stress of construction (see U.S. EPA
RREL, Lining of Waste Containment and
Other Impoundment Facilities EPA/600/
2-88/052. September 1988). Compacted
clay liners must be at least two feet
thick to ensure a high probability of
having a hydraulic conductivity of 1 x
10 ~7 cm/sec. Functionally, both the
FML and lower clay component are
necessary to retard the migration of
contaminants into the subsoil. The FML
component would provide a highly
impermeable layer to maximize leachate
collection and removal. The compacted
clay liner would adsorb and attenuate
pollutants in the event of FML liner
failure.
A LCS is necessary to relieve the
hydraulic pressure within the landfill
which could drive leachate migration
through the base of the landfill. LCS
design normally consists of a permeable
material placed on a sloping surface so
as to allow leachate to be removed and
collected. Large units may also have a
pipe drainage system. Sloping the LCS
towards a sump minimizes any
downward flow, and reduces the
amount of leachate leaving the LCS.
The Agency seeks comments on the
effectiveness of various liner
thicknesses and materials in preventing
the migration of the hazardous
constituents of CKD to groundwater. Of
particular interest to the Agency is the
effectiveness of use of CKD as a liner or
cap material. CKD may be a suitable
material for use as a liner or cap
material because of its cementitious
properties. Studies on CKD obtained by
the Agency suggests that very low
hydraulic conductivities (less than 1 x
10 -7 cm/sec) are readily achievable in
the laboratory, and in field trials using
heavy equipment to compress CKD to
high densities.32 However, the Agency
also has contravening information from
one site visit and two case studies
where CKD has been used as a cap
material33 which suggests that
compaction control is difficult to
maintain over an area that is acres in
size. Nevertheless, EPA is not proposing
today that CKD be banned from use as
a liner or cap material. Rather, it can be
used as part of a unit design if the
person managing CKD waste can
demonstrate that the design meets the
performance standard for ground water,
including establishing that the material
will maintain integrity over long periods
of time and, therefore, has a low
potential for release of contaminants.
32 See Todres, H.A., 1992. Cement Kiln Dust:
Field Compaction and Resulting Permeability.
Research and Development Bulletin RD106T.
Portland Cement Association. Skokie. Illinois. 47p:
and. Todres, H.A.. Mishulovich. A., and Ahmed. J.
1992. Cement Kiln Dust Management: Permeability.
Research and Development Bulletin RD103T,
Portland Cement Association, Skokie, Illinois. 9p.
33 See Spectra Engineering. P.C.. 1995. Lehigh
Portland Cement Company, Alsen Dust Disposal
Facility, Closure Certification Report. Prepared for
Lehigh Portland Cement Company, Cementon Plant.
Cementon. New York. See also letter from Thomas
M. Polasek, P.E.. Michigan Department of
Environmental Quality, to Frank Davis, Lafarge
6. Requirements for Ground-water
Monitoring
EPA is proposing that ground-water
monitoring be required for all new and
existing CKD management units, to
detect the presence of regulated
constituents in the ground water. The
ground-water monitoring and corrective
action requirements proposed today are
based on requirements promulgated
under Part 258 for MSWLFs and
hazardous waste regulations under Part
264—Subpart F for Solid Waste
Management Units. The ground-water
monitoring system must include at a
minimum one up gradient and three
down gradient wells. The down gradient
wells must be located not farther than
150 meters from the unit boundary at
the relevant POC specified by the EPA
Regional Administrator (or the State, in
authorized States). The ground-water
monitoring system must be capable of
ascertaining the quality of background
ground water that has not been affected
by releases from the unit, and assessing
the quality of ground water passing the
relevant POC, as certified by a qualified
ground-water scientist. The ground-
water monitoring program must include
consistent sampling and analysis
procedures that are designed to ensure
monitoring results that provide an
accurate representation of ground-water
quality at the background and down
gradient wells.
For facilities located in karst terrain,
EPA is also proposing that the ground-
water monitoring strategy include,
where necessary, springs which are the
ultimate discharge points of the karst
ground-water basin in which the facility
is situated. In karst terrain, point-of-
compliance ground-water monitoring
wells may not detect a point source
release from a CKD management unit
based on failure of the monitoring wells
to intersect the conduit through which
the contaminant plume passes. While
monitoring wells are appropriate, they
are not fail-safe. Consequently,
discharge points of the karst ground-
Corporation, re: Consent Judgment Compliance.
October 10, 1996.
water basin should be incorporated into
the overall monitoring strategy to detect
a release. In today's rule, EPA is
proposing that the EPA Regional
Administrator (or the State, in
authorized States), in addition to
specifying the relevant POC, may also
specify ground-water monitoring at
discharge points of the karst ground-
water basin potentially affected by
releases from the CKD waste
management unit.
EPA is proposing two types of
monitoring: detection monitoring and
assessment monitoring. Under proposed
§ 259.44, persons managing CKD waste
in a CKD waste management unit will
be required to undertake a ground-water
detectio.n monitoring program, similar
to that described under §258.54 of the
MSWLF rule. In a departure from the
MSWLF rule, EPA is proposing to
require detection monitoring only for
the following parameters: pH,
conductivity, total dissolved solids,
potassium, chloride, sodium, and
sulfate. These detection parameters are
easily measured and should provide a
reliable indication of inorganic releases
from the CKD waste management unit to
ground water. The Agency solicits
comment on the adequacy of these
detection parameters for monitoring
releases and whether metal constituents
are necessary.
If detection monitoring indicates a
statistically significant increase over
background for one or more of the
detection parameters listed above, under
proposed §259.45, a person managing
CKD waste is required to implement an
assessment monitoring program, similar
to that described in §258.55 of the
MSWLF rule. In another proposed
departure from the MSWLF rule, today's
proposed rule does not require a scan
for the hazardous constituents listed
under part 258, Appendix II. Instead
persons managing CKD under today's
proposed rule would be required to
sample and analyze the ground water
for only the inorganic constituents listed
in Appendix VIII of Part 261 (aritimony,
arsenic, barium, beryllium, cadmium,
chromium (total), lead, mercury, nickel,
selenium, silver, and thallium).
Because this proposal requires
ground-water monitoring at new and
existing CKD landfill units, today^s
action effectively prohibits the location
of such units in areas where subsurface
conditions prevent monitoring of
subsurface contaminant migration from
the landfill unit. EPA anticipates that
the Regional Administrators (or
authorized States) will not issue an
operating permit for CKD landfill units
located in areas where subsurface
monitoring is impossible. Geologic
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settings that could preclude effective
ground-water monitoring include areas
of limestone bedrock in mature karst
settings, with complex networks of
conduits, fractures, and joints which
impede accurate prediction of ground-
water flow. The Agency considers it the
responsibility of the persons managing
CKD waste to prove that a landfill can
be effectively monitored.
7. Corrective Action
Today's proposal establishes
corrective action steps similar to
§258.56 of the MSWLF rule. Within 90
days of finding that any of the part 261
inorganic constituents (see previous
section) have been detected at a
statistically significant level exceeding
the ground-water protection standards
as defined under § 259.45 (h), the
persons managing CKD waste must
initiate an assessment of corrective
measures. Such an assessment must be
completed within 90 days, or within an
alternative period of time decided by
the EPA Regional Administrator, in
accordance with §259.46. Today's
proposal allows for swift remediation of
a ground-water problem, yet provides
flexibility for selecting and
implementing the corrective remedy.
Under proposed § 259.47 and
§ 259.48, the selection of a remedy and "
implementation of, the corrective action
program must be completed in
accordance with those procedures
which are similar to those-enumerated
in 40 CFR 258.57 and 258.58 for
MSWLFs. These requirements only
apply to those hazardous constituents
that are likely to be present in CKD as
previously described. An exceedance of
today's proposed ground-water
protection standards would not
immediately result in classification of
such CKD as mismanaged. If a person
managing CKD waste, however, failed to
take the necessary corrective action after
detecting an exceedance, CKD would be
considered mismanaged and, therefore,
hazardous waste. The Agency solicits
comment regarding the time periods in
which remedial activities must be
initiated, and whether or not today's
proposed minimum time periods are
appropriate given the widely varying
circumstances likely to be encountered
at facilities requiring corrective action.
In today's rule the Agency is not
proposing facility-wide corrective action
standards for the management of CKD.
Instead, EPA proposes to require
corrective action at units which are
actively managing CKD. EPA believes
that the costs associated with requiring
corrective action at all solid waste
management units that may happen to
be located at a CKD facility make it
inappropriate to impose such a
requirement. Where releases from such
units have occurred, other state law
authorities and the Federal imminent
hazard authorities under section 7003 of
RCRA or section 106 of CERCLA, will be
adequate to address any threats to
human health and the environment.
(The handling of corrective action at
facilities that become subject to today's
proposed Subtitle C standards is
discussed in Section V.B.—
Implementation of part 259 and RCRA
Subtitle C Backup Standards.)
B. Standards for Fugitive CKD Emissions
1. The Need to Limit Fugitive CKD
Emissions
In the Agency's follow-up work
leading to the September 1994 NOD A
(see 59 FR 47133, September 14, 1994),
EPA found evidence of possible risk to
human health due to the fine particulate
nature of inhaled dust. Particulate
matter is of health concern because fine
particles such as CKD can penetrate into
the sensitive regions of the respiratory
tract and cause respiratory illness.
Negative effects associated with
exposure to particulate matter include
premature death, hospital admissions
from respiratory ailments, and increased
respiratory symptoms such as persistent
coughs, phlegm, wheezing, and physical
discomfort. Long-term exposure to
particulate matter may increase the rate
of respiratory and cardiovascular illness
and reduce life span. 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
five case study plants indicated that
windblown dust from uncontrolled CKD
waste management units (uncovered
and dry CKD piles) could exceed EPA's
health-based PMio fine particulate (10
microns or less) National Ambient Air
Quality Standard (NAAQS)34 at plant
boundaries, and potentially at nearby
residences.
34 The level of the national primary and
secondary 24-hour ambient air quality standards for
PMio is 150 micrograms per cubic meter ng/m3).
and 65 fig/m3 for PMas, 24-hour average
concentration. The standards are attained when the
expected number of days per calendar year with a
24-hour average concentration above 150 ug/m3 for
PMio. and above 65 ng/m3Tor PMas, as determined
in accordance with Appendix K to 40 CFR part 50.
is equal to or less than one. The level of the national
primary and secondary annual standards for PM10
is 50 micrograms per cubic meter (ug/m3), and 15
jig/m3 for PMas, annual arithmetic mean. The
standards are attained, when the expected annual
arithmetic mean concentration, as determined in
accordance with Appendix K to part 50, is less than
or equal to 50 ug/m3 for PMio and 15 ug/m3 for
PM.2S-
Results from a subsequent extension
of this work to a larger sample of 52
cement plants suggest that 28 of the
plants could exceed NAAQS PMio
standards at plant boundaries, if the
plants do not have effective dust control
mechanisms in place. The Agency
recognizes that dust from mining and
quarry operations could contribute to
the particulate emissions from a cement
plant; however, 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.
Additionally, particulate emissions of
fugitive dust are the major contributor of
CKD to EPA's indirect foodchain
pathway model. 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 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. Consequently,
the Agency believes it is necessary to
impose additional controls on fugitive
emissions under authority provided by
RCRA section 3004 (n).
2. Applicability
EPA is proposing air protection
standards to limit fugitive CKD
emissions for all new and existing CKD
waste landfill units, except units closed
prior to the effective date of the final
rule. Any expansion of an existing CKD
landfill unit, defined as any lateral or
vertical expansion of the waste
boundary of an existing landfill unit,
must meet today's proposed
requirements. Under this proposed
definition, any area of any existing unit
that receives waste after the effective
date of this rule is an expansion. EPA
is also proposing that interim storage
units, such as containers or buildings
which contain CKD destined for
recycling or sale, must comply with the
air performance standards.
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45651
Consistent with controls proposed
today for ground water, the Agency is
not proposing to require fugitive dust
controls for the old, inactive portions of
existing CKD landfills. However, EPA
solicits comment on applying air
controls to the entire active unit,
including any inactive area of a CKD
landfill with an expansion.
These proposed standards could be
met in one of two ways. First, a person
managing CKD waste could obtain a
determination from the EPA Regional
Administrator (or from the State, in
authorized States), that a management
practice or design meets the
performance standard, providing
adequate assurance that the unit is
managed to control wind dispersal of
particulate matter. Second, the person
managing CKD waste could design units
according to technology-based standards
outlined below, so as to obviate the
need for such a demonstration.
3. Performance Standard for the
Protection of Air
Under today's proposal, unit design
must ensure that wind dispersal of
particulate material (PM) is controlled.
The specific performance standard for
air is that the persons managing CKD
must cover or otherwise manage the
unit to control wind dispersal of CKD
waste. This standard would apply to
solid PM that becomes airborne directly
or indirectly as a result of CKD handling
procedures. The most common sources
of PM at cement manufacturing facilities
to which this standard applies includes
vehicular traffic on unpaved roads or on
CKD waste management units, and wind
erosion from waste management units.
This standard would not apply to CKD
emitted from an exhaust stack.
The Agency understands that
methods for controlling fugitive dust
will vary depending on factors such as
geographic location, climate, facility
design, and CKD management method.
While the technology-based standards of
conditioning CKD, using covers,
watering, and use of tanks, containers,
or buildings for temporary storage,
meets the performance standard, other
techniques and technologies may be as
or more effective. Therefore, today's
proposal provides persons managing
CKD waste, working with regulatory
agencies, with-substantial flexibility to
determine the appropriate method to
control fugitive emissions based on
facility-specific conditions.
To demonstrate compliance with the
performance standard for the protection
of air, EPA is proposing that persons
managing CKD waste in new and
existing CKD landfills, temporary
storage areas, and trucks provide cover
..? - *>K '*
or otherwise manage the CKD such that
equivalent control exists to that
provided by daily cover of the landfill
unit. Additionally, if landfill units,
roads, temporary storage areas, and
trucks are managed with no visible
fugitive emissions of CKD, the Agency
would view that the performance
standard is met. The Agency solicits
comment regarding the effectiveness of
various fugitive dust control methods in
demonstrating compliance with the
performance standard for air so that
EPA can provide comprehensive
guidance to persons managing CKD and
to staff at regulatory agencies who
would implement today's proposed
rule.
4. Technology-Based Standards for
Fugitive Dust Control
a. Conditioning
For facilities complying with the
technology-based standards, EPA is
proposing that CKD managed in
landfills must be emplaced as
conditioned CKD. For purposes of this
section, conditioned CKD means cement
kiln dust that has been compacted in the
field at appropriate moisture content
using moderate to heavy equipment to
attain 95% of the standard Proctor
maximum dry density value according
to ASTM D 698 or D 1557 test methods.
Such conditioning can be achieved fay
mixing the CKD with water on a
continuous or batch basis, such as pug-
milling, followed by compaction. The
material should be spread in lifts.of
uniform thickness and compacted to the
required density with appropriate
equipment (e.g., a heavy sheep-foot
roller). The compaction of moist CKD,
coupled with the waste's natural
cementitious properties, enables
individual waste particles to bond
together, thus greatly reducing the
availability of particulate material for air
dispersal, and, therefore, this standard
is protective for fugitive dust from
landfills. In addition, the bonding can
serve to decrease the leaching of
contaminants from CKD.
constructed of materials that have
appropriate physical and chemical
properties, and sufficient strength and
thickness to prevent failure due to
physical contact with CKD, climatic
conditions, the stress of installation, and
the stress of daily operation. Similarly,
EPA is proposing that CKD transported
in trucks on or off the facility be covered
to minimize fugitive emissions of CKD.
Alternative materials or actions may be
approved by the EPA Regional
Administrator (or the State, in
authorized States), as long as the person
managing CKD waste makes a
demonstration that the alternative meets
the performance standard.
c. Wetting
Wetting of CKD on roads is not
required in today's proposed
performance-based standards. EPA
believes, however, that consistent
wetting and watering of unpaved roads,
when used in conjunction with other air
control technologies, can reduce
releases of fugitive emissions from
facilities that manage CKD. Data from an
EPA study of fugitive dust emissions
• from cement plants and potential
control measures indicates that fugitive
dust emissions from unpaved roads can
be significantly reduced by increasing
the moisture content of the dust.
However, the wetting of roads by itself
will not meet today's proposed
performance standard for air.
The Agency solicits comments on the
effectiveness of these and other methods
for controlling fugitive emissions of
CKD.
b. Covers
The Agency is also proposing that
disposed CKD be covered with material
at the end of each operating day
sufficient to prevent blowing dust. EPA
believes that cover material applied at
the end of each operating day over the
active face of the CKD landfill will
prevent the entrainment of fugitive dust,
and is a more effective practice for dust
suppression than frequent wetting and
watering.ss The cover must be
d. Temporary Storage
The Agency today is proposing that
CKD destined for temporary storage
prior to recycling, sale, or disposal not
be placed in land-based units, but in
tanks, containers, or buildings. CKD
would not be considered a hazardous
waste provided the storage that precedes
sale or recycling provides adequate
control of fugitive dust. An acceptable
containment unit must be a man-made
structure with a foundation constructed
of non-earthen materials, have walls
(which may be removable), and have a
roof suitable for diverting rainwater
away from the foundation. In
considering these criteria for containers
and buildings, EPA is placing special
emphasis upon practical considerations,
such as the need to transport materials
in and out of the unit in a reasonable
fashion. The Agency would not require
that these units meet full Subtitle C
35 Although wetting and watering is a common
fugitive dust suppression practice at CKD landfills.
the persistent releases of fugitive CKD reported in
the RTC suggest that frequent wetting alone is not
sufficient to prevent blowing dust.
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Federal Register/Vol. 64, No. 161/Friday, August 20, 1999/Proposed Rules
requirements for storage of hazardous
wastes as outlined in parts 264 and 265
subparts I and J.
C. Closure
In today's proposed rule, EPA is
requiring that new and existing CKD
landfill units, including expansions be
closed in accordance with specified
standards, and that units be monitored
and maintained after closure. Closure
and post-closure plans describing these
activities are to be prepared to comply
with a minimum set-of procedural
requirements. As described in the
damage cases supporting this rule,
improperly closed CKD landfills have
the potential for contaminating the
environment due to inadequate controls
to contain the waste. For example, in
one damage case, CKD wastes remained
exposed due, in part, to failure to install
a proper cap or insulate'the waste from
the erosive wave action of Lake Huron.
EPA proposes that^ill persons
managing CKD waste in CKD landfill
units must install a final cover designed
to minimize infiltration and promote
drainage from its surface while
minimizing erosion. It must also be
designed so that settling and subsidence
are accommodated to minimize the
potential for disruption of continuity
and function of the final cover. The
Agency believes that placement of a
final cover over closed portions of a
CKD landfill is necessary to minimize
the infiltration of rainwater, minimize
the dispersal of CKD waste through
physical interaction, and minimize the
need for further maintenance at the
facility through the post-closure period
and beyond. The infiltration layer must
be a minimum of 18 inches of earthen
material that has a hydraulic
conductivity of less than or equal to the
bottom liner system, or no greater than
1 x 10~5 cm/sec, whichever is less. The
erosion layer must have a sufficient
thickness to sustain native plant growth.
Alternative final cover designs may be
approved by the EPA Regional
Administrator (or the State, in
authorized States), if the cover layers
achieve the same objectives as the
specified design in this proposed rule.
D. Post-Closure Care
Today's proposed rule also requires
that post-closure care be conducted for
a period of 30 years after the closure of
each CKD landfill unit. Post-closure care
consists of maintaining the effectiveness
of the final cover and continuing
ground-water monitoring and leachate
management to control the formation
and release of leachate into the
environment. Routine maintenance of
the integrity and effectiveness of the
final cover is necessary to prevent
liquids from penetrating into the closed
landfill and creating the potential for
leachate migration.
EPA is proposing in today's rule to
give the EPA Regional Administrator (or
the State, in authorized States),
discretion to reduce or extend the length
of the post-closure period based on site-
specific demonstrations. The Agency is
concerned that 30 years may be
excessive or insufficient to detect
releases at some landfills. Therefore, the
Agency wants to ensure that any
potential release will be detected
regardless of when it occurs.
Required activities in today's
proposed rule include repairs to the
final cover to correct the effects of
settling, subsidence, and erosion, and
preventing run-on and run-off from
damaging the cover. Cover maintenance
also includes periodic cap replacement,
which is necessary to remediate the
effects of routine deterioration. The
Agency believes that these activities-
will minimize liquids in CKD landfills
and are the minimum steps necessary to
protect human health and the
environment in the long term.
Today's proposal under §259.50 also
requires ground-water monitoring and
maintenance of the ground-water
monitoring system during the post-
closure care period. The fundamental
purpose of monitoring during the post-
closure care period is to detect ground-
water contamination in a timely fashion
should the CKD waste containment
structure fail, and to trigger corrective
action activities as soon as .
contamination occurs. Long-term
monitoring is essential to detect releases
due to catastrophic failure or design and
installation errors (e.g., tearing of liners
due to ground movement).
E. Closure/Post—Closure Planning
Requirements
Today's proposed rule also requires
preparation of closure and post-closure
plans describing activities that will be
undertaken to close each CKD landfill
unit properly and maintain them after
closure. These plans must be prepared •
and placed in the facility operating
record no later than the effective date of
this rule, or the date of initial receipt of
the waste, whichever is later.
The closure and post-closure care
standards also include certain
procedural requirements. First, prior to
closing of each landfill unit, the EPA
Regional Administrator (or the State, in
authorized States) must be notified and
the notification must be placed in the
facility operating record. Second,
closure of the landfill unit must begin
within 30 days after the date of final
receipt of CKD waste and closure
complete within 180 days of receipt of
the last shipment of waste. Extensions
to these deadlines may be approved for
good cause by the EPA Regional
Administrator (or the State, in
authorized States). Third, following
closure of the facility, a notation in the
deed to the property must be recorded
that indicates the property has been
used for CKD disposal. Finally, the EPA
Regional Administrator (or the^State, in
authorized States) must be notified and
a certification must be placed in the
facility operating record that verifies
that closure and post-closure activities
have been conducted in accordance
with closure and post-closure plans.
The certification must be signed by an
independent registered professional
engineer, or approved by the EPA
Regional Administrator (or the State, in
authorized States).
F. Financial Assurance
In today's proposed rule, a
demonstration of financial assurance is
required for the costs of conducting
closure, post-closure care, and, if
applicable, corrective action for known
releases. The proposed financial
assurance requirements are patterned
after the financial assurance provisions
for municipal solid waste landfill
facilities (MSWLFs) under Subtitle D
(see §§258.71 to 258.75).
The purposes of financial assurance
are to ensure that the owner or operator
of a CKD landfill unit adequately plans
for the future costs of closure, post-
closure care, and corrective action for
known releases, and to ensure that
adequate funds will be available when
needed to cover the costs if the owner
or operator is unwilling or unable to do
so. To demonstrate to the EPA Regional
Administrator (or the State, in
authorized States) that it has planned
for future costs, written cost estimates
must be prepared. These cost estimates
would serve as the basis for determining
the amount of financial assurance that
must be demonstrated.
EPA is proposing that persons
managing CKD waste in new and
existing CKD landfill units, including
expansions, be required to demonstrate
financial responsibility for closure, post-
closure care, and corrective action for
known releases in an amount equal to
the cost of a third party conducting
these activities. The "third party"
provision ensures that adequate funds
will be available for the regulatory
agency to hire a third party to conduct
closure, post-closure care, and
corrective action in the event that the
person managing CKD waste fails to
fulfill these obligations.
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The cost estimates must be based on
the cost of closing the CKD landfill unit
at the point of the landfill's active life
when the extent and manner of its
operation would make closure the most
expensive. Similarly, cost estimates for
post-closure care must include estimates
for both annual and periodic activities,
and account for the most expensive
costs of routine post-closure1 care. EPA
is proposing that the cost estimates be
updated annually for inflation and
whenever design changes cause changes
in the costs at the CKD landfill unit.
Cost estimates may be reduced provided
a justification for the reduction is placed
in the operating record and the EPA
Regional Administrator (or the State, in
authorized States) is notified. The
• Agency solicits comment on whether
cost estimates need prior approval by
the EPA Administrator.
In today's proposal, any person
managing CKD waste who is required to
undertake a corrective action program
would be required to prepare an
estimate of the cost of an appropriate
corrective action program (for example,
by multiplying the total annual costs of
remedial actions by the number of years
required to complete the corrective
action program).
Today's proposed rule includes a list
of specific financial mechanisms that
may be used to demonstrate financial
responsibility, as well as criteria for
judging whether other mechanisms are
acceptable. The rule permits the use of
a trust fund with a pay-in period, surety
bond, letter of credit, insurance, State-
approved mechanism, and State
assumption of responsibility.
Today's proposed rule would also
allow private owners or operators of
cement kiln dust landfills (CKDLFs) that
meet certain financial and
recordkeeping and reporting
requirements to use a financial test to
demonstrate financial assurance for
CKDLF closure, post-closure care and
corrective action costs up to a calculated
limit. (Costs over the limit must still be
assured through a third-party
mechanism such as a surety bond or
trust fund, or, in authorized States,
through other appropriate mechanisms
the State determines to meet the
performance standard proposed at
§ 259.64(1)). The financial test allows a
company to avoid incurring the
expenses associated with the existing
financial assurance requirements which
provide for demonstrating financial
assurance through the use of third-party
financial instruments, such as a trust
fund, letter of credit, surety bond, or
insurance policy. With the financial
test, private persons managing CKD
waste may demonstrate that they are
capable of meeting their financial
obligations at their CKDLFs through
"self insurance." *
In addition, today's proposed rule
allows persons managing CKD waste to
comply with financial responsibility
requirements for CKDLFs using a
guarantee provided by another private
firm (the guarantor). Under such a
guarantee, the guarantor promises to pay
for or carry out closure, post-closure
care, or corrective action activities on
behalf of the person managing CKD
waste in a CKDLF if the person fails to
do so. Guarantees, like other third-party
mechanisms, such as letters of credit or
surety bonds, ensure that a third party
is obligated to cover the costs of closure,
post-closure care, or corrective action in
the event that the person managing CKD
waste goes bankrupt or fails to conduct
the required activities. At the same time,
a guarantee is an attractive compliance
option for persons managing CKD waste
because guarantees are generally less
expensive than other third-party
mechanisms.
Today's proposed rule releases
persons managing CKD waste from
financial responsibility for closure, post-
closure care, or corrective action when
the EPA Regional Administrator (or the
State, in authorized States), is notified
that a certification has been placed in
the facility operating record that the
specific activities (i.e., closure, post-
closure care for a period, corrective
action) have been completed in
accordance with the appropriate plan.
The certification must be signed by a
professional engineer, approved by the
EPA Regional Administrator (or the
State, in authorized States).
EPA is also considering requiring
persons managing CKD waste in CKD
landfill units to demonstrate financial
assurance for third party liability to
compensate injured third parties. Such
liability requirements are currently
required under RCRA Subtitle C for
hazardous waste management facilities
(see 40 CFR 264.147). Financial
assurance for third-party liability
potentially benefits the public health by
providing the incentive of lower
insurance premiums resulting from
improved facility design and operation.
Under §264.147, an operating land
disposal facility must have both
coverage for sudden accidental releases
in the amount of $1 million per
occurrence and $2 million annual
aggregate plus nonsudden coverage.
This nonsudden accidental coverage is
for an additional $3 million per
occurrence and $6 million annual
aggregate. Thus, were the Agency to
require the same level of liability
coverage for CKD landfills as for -
hazardous waste land disposal owners
and operators, they would need at least
$4 million and $8 million in total.
For municipal solid waste landfill
facilities, EPA has deferred the
development of third party liability
requirements under part 258. EPA's
decision to defer these requirements
was based upon two issues. The first
was that the Agency had insufficient
data to set appropriate levels for third
party liability coverage. Second, the
Agency was concerned that owners and
operators of MSWLFs would encounter
difficulty in obtaining financial
assurance mechanisms to fulfill this
requirement. (For more information on
these points please see the Appendix to
the final regulation establishing the
Solid Waste Disposal Criteria at 56 FR
51108.)
The Agency, however, believes that
the risks from CKD landfill are closer to
those for from MSWLFs than from
hazardous waste treatment, storage, and
disposal facilities (TSDFs). Therefore,
the types of liability requirements for
hazardous waste TSDFs may be
inappropriate for CKD landfills. Further,
the amounts of coverage that EPA
should require may also differ. EPA has
limited data at this time to specify the
amount of liability coverage that would
be appropriate for a CKD landfill unit.
Another consideration is the cost of
implementing such a requirement. EPA
is reluctant to directly adopt the levels
of coverage required for Subtitle C
facilities without further analysis
comparing the risks and resultant third
party claims from CKD landfill units
and other Subtitle C hazardous waste
facilities. The Agency, therefore,
requests comment on whether or not to
require financial assurance for third-
party liability for CKD landfill units. In
particular, EPA requests information on
the risks to third parties from these
facilities, the amount of claims, and the
availability of liability coverage to assist
it in setting appropriate levels of
liability coverage.
G. Implementation
Except as provided in proposed
§ 259.40, existing CKD management
units, including vertical expansions
would be required to be in compliance
with the groundwater monitoring
requirements proposed under §259.40
within two years after the effective date
of the final rule. New CKD management
units, including lateral expansions must
be in compliance with the ground-water
monitoring requirements proposed
under §259.41 before CKD can be
placed in the unit. Ground-water
monitoring shall be conducted
throughout the active life and post-
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closure care period of the CKD
management unit as proposed under
§259.51.
A unit design which causes an
exceedance of the groundwater
protection standard will be considered
as being in compliance with today's
proposed rule if appropriate corrective
action is taken. As explained below, if
a person managing CKD waste does not
initiate corrective action to correct the
source of contamination within 270
days (unless an alternative schedule for
compliance is set by the EPA Regional
Administrator under § 259.47(e)), the
CKD managed in such a unit will be
considered a Subtitle C waste, and
subject to standards under 40 CFR part
266.
1. Notification, Recordkeeping, and
Reporting
Record reviews are one of the ways
EPA can ascertain whether a facility is
in compliance with today's proposed
standards. Accordingly, in §259.23 of
today's proposal, EPA has included a
recordkeeping requirement to ensure
that a historical record of CKD landfill
performance is maintained. The person
managing CKD waste would be required
to maintain the following records: (1)
Any required demonstration,
certification, finding, monitoring,
notification, testing, or analytical data
proposed today under Subpart E of part
259; (2) required inspection records,
training procedures, and regulatory
agency notification procedures as
proposed under § 259.20; (3) required
closure and post-closure care plans and
any monitoring or analytical data
proposed under §§259.50 and 259.51;
and (4) any required cost estimates and
financial assurance documentation
proposed under subpart G of today's
proposal. The required information
would be recorded as it becomes
available, and maintained by the
persons managing CKD waste in new
and existing CKD landfill units. EPA
requests comment on the timing of
regulatory agency notification and
whether specific time requirements
(e.g., 14 days from a finding) should be
specified for placement of documents in
the operating record.
In today's rule, EPA is proposing that
information would be retained in an
operating record near the facility, or in
an alternative location approved by the
State (or in unauthorized States, by the
EPA Regional Administrator). In
addition, today's rule proposes that all
information contained in the operating
record must be publicly available. EPA
believes that these requirements would
ensure the availability of basic types of
information that demonstrate
compliance with the requirements of
today's proposal, but requests comment
on the operating record being kept near
the facility or in an approved alternative
location and whether limitations should
be placed on this requirement (i.e.,
distance the record can be kept from the
facility, access to the record or public
availability issues with the record being
off-site.).
2. Permitting Requirements
EPA is proposing to modify the
requirements in 40 CFR part 270 by
adding § 270.68 specific to the
permitting of cement manufacturing
facilities which manage CKD. Part 270
of the hazardous waste regulations
contains specific requirements for
permit applications, permit conditions,
changes to permits, expiration and
continuation of permits, interim status
and special forms of permits. Facilities
that choose not to follow, or fail to
maintain the management standards for
cement kiln dust waste proposed today
in part 259 may be required to obtain a
permit under rules proposed today
under 40 CFR 270.68. This Subtitle C
permit would provide for the operation
of the facility in accordance with 40
CFR part 259, and may include such
additional requirements as the EPA
Regional Administrator deems
necessary to protect human health and
the environment, including, but not
limited to requirements regarding
monitoring, operation, financial
responsibility, closure and remedial
action. In States with an authorized
RCRA program, all references to the
EPA Regional Administrator should be
read as referring to the State Director, or
other State official responsible for
implementing the State Subtitle C solid
waste permit program. Today's
proposed rule would also allow for
Federal oversight and enforcement of
requirements under Subtitle C.
The Subtitle C permit proposed today
under §270.68 is different from other
part 270 permits. Generally applicable
standards under 40 CFR part 270 and
part 124 for permit application, issuance
and modification, apply to facilities that
are fully subject to the Subtitle C
regulations, including requirements for
facility-wide corrective action. Under
today's proposal, however, CKD
facilities subject to a permit to allow
operation in accordance with part 259
regulations are not subject to certain
regulations applicable to most Subtitle C
facilities. For example, these facilities
would not be subject to facility-wide
corrective action and would not be
required to submit information to
support a facility wide corrective action
program (see existing §270.14(d)).The
Agency, therefore, solicits comment on
today's proposed approach, and
whether the full range of requirements
normally imposed under part 270
should be required for cement
manufacturing facilities which manage
CKD. To address portions of part 270
and 124 that would not apply for these
CKD facilities, proposed §270.68 allows
the EPA Regional Administrator (or the
State, in authorized States), consistent
with the protection of human health and
the environment, to modify or waive
permit application and permit issuance
requirements in parts 124 and 270,
except for procedures regarding public
participation.
EPA anticipates that few facilities will
be required to seek permits to operate in
lieu of the terms of today's proposed
part 259 standards and is proposing
today's standards under §270.68 rather
than detailed procedures or
modifications of existing part 270 for
the establishment of these permits. This
approach is consistent with that taken
for the Research, Development and
Demonstration permits found in
§ 270.65. In today's rule, only those
facilities that fail to comply with either
the performance standards or the
technology-based standards under 40
CFR part 259 will be subject to RCRA
Subtitle C regulations, and thus will
require permits proposed under
§270.68.
H. Applicability of the Boilers and
Industrial Furnaces Rule
On February 21, 1991, the Agency
promulgated a final rule for burning of
hazardous waste in boilers and
industrial furnaces (BIF rule) (see 56 FR
7134). The BIF rule expanded controls
on hazardous waste combustion to
regulate air emissions from burning
hazardous waste in boilers and
industrial furnaces. The rule also
subjected owners and operators of these
facilities to the general facility standards
applicable to hazardous waste
treatment, storage and disposal facilities
(40 CFR part 264) and subjected
hazardous waste storage units at
regulated burner facilities to part 264
permit standards.
Three types of facilities that burn or
co-combust hazardous waste that are
affected by the BIF rule are: (1) Boilers
burning primarily coal or other fossil
fuels, (2) industrial furnaces processing
primarily ores and minerals, and (3)
cement kilns processing primarily raw
materials. Because residues from these
processes were covered by the Bevill
exclusion until special studies were
completed to determine whether they
should be regulated under Subtitle C
(see section 3001 (b) (3) (A) (i-iii)), the BIF .
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rule requires owners and operators to
apply a two-part test to determine
whether the Bevill exclusion continues
to apply. Using the test, owners and
operators are required to determine on
a site specific basis whether co-
combustion of hazardous waste has
significantly affected the character of
the residue. The residue is considered to
be significantly affected if both: (1)
Concentrations of toxic (Appendix VIII)
compounds in the waste-derived
residue are significantly higher than in
normal residue (i.e., without burning/
processing hazardous waste); and (2)
toxic compounds are present in the
waste-derived residue at levels that
could pose significant risks to human
health. (For metals, these are set at the
RCRA toxicity characteristic level
defined in Appendix VII to part 266.) If
the test demonstrates that the waste-
derived residue is significantly affected,
or the persons managing CKD waste fail
to obtain data adequate to demonstrate
that the residue has not been
significantly affected, then the derived-
from residues are subject to RCRA
Subtitle C hazardous waste regulations.
Such residues are deemed to be from
treating hazardous waste rather than
from burning fossil fuels, processing
ores or minerals, or manufacturing
cement (see 56 FR 7196, February 21,
1991, Section XIII for a discussion of the
basis for the two-part test).
One of the effects of today's proposal
is to replace the exemption of CKD from
hazardous waste regulation under the
Bevill exemption with specific
management standards applicable to
CKD. As a result, the two-part test
would be meaningless since, in the
absence of the Bevill exemption, all
waste-derived CKD would be hazardous
under the derived-from rule (see 40 CFR
261.3(c) (2) (i)), whether or not it exhibits
a hazardous characteristic. However, the
Agency believes subjecting waste-
derived CKD that does not exhibit a
hazardous characteristic to full Subtitle
C requirements would create excessive
burdens and be unnecessary. EPA
believes that applying the regulations
proposed today under §261.4 (b) (8) to
such waste will be protective. It should
be noted that characteristically
hazardous waste-derived CKD is already
subject to Subtitle C regulation under 40
CFR 266.112 and is not within the scope
of this rulerriaking.
The Agency, therefore, still believes it
is necessary for persons managing CKD
waste at facilities burning hazardous
waste as fuel to test whether their CKD
exhibits a hazardous characteristic
under 40 CFR 266.112, and when the
CKD tests hazardous, to manage the
CKD as a hazardous waste under full
Subtitle C requirements. EPA believes
that subjecting characteristically
hazardous CKD from hazardous waste
burning" kilns to RCRA SuD~title*C
regulations will provide an incentive for
cement kiln owners and operators to
reduce metals levels in their CKD to
remain eligible for the tailored
standards. EPA notes that cement
manufacturing facilities that burn
hazardous waste and generate waste-
derived CKD are subject to RCRA
permitting regardless of the content of
the CKD they generated, including the
requirement to conduct facility-wide
corrective action under 40 CFR 264.90,
264.101, and part 264, subpart S. To the
extent that CKD has higher levels of
toxic metals due to the combustion of
hazardous wastes, facilities may need to
do more to achieve today's proposed
performance standards.
clinker poses unacceptable threats to
human health or the environment.
EPA is proposing that the two-part
test for waste-derived CKD and Subtitle
C requirements for characteristically
hazardous residues should continue to
apply to waste-derived CKD as
described in the BIF rule, but with a
revision. EPA is proposing elimination
of part one of the two-part test, as set
forth in 40 CFR 266.112(a)(l) because
the Agency knows of no case where
CKD has passed the second test, but
failed the first. The Agency today
solicits comments on the need for part
one of the two-part test, and solicits
information on whether there is any
CKD that passed part one, but failed to
pass part two, the comparison with
health-based limits. Additionally, the
Agency proposes that waste-derived
CKD that does not test hazardous will be
subject to today's proposed performance
standards and management standards.
/. Exemption From the Definition of
Hazardous Waste
1. Waste-Derived Clinker
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 Bevill
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 proposed today, EPA is
also proposing to exclude clinker from
regulation as a derived-from hazardous
waste when CKD is reintroduced to the
cement manufacturing process. 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
2. Light-Weight Aggregate Kiln Dust
As mentioned in the Phase IV Land
Disposal Restrictions Final Rule on
Mining and Mineral Processing Wastes
(see Land Disposal Restrictions—Final
Rule to Phase IV: Clarification of Bevill
Exclusion for Mining Wastes, Changes
to the Definition of Solid Waste for
Mineral Processing Wastes, Treatment
Standards for Characteristic Mineral
Processing Wastes, and Associated
Issues, 63 FR 28556, May 26, 1998), EPA
has decided to defer any decision on the
Bevill status of air pollution control
dusts and sludges generated from light-
weight aggregate kilns (LWAKs)
pending completion of an evaluation of
issues related to CKD and light-weight
aggregate dust handling and use. Light-
weight aggregate pollution control dust
and sludge, like CKD, are produced as
the result of combustion of raw
materials within a kiln. Like CKD, light-
weight aggregate dust is usually not
characteristically hazardous because it
seldom fails the Toxicity Characteristic
Leaching Procedure (TCLP). In addition,
if a LWAK burns RCRA hazardous waste
during light-weight aggregate
production, it is subject to the BIF rule,
and the aggregate and associated
products could be considered hazardous
wastes under the derived-from rule (40
CFR261.3(c)(2)(i)).
The Agency is considering providing
tailored standards for LWAK dust that
are equivalent to those being proposed
for CKD. Under that scenario, LWAK
dust would not be a hazardous waste
when it is reintroduced to the
production process, recycled, or used
for beneficial purposes other than
agricultural use. With little or no LWAK
dust disposed, it may be unnecessary to
apply the disposal conditions for CKD
to LWAK dust. The Agency, however,
solicits comment on the appropriateness
of applying all proposed provisions for
CKD to LWAK dust. Accordingly, EPA
solicits information on: (1) The
chemistry of aggregate dust and sludges
from LWAKs that burn and do not burn
RCRA hazardous waste (both total and
leachable concentrations of toxic
metals); (2) potential danger to human
health and the environment posed by
the management of LWAK dust and
sludges; and (3) the current and
potential utilization of LWAK dust and
sludges.
3. Use of CKD in Removal and
Remediation Actions
In some situations CKD has been used
safely and beneficially to absorb and
stabilize hazardous wastes, oily wastes,
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and sludges. When used to stabilize or
solidify wet wastes, CKD reacts very
much like Portland cement, especially
when silica (sand) is present. This
reaction serves to chemically
immobilize any toxic metals present in
both the CKD and the waste. Depending
on the nature of the waste and how
much CKD is used, the appearance of
the final product can be anything from
a monolithic slab to a dried sludge.
Federal On-Scene Coordinators
(OSC's—see 40 CFR part 300) have used
CKD on a variety of emergency response
sites since the inception of the
Superfund removal program. After the
CKD is thoroughly mixed with waste,
the mixture is usually transported to an
off-site disposal facility. However,
significant amounts of CKD/waste
mixture may be left on site after a
removal action is complete. This can
occur when CKD is used to treat large
amounts of low hazard sludge in open
lagoons, large amounts of waste-water,
or large amounts of minimally-
contaminated soil.
In all cases, the OSC ensures that the
immediate threat has been abated. If an
OSC must leave CKD on-site after the
completion of the removal action, he or
she will conduct post-treatment
sampling and analysis to ensure that the
constituents of concern have been
immobilized and the mixed material
will not pose a threat to human health
or the environment.
CKD is also used to solidify Sewage
Treatment Plant (STP) sludge and to
stabilize oily sludges and other non-
hazardous wastes. Treatment of sewage
sludge is currently regulated under the
provisions of 40 CFR part 503. In most
cases, the volumes involved are small
and the CKD is thoroughly mixed with
the waste to ensure effective treatment.
Accordingly, EPA is proposing that
nothing in today's rulemaking would
prevent, restrict, or regulate the
beneficial use of CKD as a stabilizer or
solidifier during RCRA cleanups under
sections 3004(u), 3004(v) and 3008(h),
Superfund response actions that are
carried out in accordance with the
requirements of 40 CFR part 300—the
National Oil and Hazardous Substances
Pollution Contingency Plan (NCP), or
when the EPA Region or, in an
authorized State, the State agency, finds
that the use of CKD in remediation is
protective of human health and the
environment. By statute or regulation,
CERCLA and RCRA cleanups must be
protective of human health and the
environment. Therefore, use of CKD in
these situations would satisfy the
protectiveness requirements of RCRA
Subtitle C. Such use would fall within
the general exemption for beneficial
uses, but to avoid any uncertainty with
regard to remedial uses, a specific
exemption is also being proposed.
J. Final Rule Effective Date
EPA is today proposing that the
record-keeping, closure and post-closure
planning, CKD listing, agricultural
application standards, and fugitive dust
emission standards become effective 90
days after publication of the final rule
in the Federal Register. The remaining
criteria, including landfill design,
ground-water monitoring, corrective
action, and financial assurance
requirements would become effective 24
months after their promulgation.
EPA is proposing to make the record-
keeping, closure and post-closure
planning, CKD listing, agricultural
application standards, and fugitive dust
emission standards effective 90 days
after publication because these
requirements can be implemented
within this time frame and an early
effective date would be more protective
of human health and the environment.
First, the planning and record-keeping
requirements are self-implementing and,
thus, lend themselves to a more
immediate effective date. Second, 90
days is the standard amount of time
provided by EPA to implement
hazardous waste listings under RCRA
Subtitle C. Third, laboratories capable of
testing CKD are readily accessible, so
significant additional capital would
likely not be required to test CKD or
implement today's proposed
agricultural application standards.
Moreover, EPA believes that significant
additional capital is not required to
fund facility changes needed to
implement today's proposed fugitive
dust controls, such as the compaction
and daily cover requirements for CKD
landfills. The Agency, however, solicits
comment on whether there are technical
factors which make the 90 day period
for implementation of today's proposed
fugitive dust emission standards
difficult to comply with.
The 24 month effective date would be
limited to those requirements that
include interactions with or
determinations by the EPA Regional
Administrator (or the State, in
authorized States), including landfill
design, ground-water monitoring,
corrective action, and financial
assurance requirements. EPA believes
the proposed 24 month period would
provide persons managing CKD waste
sufficient time to perform the studies
and other actions (e.g., conduct a karst
inventory, install ground-water
monitoring wells, implement corrective
action measures) necessary to bring
their facilities into compliance. -
EPA today is also distinguishing
between those CKD landfill (CKDLF)
units that stop receiving CKD waste
prior to the date of today's proposed
rule and those that stop receiving CKD
waste in the window between the date
of today's proposed rule and the
effective date of the final rule. CKDLFs
in the former category will remain
outside the scope of today's proposed
rule. EPA, however, is today proposing
that CKDLFs in the latter category have
a final cover installed according to
provisions specified today under
§ 259.50. The Agency is proposing that
the final cover must be installed within
six months of the last receipt of CKD
waste or the unit will be subject to all
of the requirements of part 259—
Management Standards for Cement Kiln
Dust Waste.
EPA has decided to distinguish
between the two categories of closed
CKDLFs for several reasons. First, the
Agency does not intend to include
within the scope of today's rulemaking
inactive CKDLFs that stopped receiving
waste prior to the date of today's
proposed rule. Second, the Agency
believes that some regulatory
requirements for CKDLFs that stop
receiving waste between the date of
today's proposed rule and the effective
date of the final rule would help prevent
releases of CKD waste. Today's
proposed cover requirement would
restrict the introduction of rainwater
and surface water into the CKDLF unit,
thereby limiting the production of
leachate. If closed without the benefit of
a cover, the CKDLFs would continue to
be exposed to precipitation and wind,
which could result in the increased
production of leachate and fugitive dust.
V. Subtitle C Backup Standards
In developing the Subtitle C standards
that would apply to CKD that is
mismanaged (or "backup standards"),
EPA, consistent with the CKD regulatory
determination, scrutinized specific
RCRA Subtitle C components to develop
a tailored approach for CKD generated
from non-hazardous waste burning
kilns, and non-characteristically
hazardous CKD from kilns that burn
RCRA hazardous wastes.
A. Subtitle C Requirements for
Hazardous CKD Waste
EPA is proposing that persons
managing CKD that fail to comply with
the performance standards or the
technical standards proposed today
under 40 CFR part 259 shall be subject
to: (1) The provisions applicable to
generators of hazardous waste (40 CFR
part 262); (2) the EPA administered
waste permit program proposed today in.
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§ 270.68; (3) RCRA Subtitle C imminent
hazard Sections of Subpart A (§§264.4
and 265.4); (4) the following Sections of
subpart B (General Facility Standards):
§§264.11 and 265.11 (Identification
number), §§264.12 and 265.12
(Required notices), §§264.14 and 265.14
(Security), §§264.15 and 265.15
(General inspection requirements),
§§264.16 and 265.16 (Personnel
training), and §§264.19 and 265.19
(Construction quality assurance .
program); (5) RCRA Subtitle C manifest,
recordkeeping and reporting
requirements (subpart E—40 CFR parts
264 and 265); and (6) all applicable
provisions for the management of CKD
proposed in today's rule under 40 CFR
part 259. EPA believes the provisions of
parts 264 and 265 that are not included
in today's proposed rule (e.g., subpart
W—Drip Pads) appear to be either not
relevant to CKD management or are
already covered by standards proposed
today under part 259. These
requirements operate in lieu of
requirements in 40 CFR parts 263-265,
and 268 except where portions of those
subparts are specifically cross-
referenced.
1. 3004 (x)—Special Characteristics
Section 3004 (x) of RCRA authorizes
EPA to modify certain Subtitle C
requirements "to take into account the
special characteristics of such wastes,
the practical difficulties associated with
implementation of such requirements,
and site-specific characteristics * * *
so long as such modified requirements
assure protection of human health and
the environment." Accordingly, the
Agency is today proposing to suspend
land disposal restriction requirements
(LDRs) under RCRA sections 3004 (c),
(d), (e), (f), and (g); minimum
technology standards under RCRA
section 3004 (o); and facility-wide
corrective action requirements under
section 3004 (u) for the following
reasons. First, as long as CKD is
disposed according to the technology-
based standards EPA proposes today,
the Agency considers such controls
protective of human health and the
environment. Therefore, requiring
treatment in accordance with land
disposal restrictions would not be
necessary. Second, as explained in the
background documents to today's rule,
the minimum technological
requirements under section 3004(o) for
Subtitle C landfills (e.g., double liners;
two leak detection systems) would not
provide significant incremental benefits
over the technology-based landfill
design standards proposed in today's
rule, and would add to the practical
difficulties associated with
implementation of such requirements.
The technology-based standards
proposed in .today's rule for CKD
landfills'include a composite liner,
leachate collection system, and daily
cover. A second liner and leachate
collection system, which are required
for hazardous waste landfills under
subpart N of 40 CFR part 264, are
unnecessary. EPA believes the technical
record supporting today's proposed
standards demonstrates that today's
proposed technology-based standards
are sufficient to protect human health
and the environment. The technology-
based standards proposed today can be
waived, but compliance with today's
proposed performance standards means
the alternative CKD landfill design is
protective of human health and the
environment. Third, as explained above,
EPA believes that it is inappropriate to
impose a requirement for facility-wide
corrective action for old CKD disposal
units, and that reliance on RCRA section
7003 or CERCLA sections 104 and 106
should be adequate to address any
substantial threats to human health and
the environment (see Section IV.A.7.—
Corrective Action).
2. Facility-Wide Corrective Action
Requirement
EPA invites comment on the option of
requiring facility-wide corrective action
at facilities that fail to maintain the
terms of today's proposed rule. Under
this option, these facilities would be
required to address past and potential
releases of hazardous waste and
hazardous constituents at their facilities,
including from solid waste management
units not covered by today's proposed
rule. Old cement kiln dust piles at CKD
facilities are solid waste management
units. Based on the 113 cement
manufacturing facilities that were active
in 1990, EPA estimates that there were
740 inactive CKD disposal piles
nationwide and that approximately 90
million metric tons of CKD were stored
in these piles. A complete description of
this study is available from the docket
in Chapter 7 of the Technical
Background Document on Groundwater
Controls at CKD Landfills. In addition,
11 out of 13 ground-water damage cases,
which form the basis of the CKD
regulatory determination and today's
rulemaking, involve releases of toxic
constituents from old inactive CKD
disposal piles. Given the number of
CKD disposal units and volume of
associated CKD waste nationwide, the
potential facility-wide corrective action
responsibilities are substantial. Under
this option, cement kilns that do not
operate under the terms of today's
proposed'rule would fall into the-
universe of approximately 3500
facilities that are obligated to undergo
RCRA facility-wide corrective action if
necessary to protect human health and
the environment. This universe
presently includes approximately 18
cement manufacturing facilities that
burn hazardous waste.
The 3500 facilities currently required
to undergo facility-wide corrective
action differ greatly in the amount and
complexity of environmental
contamination and site conditions. To
accommodate this diversity, the
corrective action program advocates
flexible, site-specific approaches to
corrective action. For example, although
all facilities are ultimately held to final
facility cleanup, EPA's current program
management emphasis is on source
control and protection of human and
environmental receptors. If facility-wide
corrective action were required, CKD
facilities subject to corrective action
would not necessarily be required to
remove old piles. At many facilities, this
type of activity would be prohibitively
expensive and technically
impracticable, and other remedies, such
as emplacement of wind and water
erosion controls, installation of ground-
water removal and containment systems
and supply of alternate drinking water
supplies if necessary, would be more
appropriate. The corrective action
program can also accommodate
technical and cost limitations by
phasing in remedies. For more
information on the flexibility inherent
to the corrective action program, (see 61
FR 19432, May 1, 1996—Corrective
Action for Releases From Solid Waste
Management Units at Hazardous Waste
Management Facilities).
EPA remains concerned about the cost
implications if the flexibility provided
by RCRA section 3004 (x) is not fully
exercised. Imposing additional LDRs or
the landfill design requirements
specified in RCRA section 3004 (o)
would create substantive compliance
burdens on the regulated community.
Corrective action requirements would
also increase costs, although as
discussed above, that program allows
the use of cost-saving measures. The
Agency's regulatory determination
under RCRA section 3001(b)(3)(c) that
additional control of CKD is warranted
was based on a balancing of the factors
specified under RCRA section 8002(o),
including cost. That determination
assumed that any regulation imposed
under RCRA could be designed so as to
limit the cost burden while regulating
the risks of concern. While the
determination under RCRA section
3004 (x) is separate from that under
RCRA section 3001(b)(3)(c), and is based
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on somewhat different factors, EPA
would likely re-evaluate the underlying
regulatory determination if RCRA
section 3004 (x) were not interpreted to
allow the degree of modification
proposed today. The Agency, however,
interprets RCRA to provide the degree of
flexibility proposed today and views the
resulting regulatory system as fully
consistent with its regulatory
determination. EPA seeks comment on
this option in general and on the use of
facility-wide corrective action authority
for CKD that is mismanaged. EPA seeks
comment in particular on likely cost,
incurred as a result of facility-wide
corrective action, taking into account
the flexibility that the corrective action
program allows.
3. Manifest, Recordkeeping, and
Reporting Requirements
EPA is proposing in today's rule that
manifest, recordkeeping, and reporting
requirements established in parts 262,
264. and 265 apply to hazardous cement
kiln dust that is subject to provisions
proposed under part 266-subpart I. The
principal purpose of the manifest
system is to track hazardous waste from
its point of generation, through its trip
with the transporter, to final disposition
off-site at a treatment, storage, and
disposal facility. Part 262 also contains
general requirements for facilities that
manage hazardous waste on-site.
Subpart E of parts 264 and 265 specifies
requirements concerning the return of
the manifest to the facility which
generated the waste. These requirements
form the information loop designed to
assist the CKD waste generator, who is
responsible for ensuring that hazardous
CKD waste actually arrives at the
intended facility for disposal.
Subpart E of parts 264 and 265 also
includes requirements for recordkeeping
and reporting. The purpose of these
requirements is to ensure that the
regulated community complies with
hazardous waste regulations by
providing the enforcement agency with
sufficient information to monitor facility
operations. Together with the manifest
system, these requirements are designed
to minimize the likelihood of damage
case incidents resulting from improper
tracking and waste disposal. In addition,
the Agency believes that the various
records, reports, and signatures of
transporters, treaters, and disposers are
necessary to allow enforcement officials
to assign responsibility and, ultimately,
liability in cases'where problems arise.
B. Implementation of Part 259 and
RCRA Subtitle C Backup Standards
Today's proposed standards for the
proper management of CKD are
contained in part 259 of the RCRA
Subtitle D regulations. Subtitle D of
RCRA establishes a framework for
Federal and State cooperation in
controlling nonhazardous solid wastes.
As discussed above, so long as CKD is
managed according to the standards of
part 259, CKD would be managed in a
way that is protective of human health
and the environment and would not be
considered hazardous waste. In
proposing standards under part 259,
EPA is providing minimum standards
for protecting human health and the
environment from the hazards of CKD.
The actual planning and direct
implementation of the standards under
part 259, however, remain outside the
RCRA Subtitle C framework, so long as
a facility remains in compliance with
the standards and thereby maintains
compliance with today's proposed rule.
As discussed earlier, EPA is today
proposing that the EPA Regional
Administrator (or the State, in
authorized States) be allowed to review
and consider alternative CKD landfill
designs and make determinations
whether or not they meet today's
proposed performance standards. The
performance standards in today's
proposed rule are structured to allow
flexibility to consider numerous
location specific factors in tailoring
facility requirements.
Similarly, EPA is also proposing that
facility plans for ground-water
monitoring, corrective action, closure
and post-closure care, and financial
assurance be reviewed and approved by
the EPA Regional Administrator (or the
State, in authorized States). Because
EPA does not directly regulate non-
hazardous solid waste under RCRA,
today's proposed rule would not create
enforceable requirements for CKD
management, but only conditions for
avoiding Subtitle C regulation.
However, EPA expects that when States
adopt the part 259 standards they will
likely adopt them, not only as
conditions, but also as directly
enforceable requirements in Subtitle D
programs. In that case, the Subtitle D
program would be the primary means'
for regulating CKD.
In authorized States. EPA anticipates
that there will be a high degree of
cooperation between State RCRA
Subtitle D programs (which will most
likely implement the part 259
standards) and State RCRA Subtitle C
programs. For example, because failure
to comply or take appropriate corrective
action within the time frames proposed
today under §§259.41, 259.44, 259.45,
259.46, and 259.47 to ensure
compliance with any of the standards
proposed today under part 259 would
mean that the CKD is mismanaged, and
considered a hazardous waste. If a State
uses its RCRA Subtitle D program to
conduct inspections or oversight of
cement kilns, violations of the standards
and/or failure to take appropriate
corrective action within the specified
time frames should be reported to the
RCRA Subtitle C program, as well.
1. Enforcement
Although the Part 259 standards
proposed today would likely be adopted
as a matter of State law, Federal
inspection authority would still be
available for facilities regulated under
those standards. Because significant
violations of the standards would
constitute mismanagement of-CKD and
would result in designation of such CKD
as hazardous waste, EPA (as well as
State RCRA Subtitle C programs) would
have authority to inspect such facilities
to determine whether they were
handling hazardous waste (i.e.,
mismanaged CKD waste). In today's
proposed regulatory structure EPA has
included the list of violations that
would cause CKD to be designated as
hazardous waste in §261.4 (Exclusions).
In this section the Agency has clarified
that all CKD managed in compliance
with today's proposed Part 259
standards remains a non-hazardous
waste. CKD becomes a listed hazardous
waste if it fails to comply with the
provisions of §261.4(b)(8)(ii)(A) and (B)
which are described below. Thus, if the
person CKD waste is managing CKD
inconsistently or in a manner that does
not comply with the Part 259 standards,
it would be subject to Federal
enforcement under regulations proposed
today in §261.4(b)(8)(ii), to compel
compliance with RCRA Subtitle C
requirements proposed today in Part
266. EPA solicits comment on whether
it would be more appropriate to list the
provisions in another section of the
Code of Federal Regulations such as
§ 261.3 (Definition of Hazardous Waste).
In general, EPA believes that facilities
should not necessarily be fully
subjected to RCRA Subtitle C for every
violation of today's proposed
management standards. Therefore, EPA
distinguishes between significant
violations which should cause the
facility to be regulated under RCRA
Subtitle C, and other violations which
should not have that result if they are
promptly corrected. Proposed
§ 261.4 (b) (8) (ii) (A) enumerates the
"egregious" violations that would
trigger RCRA Subtitle C regulation
immediately which would include: (1)
Failure to make any applicable
demonstration requirements for new
CKD landfills as specified under
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§§259.11 (a), 259.12(a), 259.13(a),
259.14(a), 259.15(a) and 259.16(a); (2)
failure to manage CKD destined for sale
or beneficial use in a suitable
containment structure, as specified
under § 259.20, within two years after
the effective date of the final rule,
unless granted approval by the EPA
Regional Administrator (or the State, in
authorized States) under §259.20(c) to
implement alternative measures for
fugitive dust control; (3) failure to cover
or dispose of CKD in a conditioned state
by 90 days after the effective date of the
final rule, as specified under §259.22,
unless granted approval by the EPA
Regional Administrator (or the State, in
authorized States) under §259.22(d) to
implement alternative measures for
fugitive dust control; and (4) failure to
install a composite landfill liner or
ground-water monitoring system, as
specified by §§259.30 and 259.41, by
two years after the effective date of the
final rule, unless granted approval by
the EPA Regional Administrator (or the
State, in authorized States) for a unit
design under the provisions of
§ 259.30(h), or a finding is made of no
potential for migration under
§ 259.40(b); (5) failure to undertake
appropriate corrective action within the
time frames specified under §§259.41,
259.44, 259.45, 259.46, and 259.47; and
(6) failure to comply with any
requirement identified in a notice
received from the Regional
Administrator (or State) because of
repeated violations of Part 259, other
than those specified in subparagraphs
(1) through (5) of this paragraph.
Under proposed §261.4(b)(8)(ii)(A)(7),
EPA will also consider repeated
violations of Part 259's lesser
requirements as a significant violation.
Under this provision, if EPA determines
that a person managing CKD waste
repeatedly violates one or more lesser
requirements under Part 259, the
Agency can send notice to that person
informing him or her that the next
violation of such lesser requirements
will constitute a violation of
§ 261.4 (b) (8) (ii) (A), thereby causing any
managed CKD to be considered
mismanaged and a hazardous waste.
EPA believes this provision is warranted
because it provides the appropriate
incentive for facilities to comply with
all of Part 259 requirements, including
notice and recordkeeping requirements.
In proposed §261.4(b)(8)(ii)(B),
violations of any standards of Part 259
other than those listed in
§261.4(b)(8)(ii)(A), will only trigger
Subtitle C regulation if the person
managing CKD waste fails to comply
with those standards within 30 days of
receiving a written notice of non-
compliance from the Regional
Administrator (or State). This provision
gives thg regulatory agency an £
intermediate enforcement response
mechanism for violations of lesser Part
259 requirements that have not risen to
a level that would trigger notice under
§261.4(b)(8)(ii)(A)(7).
As an alternative to allowing 30 days
after receiving a written notice, EPA
solicits comments on adopting a
minimum period (for example, 90 days)
to correct violations as a matter of
enforcement policy. Under the
enforcement policy approach, EPA
would generally not commit to take any
enforcement action that would result in
RCRA Subtitle C regulation for a period
of 90 days after the date of violation,
unless there were unusual or
• aggravating circumstances. If the
violation is corrected in that period of
time (or, in the case of a violation that
cannot be corrected, if steps are taken to
prevent recurrence), EPA would not
take enforcement action.
Under the regulatory approach, if a
State adopted today's proposed
approach, EPA would not have
jurisdiction to bring an enforcement
action for a lesser violation (that is, a
violation not listed in
§261.4(b)(8)(ii)(A)) until 90 days had
passed from the date of violation. Under
the enforcement policy approach, EPA
would have jurisdiction to bring an
enforcement action, but would commit
not to do so. EPA's enforcement policy
would not bind the State, but EPA
would encourage States to adopt a
similar approach. (In this respect, the
two approaches are similar: if EPA
adopted today's proposed approach, it
could not preclude a State from
adopting regulations that did not allow
the 90-day window-to correct lesser
violations.36
EPA seeks comment on these two
approaches as well as on the general
approach of distinguishing between
lesser and egregious violations. In
particular, EPA asks commenters to
address the issues of regulatory
jurisdiction, appropriate incentives to
discover and correct violations, what
constitutes egregious and lesser
violations (e.g., whether certain
paperwork violations, such as the
failure to notify the regulatory authority
of a violation, should be considered
egregious), and the handling of cases
36 Under either version, today's proposed rule
would provide the opportunity to implement
corrective action for releases to ground water. An
exceedance of ground-water standards by itself
would not cause be considered mismanaged: only
if a person managing CKD waste failed to meet the
corrective action requirements in the rule would it
become subject to Subtitle C regulation.
where violations are discovered well
after they occurred. The Agency also
seeks comment on the question of
whether or not the proposed
enforcement structure, with the two •
regulatory categories of egregious and
lesser violations, provides an incentive
for persons managing CAD waste to
inform the Regional Administrator of
violations. If not, the Agency seeks
comment on alternative structures; for
example, on whether there is a category
of violations intermediate between
egregious and lesser. Additionally, the
Agency also seeks comment on the
proposed 90 day time frame to correct
lesser violations before CKD is
considered mismanaged.
As with all environmental issues,
citizens are encouraged to be involved.
Where citizen's bring a concern to EPA's
attention, the Agency will respond on a
case-by-case basis. In addition, RCRA
authorizes citizens to enforce
requirements pursuant to section
7002(a)(l)(A): "any person. * * * to be
in violation of any permit, standard,
regulation, condition, requirement,
prohibition, or order which has become
effective pursuant to this Act". This
provision allows citizens to enforce both
Subtitle C and Subtitle D requirements.
Therefore, citizens could commence a
civil action to enforce the Subtitle C
requirements applicable to CKD that is
not managed in compliance with today's
proposed Part 259 standards.
Where a violation occurs that can be
corrected, the Agency believes a person
managing CKD waste who promptly
corrects the problem should not
necessarily be subjected to hazardous
waste requirements on a permanent
basis. In some cases, the nature of the
violation may be such that it only affects
a distinct batch of waste. For example,
if a person managing CKD waste failed
to manage a particular truckload of CKD
according to the transportation
requirements proposed today in Part
259, that truckload would become non-
exempt and would have to be managed
as a hazardous waste (e.g., manifested
and sent to a landfill meeting the
tailored Subtitle C requirements of Part
266 for final disposal). However, if the
practice did not continue, the person
managing CKD waste would not have to
manifest other shipments or have the
facility become permitted under Subtitle
C. Other types of violations could result
in the CKD becoming subject to Subtitle
C generally.
2. Removal of a Hazardous Waste
Designation
EPA believes that in some cases it
may be appropriate for CKD that has
been mismanaged to be again
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considered non-hazardous waste. For
example, if a person managed CKD
waste in a landfill that released metals
enough to raise levels in ground water
above appropriate MCLs, but later
repaired the landfill and did not have
other violations of the standards,
requiring a RCRA Subtitle C permit
might not be warranted. For these cases,
EPA today proposes a procedure in
§ 266.121 under which the designation
as hazardous waste would be removed.
Under this process, if any CKD waste
becomes mismanaged (i.e., loses the
exclusion under §261.4 (b) (8)) and
becomes subject to §266.120, the person
managing such waste may apply to the
Regional Administrator (or the State, in
authorized States) for removal of the
hazardous waste designation for such
CKD. The application must include: (1)
A statement that the CKD waste is now
being managed in accordance with
§ 259; (2) a statement explaining the
circumstances of the non-compliance;
and, (3) a demonstration that the non-
compliance is not likely to recur and
that removal of the hazardous
designation would not pose a threat to
human health and the environment. The
Regional Administrator may reinstate
the § 261.4 (b) (8) exclusion if the
Regional Administrator finds that the
person managing CKD waste has
satisfactorily explained the
circumstances of the non-compliance,
has demonstrated that the non-
compliance is not likely to recur and
that removal of the hazardous waste
designation will not pose a threat to
human health or the environment. The
Regional Administrator may reinstate
the §261.4(b)(8) exclusion with
additional conditions if the Regional
Administrator finds that such additional
conditions are necessary to ensure
protection of human health and the
environment.
Removal of the hazardous designation
is not automatic, but the Agency is
today proposing that if the Regional
Administrator does not take action on
the application within 60 days, then the
application for removal of the hazardous
waste designation is deemed granted,
retroactive to the date of the application.
However, the Regional Administrator
may terminate a removal (i.e., a
reinstatement of the §261.4(b)(8)
exclusion) by default under this
subsection if the Regional Administrator
finds that the removal of the hazardous
waste designation is not appropriate
based on analysis of the factors included
in the application.37 Today's proposed
approach is patterned on that adopted
in the conditional exemption for
military munitions, promulgated
February 12, 1997 (see 62 FR 6637-38,
February 12, 1997, Military Munitions
Rule: Hazardous Waste Identification
and Management; Explosives
Emergencies; Manifest Exemption for
Transport of Hazardous Waste on Right-
of-Ways on Contiguous Properties; Final
Rule). EPA solicits comment on whether
this procedure should be provided for
CKD, and under what circumstances
(and for what violations) it should or
should not be available. For example,
EPA would want to assure that the
procedure could not be used repeatedly
by a person managing CKD waste who
was making no serious effort to comply
until violations were called to its
attention by inspectors.
EPA notes that releases from a CKD
disposal unit do not, under today's
proposed rule, automatically constitute
a violation of the Part 259 standards. If
the unit was designed and constructed
in accordance with the design
requirements, but a release nevertheless
occurs, the CKD remains, exempt so long
as it complies with the corrective action
requirements in the Part 259 standards.
In implementing today's proposed rule
in authorized States, EPA anticipates
there will be a high level of cooperation
between State Subtitle D and State
Subtitle C programs. Based on
conversations with State environmental
representatives, the Agency anticipates
that State D programs will generally take
the lead in assuring compliance with
today's proposed standards by
conducting inspections of CKD landfills
and their associated facility operating
records. If a violation of today's
proposed standards is documented as a
result of a State inspection, or a facility
reports to the State that a release of
contaminants to the environment has
occurred, under provisions of §259.46,
today's rule would allow persons
managing CKD waste 90 days to assess
corrective measures. Under §259.47, the
person managing CKD waste must select
a remedy within 90 days of completing
the assessment, and specify a schedule
for initiating and completing remedial
activities. Under regulations proposed
today in §259.47(e), the State would
have flexibility to set an alternative
schedule for compliance.
Once a State program makes a final
determination of non-compliance, (that
is, after allowing a minimum of 270
days from the date of violation or
notification of the State for the person
managing CKD waste to begin
37 If a person managing CKD waste submits a
petition for reinstatement that is subsequently
revoked, it would be Agency policy to consider
such a default .reinstatement to be prospective: that
is, beginning at the point the decision is made.
implementation of corrective measures,
the State program director makes a
determination that a person managing
CKD waste has mismanaged CKD), the
CKD managed at such a facility would
be hazardous waste, and subject to the
proposed provisions-of Part 266.
Accordingly, responsibility for
implementation and enforcement of the
provisions of today's rule shifts to the
hazardous waste program authority
(either the EPA Regional Administrator
or, in an authorized State, the State
Subtitle C program). The EPA Regional
Administrator (or the State, in
authorized States) would review and
approve Subtitle C permits under 40
CFR 270.68, assure compliance with the
hazardous waste generator requirements
of 40 CFR Part 262, and assure
compliance with the hazardous waste
manifest, recordkeeping, and reporting
requirements of 40 CFR Parts 264 and
265.
3. Alternative Approach to Structuring
the Performance Standards
Today's proposed standards are
generally written in the form of
performance standards. In complying
witii the performance standards; a
person managing CKD waste would
have to develop an approach, make a
demonstration to the Regional
Administrator (or the State in
authorized States) that the intended
approach will achieve today's proposed
performance standards, and receive
approval by the regulatory authority
prior to implementing the approach.
Representatives from the cement
industry have suggested an alternative
regulatory structure in which the
Agency would establish a general
performance standard to be achieved by
the person managing CKD waste
without a requirement that the approach
receive prior approval by the Regional
Administrator. The Agency seeks
comment on the appropriateness and
specifics of such an approach.
Stakeholders have expressed concerns
about the industry's suggested
alternative structure regarding the
uncertainty of the public participation
process, specifically about whether and
how the affected public would be able
to participate in decisions made by
persons managing CKD waste regarding
compliance with today's proposed
performance standards. EPA believes
that the public has a vital role to play
in decisions that affect their health and
the environment. Additionally, when
appropriate, the Agency has been
supportive of self-implementation
because such an approach can lead to
regulatory compliance within a shorter
time frame than might otherwise be
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possible. Thus, EPA is soliciting
comments on alternative regulatory
structures that would allow persons
managing CKD waste to implement
pollution controls designed to meet the
performance standards without the
procedural burden of seeking approval
from the regulatory authority. The
Agency is interested in information on
how such an alternative structure would
allow persons managing CKD waste to
demonstrate their design is adequate to
meet today's proposed performance
standards, while ensuring opportunities
for the public to participate in the
deliberations and decision making
undertaken by the persons managing
CKD. EPA believes that a process which
expeditiously identifies and resolves
compliance issues prior to construction
is in the best interest of all parties.
The Agency is aware of one such
approach. In 1995, as part of its
proposed approach to establishing an
enforceable agreement (see Section
II.C.2—Proposed Enforceable
Agreement), the cement industry
submitted to EPA a draft plan for site-
specific public participation. Their plan
was designed to allow self-
implementation of the provisions of the
enforceable agreement with citizen
input, but without the time-consuming
process of permitting (or seeking
approval by the Regional Administrator
or the State). The industry's comment
and appeal process included the
following elements: (1) Notification of
citizens when a person managing CKD
has prepared a design plan and intends
to submit a certification to the
regulatory authority that their proposed
design plan will meet a specific
performance standard; (2) a 45 day
comment period in which the public
could submit relevant comments to the
facility (for example, comments
germane to the performance of the
proposed design); (3) preparation by
facility representatives of a document
responding to the substance of all
relevant comments; (4) announcement
by facility representatives of the
availability of the final design plan and
comment response document; (5)
opportunity for appeal to the
appropriate regulatory authority within
30 days after the date of announcement
of the final design plan; (6) arbitration
by the regulatory authority affording
both the commenter and facility
representatives an opportunity to
present their positions, and a final
determination by the regulatory
authority, no more than 60 days after
facility representatives have filed a
response to the commenter's appeal on
whether the commenter has
demonstrated that the proposed design
plan would,fail to provide for «
compliance with the performance
standard; and (7) opportunity for
judicial review of the regulatory
authority's decision in federal district
court.
. Representatives of local citizen groups
criticized this public participation
process as being inadequate, both
structurally and substantively. Their
comments on the public participation
process include the following: (1) All
significant decisions regarding design,
monitoring, and cleanup are left to
facility owners and operators; (2) public
comments and appeal rights are limited
in both time and scope; (3) access to
documents is limited only to the design
plan and not to other important
information such as data used to
support the design plan, monitoring .
data, and inspection reports; and (4)
involvement by the regulatory
authority's staff is limited to a 60 day
time period and consideration of
comments specific to the design plan.
A second alternative regulatory
structure would be similar to EPA's
approach proposed in today's rule, but
would establish a time frame for design
approvals within which the regulatory
authority must make a determination of
the appropriateness of the technical
approach proposed by the person
managing CKD waste.'A time frame of
six months might be sufficient, and
would add a degree of certainty to the
process of prior approval. If the
regulatory authority failed to take action
within the specified time frame, the
proposed approach for controlling CKD
waste would be presumed adequate to
ensure compliance with the
performance standard. The Agency is
seeking general comment on these two
alternative regulatory structures and on
other potential approaches to protecting
human health and the environment
while minimizing procedural burdens
that could delay implementation of
appropriate means of controlling risks
posed by CKD.
VI. Standards for CKD Used as a Lime
Substitute
A. Summary
EPA is proposing to exclude from
regulation under RCRA CKD that is used
as a liming agent on agricultural fields
provided that such CKD meet specified
levels for concentrations of certain
hazardous constituents. As explained in
Section H.D. (Beneficial Use of Cement
Kiln Dust) in this preamble, CKD is
currently being used as a substitute for
agricultural liming agents. Liming
materials are added to agricultural soils
to maintain optimum pH for crop
production and offset the effects of
fertilizers that lower soil pH. EPA
encourages environmentally sound
beneficial use of production process
waste streams, including CKD.
However, the benefits associated with
the recycling of CKD must be balanced
against the potential hazards which the
use of CKD in this manner may also
present. CKD contains toxic metals and
chlorinated dioxins and furans which
can, at high exposure levels, present
adverse human health effects. In an
effort to determine whether use of CKD
for pH adjustment on agricultural soil
presents a potential threat to human
health and the environment, the Agency
conducted an assessment of the risk to
individuals from the use of CKD as a
liming agent. A summary of the risk
analysis and results is provided below.
Further description of the risk
assessment is presented in the technical
background document titled Risk
Assessment for Cement Kiln Dust Used
as an Agricultural Soil Amendment in
the docket for this rule.
Based on the risk analysis, EPA
calculated concentration limits that are
protective of human health for
hazardous constituents in CKD that is
used as an liming agent on agricultural
fields and home gardens. The numerical
limits derived from the exposure
assessment models are designed to
protect human health and the
environment from reasonably
anticipated adverse effects. The Agency
calculated risk-based protective limits
for all hazardous metals and dioxins
present in CKD. By comparing the risk-
based concentrations derived for each
constituent with data on the
composition of CKD, EPA identified
constituents that may be present in CKD
above levels that may pose risk to
human health. Those constituents are
arsenic, thallium, lead, cadmium and
chlorinated dioxins and furans. EPA's
analysis showed that all other toxic
constituents in CKD are present at
concentrations that are well below
protective levels. Based on these
findings, EPA is today proposing to
limit the concentrations of arsenic,
thallium, lead, cadmium and
chlorinated dioxins and furans that can
be present in CKD that is used
agriculturally for pH adjustment. In
other words, EPA is proposing
standards to limit the concentrations of
arsenic, thallium, lead, cadmium, and
dioxins that can be contained in CKD
that is used as a substitute for
agricultural lime because the Agency's
risk analysis indicates that these
compounds are present in CKD in :
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excess of levels that may pose risk to
human health when CKD is applied at
rates necessary to attain the desired
increase in pH. The Agency is
concerned that unregulated use of CKD
as an agricultural liming agent may
cause adverse effects on human health.
B. CKD Agricultural Use Risk
Assessment
1. Risk Assessment Methodology
This section describes the
methodology used to evaluate human
health risk to individuals from use of
CKD as an agricultural liming agent.
EPA's risk analysis evaluated exposures
to metals and dioxin congeners in CKD
for the following receptor scenarios;
farmer, fisher, home gardener, and child
of farmer. The assessment includes a
preliminary sensitivity analysis to
identify risk-driving parameters, a
deterministic analysis to estimate
central tendency and high end risk, and
a quantitative uncertainty analysis.
Initial estimates of potential risk from
agricultural use of CKD were estimated
using the deterministic method, which
produces point estimates of risk to
individuals based upon single values for
input parameters (e.g.. waste stream
characteristics, environmental fate and
transport properties, exposure
assumptions, etc). The deterministic
risk estimates for this analysis were
derived using a double high-end risk
assessment methodology. In this
method, the input parameters are varied
between the central tendency (50th
percentile) value and the high end (90-
95th percentile) value both individually
and in combination of any two
independent variables to produce a
series of point risk estimates. The point
estimate in which all variables are set at
central tendency is assumed to be the
central tendency risk estimate and the
highest risk estimate for any
combination of double-high-end
variables is assumed to be the high end
estimate (approximately 95th percentile)
of risk. High-end risk descriptors are
plausible estimates of the individual
risks for those exposed persons at the
90th percentile or greater end of the risk
distribution. High-end risk is intended
to depict the risks that are expected to
occur in 10 percent or less of the
exposed population.
The Agency also conducted a
probabilistic analysis of uncertainty/
variability in support of the
deterministic analysis. The Agency has
long acknowledged the importance of
adequately characterizing variability
and uncertainty in fate, transport,
exposure and dose-response
assessments for human health risk
assessment as indicated in EPA's May
15, 1997 policy memorandum on Use of
Probabilistic Techniques in Risk
Assessment. The probabilistic analysis
undertaken for this analysis has been
conducted in accordance with the
guidance set forth in the May 15, 1997
memorandum. The first step of the
probabilistic analysis is a sensitivity
analysis using the deterministic
methodology to-determine the risk-
driving parameters. Results of the
sensitivity analysis are provided in the
technical background document for this
assessment. After the risk-drivers are
determined, the quantitative
uncertainty/variability analysis is
conducted by performing a Monte Carlo
simulation by randomly varying the
risk-driving parameters. A more detailed
discussion of parameters that were
included in the Monte Carlo analysis
and selection of data distributions for
each parameter is provided in the
technical background document
describing the risk assessment
supporting this rule.
2. Human Health Criteria and Effects
The risk analysis uses chemical
composition data collected and used for
the 1993 Report to Congress on CKD, the
1994 NOD A on CKD and background
document supporting the 1995 CKD
Regulatory Determination. Individual
constituents of concern evaluated in the
assessment included dioxins and the
following metals: antimony, arsenic,
barium, beryllium, cadmium,
chromium, lead, nickel, mercury,
selenium, silver and thallium. These
constituents were evaluated based on
chemical specific health based levels
established and/or verified by EPA
using prescribed methodologies for
evaluating human effects data. The
human health toxicity benchmarks used
in this analysis include Agency-verified
oral reference doses (RfDs) and
reference concentrations (RfCs) for
noncancer effects and oral cancer slope
factors (CSFs) and inhalation unit risk
factors (URFs) for carcinogenic effects.
Agency-verified RfDs, RfCs, CSFs, and
the bases for these values are presented
in the EPA's Integrated Risk Information
System (IRIS). The benchmarks for the
dioxin and furan congeners are based on
the Toxicity Equivalent Factor (TEF) for
2,3,7,8-tetrachlorodibenzo dioxin
(TCDD2). The methodology for
calculating TEFs for dioxin and furan
congeners is presented in the 1994 EPA
publication entitled Estimating
Exposures to Dioxin-Like Compounds.
(EPA publication number EPA/600/6-
88/005Ca)
3. Agricultural Use Practice
Assumptions
Agricultural use practices (i.e.,
application rate and frequency) used in
the analysis are determined based on
chemical and physical properties of soil
and CKD that influence use of CKD
agriculturally as well as economic
considerations that affect CKD use. The
quantity of liming material required per
acre to raise the pH to an acceptable
level is determined by several factors
includingjdesired change in pH,
buffering capacity of the soil, chemical
composition of the liming agent and
particle size of the liming material.
When these factors are considered, the
rate of application is usually 2 to 5 tons
per acre and the application frequency
is once every 2 to 5 years for all liming
agents, including CKD. EPA solicits
comment on the appropriateness of
using this rate and frequency of
application as assumptions in its
analyses.
4. Fate and Transport of Chemical
Constituents in the Environment
The application of CKD as a liming
agent is assumed to occur only in areas
with initial soil pH of less than 6 and
areas that are near active cement kilns
generating large quantities of CKD.
Based on these criteria, three sites,
Holly Hills, South Carolina, Alpena,
Michigan, and Ravena, New York were
selected for modeling. Site specific
meteorologic and soil properties data
from these locations were used in both
the deterministic and uncertainty
analysis. While meteorologic conditions
were evaluated in the sensitivity
analysis and were not shown to be a
primary risk driver, the three locations
modeled represent a range of
meteorologic conditions.
The Agency relied on the following
models to simulate movement of
pollutants into and through the
environment. Speciation of metals in
CKD applied agriculturally was
determined through MINTEQ modeling
using available site specific soil and
meteorologic data identified for each
geographic setting. Equations developed
by Jury, et al., were used in a
spreadsheet calculation model to
determine contaminant loss from CKD
due to degradation, volatilization,
leaching, and rainwater runoff of
dioxins and metals. The model-tracks
the average annual soil concentration
and the annual mass of contaminant
volatilized for a period of 100 years
followed by 40 years of inactive use.
While the Agency assumed that CKD
can be applied to a field over a period
of 100 years, modeling indicates that the
system will reach steady state
concentrations over a period of 40 to 50
years for persistent chemicals such as .
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45663
most metals and dioxins. The Universal
Soil Loss Equation (USLE) as modified
by EPA's Offices of Solid Waste and
Research and Development was used to
estimate soil erosion and overland
transport of sediment from agricultural
fields amended with CKD across
intervening areas to nearby water
bodies. Air emissions from CKD due to
wind erosion were estimated using
methods and equations from EPA's
Compilation of Air Pollutant Emission
Factors, Volume I: Stationary Point and
Area sources, Fifth Editions (commonly
referred to as AP-42). Air dispersion of
particulates was modeled using the
EPA's Industrial Source Complex Short
Term, version 3 (ISCST3).
5. Uptake of Contaminants in Plants and
Animals
Plants may absorb contaminants
through air-to-plant biotransfer and
through soil-to-plant uptake through the
roots. Air-to-plant movement of dioxins
was estimated using constituent-specific
biotransfer factors specifically
developed for dioxin congeners by
EPA's Office of Research and
Development (ORD). Plant-to-soil
bioconcentration factors were used to
account for root uptake of constituents
from the soil. The bioconcentration
factors for metals were obtained from
the assessment conducted for EPA's
Standards for the Use or Disposal of
Sewage Sludge. EPA recognizes that
these biouptake factors were developed
based on field studies of sewage sludge
application and pertain specifically to
sewage sludge. Uptake of metals is
particularly sensitive to soil pH and the
degree of binding to the sludge matrix.
The sewage sludge values may not,
therefore, be appropriate for evaluating
plant uptake of metals from CKD. The
Agency requests comment on whether
the use of these biotransfer values is
appropriate for assessing risks from
agricultural use of CKD. Biotransfer
factors not available from the sewage
sludge assessment were obtained from
the published literature. Empirical
correlations were used to estimate
transfer of dioxins from the soil to plant
tissue using the methodology developed
for dioxins by ORD. Metals, dioxin, and
furan concentrations in beef and dairy
fed on vegetation amended with CKD
were estimated using constituent
specific beef and milk biotransfer factors
available in the literature.
6. Receptor Scenarios and Exposure
Pathways
Receptor scenarios evaluated for this
assessment include farmer, fisher, home
gardener, and child of farmer. Exposure
pathways evaluated for each receptor
scenario are as follows. For the child of
farmer, pathways evaluated include
incidental ingestion of contaminated
soil, ingestion of plants grown on
amended soil and ingestion of products
from animals raised on feed from CKD
amended fields. Pathways evaluated for
the farmer include those evaluated for
the child of farmer and, in addition,
direct inhalation of vapors and
particulates during application of CKD
to the field. For the home gardener,
pathways include incidental ingestion
of contaminated soil and ingestion of
plants grown on amended soil.
Exposure from ingestion of
contaminated fish is evaluated for the
fisher receptor scenario. The
groundwater exposure pathway (i.e.,
ingestion of contaminated groundwater)
' was not evaluated for this analysis
based on the results of the previously
conducted analyses of risk from storage
and disposal of CKD waste. Previous
ground-water modeling results
indicated limited potential for the
transport of constituents bound in a
CKD matrix. Although new ground-
water modeling indicates that metals,
including lead, barium, beryllium,
chromium, and cadmium, may be more
mobile under highly alkaline
conditions, the Agency does not believe
these conditions will occur in CKD-
amended soils. CKD is added to raise
the pH of acidic soils to neutral pHs. A
pH range of 6.0-7.2 is optimal for most
crops. Highly acidic or highly alkaline
soils, on the other hand, have been
associated with phytotoxicity and/or
nutrient imbalance. Consequently,
highly alkaline conditions are unlikely
to occur in CKD-amended agricultural
soils. Furthermore, the ground-water
analyses conducted in support of the
Report to Congress and the Regulatory
Determination analyzed risks from the
storage, management and disposal of
CKD. Under neutral pHs, the
groundwater risks associated with the
management of large volumes of CKD in
non-karst areas was estimated to be low.
The volume of CKD applied in
agricultural soils is far less than the
volume typically managed in a disposal
unit. Therefore, EPA believes that the
risks from the ground-water pathway
will be negligible based on the typical
pH of CKD-amended soils and the
limited volume of CKD applied to soils.
The exposure factors used in this risk
analysis are from the Draft 1996
Exposure Factors Handbook. This is one
of the first EPA risk assessments to use
these factors in either a deterministic or
probabilistic analysis. Therefore, the
Agency used conservative consumption
and exposure distributions in instances
where there was uncertainty regarding
how the data presented in this
document should be used. The Agency
specifically requests comment on the
exposure factors used in this analysis.
7. Lead Risk Assessment
The human health risk assessment
conducted for lead is unique. The
primary indicator of exposures to lead is
elevated blood lead levels. Therefore,
exposure to lead is estimated based on
comparison of predicted blood lead
level in exposed individuals to a target
blood lead level. In addition, evaluation
of lead exposure focuses specifically on
young children (birth to 7 years of age)
because this age group is known to be
highly sensitive to lead exposure. Given
the unique nature of lead, EPA
developed the Integrated Exposure
Uptake Biokinetic Model (IEUBK) to
evaluate child lead exposure from birth
to age 7. EPA used the IEUBK model to
assess lead risks from agriculturally
applied CKD. This model integrates lead
exposures from diet, soil, dust, drinking
water, and air and considers elimination
of lead from the body to predict blood
lead levels. For the CKD agricultural use
analysis for lead, estimates of risk to
children are determined by comparing
total blood lead level estimated by the
IEUBK model with a threshold value of
10 ng Pb/dL. Adverse health effects from
lead exposure have been observed to
occur at or above this level.
For this analysis, blood lead levels
were estimated using the default soil
intake rates provided in the IEUBK
model. Default IEUBK soil ingestion
rates differ from those used elsewhere in
this analysis to estimate risk from other
hazardous constituents in CKD. Soil
ingestion rates used for lead are
presented in Section 6.0 of the technical
background document. Soil ingestion
rates used for other constituents are
presented in Section 5.0 of the
background document. With the
exception of soil ingestion rates, EPA
used the same model inputs (e.g.,
constituent concentrations, dietary
ingestion rates, application rates) to
estimate risks from exposures to both
lead and other hazardous constituents
in CKD.
8. Ecological Risk and Phytotoxicity
The Agency did not conduct a
separate assessment of potential
ecological risks or phytotoxic effects
posed by use of CKD as a liming agent
on agricultural fields. Rather. EPA relied
on the assessment conducted by EPA's
Office of Water for the Standards for the
Use or Disposal of Sewage Sludge (40
CFR Part 503 et al.) as a basis for
evaluating potential risks to ecological
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receptors and/or toxic effects on plants
resulting from land application of-CKD.
For this analysis, the range of soil
concentrations for metals in soil
estimated in the CKD risk analysis is
compared to the phytotoxiciry and soil
organism benchmarks reported in the
Technical Support Document for Land
Application of Sewage Sludge—Volume
I (NTIS publication number PB93-
110575). Values for ecological
benchmarks are only available for 4
constituents in CKD, lead,_ nickel,
chromium, and cadmium. Results of
this analysis are provided in the Risk
Assessment for Cement Kiln Dust Used
as an Agricultural Soil Amendment in
the docket for this rule. In summary, a
comparison of these ecological
benchmarks to the constituent
concentrations in CKD amended soil
estimated by the CKD risk analysis
shows that the CKD soil concentrations
are well below these benchmarks in all
cases. The Agency requests comment on
whether phytotoxiciry and ecological
risk are adequately addressed by this
analysis.
9. Risk Assessment Results
The results of the risk assessment
show an estimated high-end individual
lifetime cancer risk of 3x10 ~5 due to
arsenic and an exceedance of the non-
cancer effect threshold or hazard
quotient for thallium for a farmer and
child of farmer consuming products
from animals raised on feed grown on
CKD-amended fields. Based on these
findings, EPA believes there is a need to
establish standards to protect public
health and the environment from
adverse effects of certain constituents
that may be present in CKD used
agriculturally.
C. Approach to Establishing Limiting
Concentrations
I, Risk-based Approach—Proposed
Limiting Concentrations for Cadmium,
Lead, and Thallium
The Agency used the exposure
assessment modeling methodology
described above to establish constituent-
s'pecific numerical limits for hazardous
constituents (metals and chlorinated
dioxins and furans) in CKD that is used
in lieu of agricultural lime. As a first
step, potential human health risks from
exposure to hazardous constituents
were evaluated for specified exposure
scenarios using the constituent
concentrations, toxicity data, exposure
assumptions, soil property data and fate
and transport models outlined in the
previous section. The limiting
concentrations for individual
constituents were then derived using a
point estimate approach as follows. All
application parameters (rate, frequency,
depth of incorporation) were set at
constant at high end values (i.e., values
that are at the upper end of the
distribution of application practices).
CKD was assumed to be applied over a
period of up to 100 years. The Agency
believes this to be a reasonably
conservative assumption based on
consultation with agricultural experts
knowledgeable in the use of soil
amendments. All other variables (e.g.,
exposure parameters) were varied
between central tendency and high end
values one or two at a time in order to
obtain the highest risk value for each
hazardous constituent. The highest risk
value was then used to back calculate
maximum constituent concentrations at
which adverse health effects from any
single constituent do not exceed a
lxlO~5~individual lifetime cancer risk
or a non-cancer hazard quotient of 1 for
any potential human exposure route
(e.g., air, food chain, etc.). For lead the
maximum constituent concentration
was back-calculated based on a target
blood lead level of 1 Dug Pb/dL.
EPA ^conservatively assumed a high
rate and frequency of CKD application
(within the range of application rates
and frequencies that are considered to
be agronomically viable) to set
regulatory limits for hazardous
constituents in CKD. The Agency
assumed that CKD application will not
exceed a high-end rate of 5 tons per acre
every 2 years, and that CKD may be
applied continually over a period of 100
years. EPA believes these assumptions
ensure that limiting concentrations are
protective given standard agricultural
practices used for application and
reasonably expected long term repeated
applications of CKD.
Additionally, the Agency believes that
establishing concentration limits that
are protective at plausible high end
application practices will make
implementation of regulatory limits less
burdensome on both the regulated
community and EPA. Use of high end
application assumptions allows the
Agency to establish a single
concentration that is considered to be
protective for all reasonably expected
application parameters.
As an alternative approach, the
Agency could have established limiting
concentrations that would vary based on
the rate and frequency of CKD
application. This approach would have
resulted in higher (i.e.,less stringent)
cut-off concentrations in some cases,
depending on application practices
employed. However, under this
approach, the Agency would have to
impose tracking and recordkeeping
requirements as a means of ensuring
compliance with limits that would vary
based on varying application rates. Such
additional requirements would
significantly increase the complexity of
the proposed regulations and the
implementation burden on the regulated
community. By using conservative
assumptions regarding application
practices, the Agency will substantially
reduce the recordkeeping burden
associated with the implementation of
today's proposal. Furthermore, the
Agency believes that the constituent
concentration limits so established will
not unduly restrict the beneficial use of
CKD for agricultural purposes (i.e.,
based on EPA's data, most CKD meets
the proposed regulatory cut-off levels).
In selecting this approach, the Agency
also considered the fact that use of a less
conservative methodology (in which
application parameters were set at
central tendency values) would still
result in limits that, while higher or less
restrictive, are still exceeded in some
CKD for these five constituents. In
essence, use of the conservative risk
assessment methodology described
above to establish maximum regulatory
constituent concentrations enables EPA
to reduce the recordkeeping and
economic burden associated with
regulation of agricultural use of CKD but
does not result in levels that are so
stringent that they prohibit substantial
beneficial use of CKD as a substitute for
agricultural lime. For these reasons,
EPA chose to develop a single set of
constituent concentrations that are
protective at high-end application rates.
The Agency recognizes that this
approach represents a trade-off that
favors reduction of recordkeeping and
reporting burden over establishment of
less restrictive standards. The Agency
requests comment on the proposed
approach.
Today's proposed rule assumes that
CKD will be applied at rates needed to
attain the required pH adjustment and
will not be applied in excess of such
rates. Based on consultation with
agricultural experts, review of the
literature, and considering physical and
chemical properties of soil and CKD,
EPA believes that application of 5 tons
of CKD per acre every 2 years
constitutes the maximum rate of
agronomically viable application
necessary to properly control pH in
agricultural soils. Therefore, EPA's
analysis assumes that CKD use wilLnot
exceed 5 tons per acre every two years.
Given the inherent limitations on the
amount of CKD that can be applied
beneficially for the purpose of pH
control, EPA is not proposing to impose.
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regulatory controls on the agronomically
viable application of CKD. However
agronomic use of CKD to control pHin
excess of 5 tons of CKD per acre every
2 years will be considered a form of
waste disposal subject to RCRA
regulation, rather than a legitimate
beneficial use exempted under today's
proposal.
As previously noted, a comparison
between the risk-based limits
established by the Agency using the
above methodology and the
concentrations of hazardous
constituents known to be present in
CKD indicates that four metals, arsenic
thallium, lead and cadmium, may be
present in CKD at levels that pose
unacceptable human health risk
--. (adverse health effects in excess of a 1
x 10 s individual lifetime cancer risk or
non-cancer hazard quotient of 1 in
certain instances). Therefore, EPA is
proposing to establish regulatory limits
for cadmium, lead, thallium, and
arsenic in CKD that is applied to
agricultural soil for purposes of pH
adjustment. EPA is proposing to use the
methodology described above to set
protective limiting concentrations for
cadmium, lead, and thallium. EPA is
proposing to use a different
methodology to establish a limit for
arsenic, as explained later in this
section. The Agency is not proposing
limits for those constituents for which
maximum concentrations in CKD are
below concentrations determined by
E™ to be protective of human health
1 he proposed risk-based
concentration limits for cadmium, lead
and thallium are: 22 mg/kg for
cadmium, 1500 mg/kg for lead, and 15
mg/kg for thallium. Under today's
proposal, CKD that exceeds the
proposed concentration limits for these
constituents cannot be used as a liming
agent on agricultural soils. Based on
EPA's data on the composition of CKD
most CKD meets the risk-based
protective levels being proposed for
these metals and would therefore not be
prohibited from agricultural use based
on the proposed limits.
2. Risk-Based Approach—Proposed
Limiting Concentration for Chlorinated
Dioxins and Furans
The process used for setting risk-
based limiting concentrations for
chlorinated dioxins and furans
(hereafter referred to as dioxins) is
similar to that used for metals. However,
unlike metals, dioxins are comprised of
multiple individual dioxin and furan
congeners. Therefore, in order to derive
a single limiting concentration for
purposes of this regulation, the risks
from individual dioxin and furan
congeners were estimated using the TEF
methodology referenced above (see
Section VLB.2—Human Health Criteria
and Effects) and the risks from specific
dioxin and furan congeners were
summed to produce a single
concentration in terms of 2,3 7 8-TCDD
toxicity equivalents (TEQ). Based on
EPA's risk modeling using the
methodology described above, the
estimated total indirect cancer risks for
the farmer scenario from the average
North American soil background
concentrations of dioxins in the
environment is approximately IxlQ-s
The average TEQ background
concentration of dioxin and furan
congeners in soil is 8 parts per trillion
(PPt).
Therefore, to ensure that agricultural
use of CKD does not pose risks from
dioxins in excess of a IxlO-s individual
lifetime cancer risk, EPA used a target
soil concentration of 8 ppt TEQ to
derive risk-based limiting
concentrations of dioxins in CKD. The
Agency back-calculated maximum TEQ
levels for dioxins in CKD used as a lime
substitute that, when mixed with soil
would result in dioxin levels in soil
levels at or below 8 ppt TEQ. For this
analysis, the distribution of congeners
in CKD was assumed to be the same as
the congener composition or congener
profile of background soil. This is
essentially a default assumption
because, based on available data on
levels and distributions of dioxin
congeners in CKD, there is no "typical"
distribution of dioxin and furan
congeners in CKD. Additionally
consistent with the methodology used to
develop limiting concentrations for
metals, EPA fixed all application
parameters at high-end values in setting
limiting concentrations for dioxins. In
this manner, a limiting TEQ
concentration for dioxins in CKD was
established so that when CKD is applied
at high application rates and frequency,
soil concentrations do not exceed 8 ppt'
TEQ. Assuming high-end application
parameters, the maximum TEQ
concentration of dioxins in CKD that
will result in soil concentrations at or
below 8 ppt TEQ was determined to be
0.04 parts per billion (ppb). Based on
this analysis, EPA is proposing to set
protective limiting concentrations for
dioxins in CKD that is used as a liming
agent at 0.04 ppb TEQ. Under today's
proposal, CKD that exceeds the
proposed concentration limit for dioxins
cannot be used as a liming agent on
agricultural soils. Based on available
data on dioxins in CKD, the Agency
does not believe that the proposed
limiting concentrations will
significantly restrict use of CKD as a
liming agent. EPA requests comment on
the methodology and assumptions used
to develop the risk-based limiting
concentration for dioxins in CKD that is
used as a substitute for agricultural
lime.
3. Comparison to Agricultural Lime-
Proposed Limiting Concentration for
Arsenic
th ~ i" '-l°j"V ",',""• t" "Fusing to use
the limit derived for arsenic using the
risk-based methodology outlined above
Instead. EPA is proposing an alternative
limit for arsenic based on arsenic
concentrations found in commercially
available agricultural liming materials
i otal arsenic concentrations in
agricultural lime range from < 1 to 13
mg/kg.3s Based on this information EPA
is proposing a limiting concentration of
13 mg/kg for arsenic in CKD that is
applied agriculturally to adjust soil pH
- ?f «! risk-based approach results
in a cut-off level for arsenic that is
below concentrations typically found in
agricultural lime and is in fact at or
below background concentrations for
arsenic in soils in many parts of the
country. EPA believes that it is
impractical and illogical to prohibit the
use of a CKD as a liming agent if it
contains levels of arsenic at lower
concentrations than agricultural lime
because such use would not increase
any risks faced by anyone who uses
CIA^r3-S a,!,ubs]ti;tute for agricultural lime.
Agricultural limestone (aglime) is
finely pulverized, naturally occurring
relatively pure limestone or dolomitic
limestone. Aglime is added to
agricultural soils to maintain optimum
pH for crop production and is needed to
offset the effects of fertilizers that lower
sou PH. Aglimes are produced and sold
throughout the United States. States
typically regulate aglime by setting
standards for minimum calcium
carbonate equivalent and particle size
but not for other properties such as
metal concentrations. Since CKD is used
as a substitute for aglime (i.e., it is used
to control pH for production of crops)
UFA is proposing to use arsenic levels
typically found in agricultural lime as a
basis for setting a regulatory limit for
arsenic in CKD that is used in lieu of
agricultural lime. The Agency believes
that this approach provides a practical
common sense means of minimizing the
risk from arsenic used as an agricultural
liming agent. The alternative would be
3SKanare. H.M. 1997 Comparison of Trace Metal
Concentrations in Cement Kiln Dust. Agricultural
Limestone, Sewage Sludge, and Soil. Report tofte
American Portland Cement Alliance by
^n Technology Laboratories; Inc.. Skokie.
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Federal Register/Vol. 64, No. 161/Friday, August 20, 1999/Proposed Rules
to effectively preclude the use of CKD
as a liming agent without any reduction
in environmental risk. The Agency
requests comment on its proposed
approach for setting regulatory limits for
arsenic in CKD that is, used as a
substitute for agricultural lime. EPA also
requests comment on whether it should
consider setting limits for arsenic that
are based on existing background
concentrations of arsenic in areas where
the CKD is applied.
4. Peer Review of the Risk Assessment
An external peer review of the
agricultural use risk analysis and the
methodology used to establish
protective constituent concentration
was conducted prior to publication of
today's rule. The peer review was
conducted by the United States
Department of Agriculture's W-170
Committee, which is comprised of
nationally known experts on
agricultural use of soil amendments.
Unfortunately, the Agency did not have
time to revise the assessment based on
peer review comments prior to
publication of the CKD proposal. The
committee's review is available in the
docket for this rule for public review
and comment. The Agency also requests
public comments on all aspects of the
risk assessment including the, pathways-
evaluated, exposure assumptions,
assumptions used regarding agricultural
practices, etc.; and on all aspects of the
methodology used to establish
protective levels for hazardous
constituents in CKD used agriculturally.
EPA anticipates undertaking revisions
to the risk assessment based on
recommendations received through the
peer review process as well as
comments received from the public. The
Agency also requests information on
other existing and/or potential
agricultural uses of CKD that may need
to be evaluated. EPA requests comment
on whether CKD used for other
agricultural purposes should be subject
to the same standards as those proposed
for CKD used as an agricultural liming
agent.
D. Implementation of Controls for the
Agricultural Use of CKD
In today's proposed rule, §259.17
defines agricultural use of cement kiln
dust as use of CKD as an agricultural
lime substitute for the purpose of
amending the soil to optimize pH or to
promote the growth of crops or other
foodstuffs. The Agency restricts this
definition of use to CKD produced for
use by the general public and not for the
exclusive use of the owner or operator
of the facility which generates the CKD
waste. EPA believes that when an owner
or operator applies CKD solely to his
own land, the practice is actually
disposal.
The Agency intends to ensure there is
a high degree of confidence that^iny
CKD sold for purposes as an agricultural
lime substitute complies with today's
proposed standards. Therefore, today's
rule also proposes that for CKD sold for
agricultural use, the persons managing
CKD waste (e.g., the owner or operator
of the facility which generated the
waste) shall place in the operating
record a notation listing the amount of
CKD shipped as an agricultural lime
substitute and a letter of certification
signed by a company representative
verifying compliance with the limiting
concentrations specified under
§§259.17(a) and (b). In today's rule,
EPA is not proposing to impose
regulatory limits or recordkeeping
requirements on the rate and frequency
of application of CKD used as an
agricultural lime substitute because the
Agency believes that today's proposed
standards are protective across the range
of anticipated, agronomically viable
application parameters.
Today's rule also proposes that CKD
destined for agricultural use be sampled
and analyzed by the person managing
the CKD waste whenever such CKD
waste is destined for shipment. Such
CKD waste must be tested prior to
shipment to determine whether it has
concentrations of toxic constituents in
excess of the limiting concentrations
proposed in §259.17(a). EPA believes
that CKD waste destined for agricultural
use must be analyzed prior to shipment
for the person managing the CKD waste
to determine whether or not such waste
can be used for pH adjustment. The
Agency is not specifying a sampling
frequency in today's proposed rule. If
the sampling frequency is less often
than on a daily basis, however, and
subsequent analysis determines that the
CKD fails the test, then the Agency
considers that all CKD transported for
agricultural use since the previous
successful analysis to have been
mismanaged, and, therefore, would be
hazardous waste absent documentation
otherwise.
E. Alternative Standard to Limit
Chlorinated Dioxins and Furans in CKD
As part of EPA's development of air
emission standards for the Portland
cement industry, the Agency has
proposed operational and monitoring
methods for cement kilns that burn
hazardous waste (see 61 FR 17358,
Hazardous Waste Combustors; Revised
Standards; Proposed Rule, April 19, "
1996 and 62 FR 24226, Revised
Technical Standards for Hazardous
Waste Combustion Facilities; Proposed
Rule, May 2, 1997) and standards for
hazardous air pollutants for cement
kilns that do not burn hazardous waste
(see 63 FR 14182, March 24, 1998,
National Emission Standards for
Hazardous Air Pollutants; Proposed
Standards for Hazardous Air Pollutants
Emissions for the Portland Cement
Manufacturing Industry). These
standards for air emissions include
uniform technology-based standards for
chlorinated dioxins and furans, and
reflect the performance of Maximum
Achievable Control Technologies
(MACT) as specified under the Clean
Air Act.
To limirthe emission of these
compounds, EPA has proposed in both
rules a baseline air emission level for all
cement kilns of 0.20 ng TEQ/dscm of
chlorinated dioxins and furans, or 0.4
ng TEQ/dscm, and temperature at the
inlet to the air pollution control device
of less than or equal to 400°F. The
Agency believes temperature control to
400°F or lower is an appropriate
baseline control at the air pollution
control device because: (1) The
optimum temperature window for
surface-catalyzed formation of
chlorinated dioxins and furans is 450-
750°F; and (2) Below 350°F, kiln gas can
fall below the dew point which can
increase corrosion in ESPs and fabric
filters and reduce performance of the air
pollution control devices. Available air
emissions data from cement kilns show
all but one data point of dioxins and
furans at or below 0.2 ng TEQ/dscm at
the air pollution control device when
operating the device at temperatures
less than or equal to 400°F. Thus, EPA
believes a standard of 0.20 ng TEQ/
dscm, or 0.4 ng TEQ/dscm and
temperature at the inlet to the air
pollution control device of less than or
equal to 400°F is' both reasonable and
readily achievable.
The Agency solicits comment
regarding whether the emission
standards for dioxins and furans
proposed for the cement industry are
adequate to control the formation of
dioxins and furans on CKD destined for
agricultural use, and consequently
whether dioxin and furan standards for
CKD used for agricultural purposes are
necessary.
VII. Relationships Between This Action
and Other Regulatory Programs
A. Stormwater Regulations
As stated in its Regulatory
Determination, the Clean Water Act,
through existing effluent limitations
guidelines, NPDES permits, water
quality standards, and existing storm
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water permits, provides considerable
authority to control risks associated
with the contamination of surface
waters by the management of CKD.
EPA's multisector stormwater general
permit under the National Pollutant
Discharge Elimination System (NPDES)
program (see 60 FR 50804, September
29, 1995) 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
management practices (BMPs) to
minimize the contact between storm
water runoff and CKD or other pollutant
sources, or else remove CKD (or other
constituents) before the stormwater is
discharged. These permits 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 Agency believes that
once the storm water permits are fully
implemented, no further water permits
or regulations will be needed to address
CKD releases to surface water.
B. Clean Air Act
On the Federal level, air quality has
been improved through implementation
of controls on releases of CKD through
kiln stacks and via fugitive dust
emissions. Under the New Source
Performance Standards (NSPS) for
cement plants, a facility must comply
with specific emission limitations for
particulate matter. Prevention of
Significant Deterioration (PSD) review
also is required before a cement plant
can be built in a geographic area that is
classified as an attainment area. In
addition, cement plants are subject to
Nonattainment Review if they are
located in an air quality control area
that is not in compliance with the
National Ambient Air Quality Standards
(NAAQS) for a given pollutant (e.g.,
particulate matter or sulfur dioxide).
Today's proposed rule augments
regulations applicable to cement
manufacturing facilities that have been
issued under Clean Air Act mandates by
addressing fugitive emissions from CKD
storage areas, transportation, and
disposal sites.
The NSPS for Portland cement plants
in 40 CFR part 60, subpart F apply to
plants that were constructed or
modified after August 17, 1971.39
Components of cement plants (referred
39 A "modification" is any physical or operational
change to an existing facility that results in an
increase in the emission rate of any air pollutant to
which the standard applies.
1 to as "facilities") specifically affected
are kilns, clinker coolers, raw mill
systems, finish mill systems, raw rjjill
dryers, raw'material storage facilities,
clinker storage facilities, finished
product storage facilities, conveyor
transfer points, and bagging and bulk-
loading and unloading systems. For
these plants, EPA nas established
performance standards that reflect the
degree of emission limitation achievable
through application of the best available
control technology.40
In accordance with the NSPS, no
Portland cement plant owner or
operator may cause an affected facility
to exceed the particulate matter
emission limits. Owners or operators
must monitor each kiln and clinker
cooler stack using a continuous opacity
monitoring (COM) system (or a certified
visible emissions observer when a COM
is not technically feasible). In all cases,
each owner or operator must submit
semi-annual reports of excess emissions,
defined as all 6-minute periods during
which the average opacity exceeds the
standard, and of equipment
malfunctions. The emission standards
for these facilities are listed in of 40 CFR
part 60, subpart F (Standards of
Performance for Portland Cement
Plants). In addition, owners or operators
must record daily production rates and
kiln feed rates and monitor the opacity
of emissions.
The 1990 Clean Air Act Amendments
established a program to regulate
emissions of 189 toxic air pollutants
through technology-based standards (the
National Emission Standards for
Hazardous Air Pollutants (NESHAPs)) .4i
EPA is currently developing NESHAPs
for Portland cement plants that will
address stack emissions and fugitive
emissions for the same facilities as
listed under the NSPS. The NESHAPs,
however, will not apply to
transportation; storage, or disposal of
CKD. Fugitive emissions from CKD
landfills, trucks and storage piles are
subject to today's proposed rule.
In its 1995 Regulatory Determination,
EPA stated that it would use as
appropriate the various authorities
under the Clean Air Act to improve
regulations for CKD to limit releases to
the air (61 FR 7375, February 7, 1995).
EPA did consider the use of its
authorities under the Clean Air Act in
its rulemaking approach to address the
air pathway of potential contaminant
release. However, existing Clean Air Act
40 "Best Available Control Technology" (BACT) is
defined as the best system of emission reduction
determined by EPA to have been adequately
demonstrated.
•" 42 U.S.C. 7412(b)i (1); The Act lists 189
pollutants, but the Agency has since delisted one.'
regulations do not fully address
emissions from CKD piles. Accordingly
EPA is proposing to establish RCRA
requirements to address emissions from
transportation, storage, and disposal of
CKD. To this extent, EPA is proposing
to modify the conclusions of the 1995
Regulatory Determination, and solicits
comment on that change. However the
Agency is not reversing the 1995 CKD
Regulatory Determination entirely. EPA
will continue to rely on its authorities
under the Clean Air Act to control CKD
emissions from stacks and pollution
control devices (e.g., electrostatic
precipitators and baghouses).
Subsequent examination, however
revealed that current implementation of
these authorities, do not specifically
address CKD waste management.
Particulate emissions from cement
manufacturing facilities are potentially
subject to requirements adopted as part
of a State Implementation Plan (SIP),
adopted by States in order to achieve or
maintain attainment of the NAAQS for
PM, which are national standards
applicable on a regional area basis.42
However, SIPs do not routinely address
emissions from landfills and storage
piles and, thus, would likely not
prevent local PM]0 exceedances such as
could result from fugitive CKD
emissions. EPA believes that the risks
from fugitive CKD from landfills, piles,
and transportation, warrants control
Accordingly, EPA is today proposing to
establish air emission requirements for
CKD under its RCRA authorities.
As mentioned earlier, cement kilns
that burn hazardous waste currently are
regulated under RCRA, and
implementing regulations found at 40
CFR Part 266, Subpart H. The Clean Air
Act Amendments of 1990 require EPA "
to develop technology-based emission
standards for sources listed by the
Agency, including cement
manufacturing plants. In April 1996, the
Agency proposed revised stack emission
standards and controls for cement kilns
that burn hazardous waste. This
proposal, which the Agency anticipates
finalizing in late 1998, will require
cement kilns to control stack emissions
of mercury and dioxins and furans, as
well as other hazardous air pollutants.
The new emission standards, however,
will not apply to transportation, storage
or disposal of CKD.
EPA believes that today's proposed
rule will improve air quality and reduce
health risks at and near CKD
42 Under the revised NAAQS for particulate
matter. States which currently are in attainment
regarding existing PM standards must submit to
EPA for approval a new SIP which meets newly
adopted standards for PM (See 62 FR 38651. July
18, 1997).
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management units by reducing fugitive
emissions of CKD from these facilities.
VIII. State Authority
A. Statutory Authority
Under section 3006 of RCRA, EPA
may authorize qualified States to
administer and enforce the RCRA
program within the State. (See 40 CFR
Part 271 for the standards and
requirements for authorization.) After
receiving authorization, the State has
primary enforcement responsibility,
although EPA retains enforcement
authority under RCRA sections 3007,
3008(a)(2), 3013, and 7003.
As mentioned above, although the
Part 259 standards proposed today
would likely be adopted as a matter of
State law. Federal inspection authority
would still be available for facilities
regulated under those standards.
Because significant violations of the
standards would result in CKD being
considered mismanaged and, therefore,
hazardous waste, EPA, (as well as State
RCRA Subtitle C programs) would have
authority to inspect such facilities to
determine whether they were handling
hazardous waste (i.e., mismanaged CKD
waste). If the person managing CKD
waste is managing CKD inconsistently
or in a manner that does not comply
with the Part 259 standards, it would be
subject to Federal enforcement under
regulations proposed today in
§26l.4(8)(ii), to compel compliance
with RCRA Subtitle C requirements
proposed today in Part 266.
Prior to the Hazardous and Solid
Waste Amendments of 1984 (HSWA), a
State with final authorization
administered its hazardous waste
program entirely in lieu of the Federal
program in that State. The Federal
requirements no longer applied in the
authorized State, and EPA could not
issue permits for any facilities located in
a State with permitting authorization.
When new, more stringent Federal
requirements were promulgated or
enacted, the State was obligated to enact
equivalent and no less stringent
authority within specified time frames.
These new Federal requirements did not
take effect in an authorized State until
the State adopted the requirements as
State law and received authorization to
implement the new requirements.
In contrast, under section 3006 (g) of
RCRA, 42 U.S.C. 6926(g), new
requirements and prohibitions imposed
by HSWA take effect in authorized
States at the same time as they do in
unauthorized States, if the new
requirements are more stringent than
the previous requirements. EPA
implements these new requirements
until the State is authorized for them.
Authorized States are required to
modify their programs only when EPA
promulgates Federal standards that are
more stringent than existing Federal
standards. Section 3009 of RCRA allows
States to impose standards more
stringent than those in the Federal
program (see 40 CFR 271.1(1)). Federal
(both HSWA and pre-HSWA)
regulations that are considered less
stringent are optional for the authorized
States to adopt, and do not go into effect
in authorized States until those States
adopt them and are authorized to
implement them.
B. Effect of Today's Proposed Rule
The RCRA sections of today's
proposal are promulgated in part
pursuant to pre-HSWA, and in part
pursuant to HSWA. Pursuant to pre-
HSWA authority, the proposal modifies
the rule exempting CKD from hazardous
waste-regulation under § 261.4 (b) (8),
exempts from Subtitle C CKD that is
either (a) managed in accordance with
certain standards, or recycled or used
for certain other beneficial purposes
(§261.4(b)(8)), and lists as hazardous
waste CKD that is not managed in
compliance with the proposed
standards. The proposal also includes
tailored Subtitle C regulations for
nonexempt CKD (noncharacteristic CKD
and characteristic CKD from kilns
burning non-hazardous waste which do
not meet the proposed management
standards) under Subpart I of 40 CFR
Part 266. Characteristic CKD from kilns
burning hazardous waste is not affected
by this proposed rule and still is subject
to full RCRA Subtitle C requirements as
set forth in 40 CFR 266.112. The tailored
Subtitle C standards are promulgated in
part based on EPA's general pre-HSWA
authority to set-management standards
for facilities that manage hazardous
waste, and in part on the authority in
section 3004 (x), a HSWA provision, to
modify certain requirements that would
otherwise apply to any hazardous waste.
The portion of this proposal that lists
nonexempt CKD as hazardous waste is
more stringent than the current Federal
requirements. Section 271.21(e)(2) of
EPA's State authorization regulations
(40 CFR Part 271) requires that States
with final authorization modify their
programs to reflect Federal program
changes and submit the modifications to
EPA for approval. The States must
modify their programs and obtain
authorization to include CKD
requirements that are equivalent and not
less stringent than the EPA's
requirements for CKD. The procedures
and time frames for State program -
modifications are described in 40 CFR
271.21. The deadline by which the
States must modify their programs to
adopt this proposed regulation, if it is
adopted as a final rule, will be
determined by the date of promulgation
of the final rule in accordance with
§ 271.21 (e) (2). Once EPA approves the
modification, the State requirements
become RCRA Subtitle C requirements.
Because the tailored regulations
promulgated under both pre:HSWA and
HSWA authorities are less stringent
than full RCRA Subtitle C, States are not
required to adopt the tailored
regulations. While HSWA aspects of a
rule usually become effective
immediately, the only effect of the
tailored regulations here is to relax full
RCRA Subtitle C requirements for CKD
failing to meet management standards in
States authorized to regulate CKD. The
flexibility provided by these tailored
regulations is irrelevant until the States
revise their programs and become
authorized to regulate CKD.
Although the States do not have to
adopt the tailored regulations proposed
today under Part 259, EPA strongly
encourages States to do so. The tailored
regulations would contribute to more
efficient State programs because they
minimize the cost of compliance while
providing sufficient protection of
human health and the environment.
States seeking authorization under
Subtitle C do not have to adopt new
laws and regulations before submitting
their authorization package to EPA for
approval. States may use their existing
laws and regulations, such as their solid
waste laws,43 as long as those laws and
regulations cover all of the required
elements for regulating CKD as part of
the RCRA Subtitle C program.
IX. Regulatory Requirements
A. Regulatory Impact Analysis Pursuant
to Executive Order 12866
Under Executive Order No. 12866 (58
FR 51735, October 4, 1993), EPA must
determine whether a regulatory action is
"significant." The Order defines a
"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
43 Because the listing of mismanaged CKD is more
stringent than the current Federal hazardous waste
regulations. States with base authorization must
revise their Subtitle C program and seek
authorization for the CKD listing. However,
although the States can use their existing solid
waste laws to comply with the requirements for the
regulation of CKD. States are not required to seek
plan approval for a CKD program under Subtitle D.
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federal Register/Vol. 64, No. 161/Friday, August'20, 1999 /Proposed Rules ,
environment, public health or safety, or
State, local, or tribal governments or
communities; (2) create 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; 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, the Agency has
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. Changes made in response to
OMB suggestions or recommendations
are documented in the public record
and are available in the docket for this
rule. Although today's rule is expected
to affect the economy by substantially
less than $100 million per year, the
Agency conducted a relatively detailed
cost and impact study to evaluate the
effects of the rule on the U.S. Portland
cement industry and the economy.
45669
1. Scope and Approach for Estimating
Economic Costs and Impacts
As described in Section III.G. (Today's
Approach—Exclude Properly Managed
CKD From Hazardous Waste Listing) of
this preamble, today's proposed rule
calls for a flexible approach to managing
land-disposed CKD, a policy tailored to
site-specific cement plant, climate, and
geophysical conditions. In this context,
the Agency has attempted to estimate,
individually for each plant, the changes
in management practices that might be
required to meet the performance-based
objectives of the proposed policy, and
then to estimate the costs for carrying
out these changes. This requires: first, a
reasonably detailed understanding of
current "baseline" CKD waste
generation and management practices;
second, a means of simulating likely
plant-specific practice changes; and
third, an approach to estimate the costs
of the projected changes.
a. The Regulatory Baseline
There are currently 110 Portland
cement plants in the United States and
Puerto Rico. Based on previous work for
the Report to Congress and Regulatory
Determination, the Agency had acquired
an extensive data base on general
cement plant characteristics, CKD
generation and management practices,
and locational circumstances. General
plant-specific data on the types,
location, and capacity of cement plants
is cataloged and updated annually by
the American Portland Cement
Association (APCA). In addition, |Jie
APCA conducted a detailed industry
survey of plant CKD generation and
management practices for the year 1995,
and information from this survey,
together with follow-up information
from member companies of the Non-
Hazardous Burner CKD Coalition, was
used to update and expand the Agency's
facility-specific data base on waste
generation. Thus, the combined 1990
and 1995 survey data on CKD
generation and disposition was
available for 108 of the 110 cement
plants in the cost study.
The 1995 baseline survey results
indicated that 24 of the 110 plants
(22%) recycle all collected dust back to
the kiln, and an additional 12 plants
(11%) reported shipping all generated
dust off-site for beneficial use. For the
present impact analysis, the Agency
thus defined the potentially affected
cement plant universe to include the
remaining two-thirds of the plants, i.e.,
the 74 facilities currently disposing of
CKD on-site, with a combined annual
CKD land-disposal requirement of 3.3
million metric tons in 1995.44 These
facilities employ on-site disposal for
CKD quantities ranging from less than
1,000 metric tons per year up to more
than 200,000 tons per year. It is also
possible that some off-site CKD market
changes could result from the proposed
policy, thus altering CKD disposal
requirements for individual plants. This
possibility is discussed further below.
With respect to baseline management
practices at individual plants, the
Agency had to rely primarily on the
earlier 1990 survey information where
available, or to assume typical baseline
practices for many plants based on
APCA-provided summaries of industry-
wide 1995 survey information which
characterized the general distribution of
typical current practices but not plant-
specific information. Based on available
information, EPA then categorized each
of the 74 potentially affected plants into
one of nine prototype baseline groups
for purposes of estimating baseline CKD
management costs. The nine baseline
groups differed according to three
generic types of disposal configuration
(placement in a quarry, land pile, or
combination in-ground and land pile)
and three degrees of engineering and
operational complexity ("low,"
"medium," or "high"), depending on
""A small number of additional facilities could be
affected if they were to loose off-site markets for
CKD due to the Agency's proposed standards for
use as an agricultural lime substitute.
the types and degrees of release-
prevention practices employed^
b. Projecting Plant-Level Compliance
Responses
Under a tailored management policy,
the new compliance requirements for
individual cement plants could vary
substantially from State to State,
depending on current baseline
regulations, or from plant to plant even
within a given State, depending on
plant-specific waste quantities and
management practices and local
geological conditions. Thus, some
plants will require little or no change in
present practices while others may
require an extreme change from
essentially simple open dumping of
their CKD up to and including an
engineered land disposal design
equivalent to the Federal municipal
solid waste landfill technical standards.
In rare situations, plants with no
available on-site landfill space or plants
located in areas of highly adverse
geological conditions may be required to
dispose of CKD in off-site municipal or
approved industrial landfills.
For purposes of simulating plant-
specific compliance responses under
these highly variable and in many cases
uncertain conditions, the Agency made
the simplifying assumption that the
final compliance outcome for each plant
would fall into one of four compliance
groups or scenarios. Three compliance
designs varied primarily by degree of
control measure required to meet the
regulatory performance criteria. A "CKD
Low" design requiring relatively simple
but comprehensive measures for
controlling releases to the air, ground
water and surface water, could be
satisfactory, for example, under local
conditions with high depth to ground
water and low rainfall. A "CKD High"
design, employing a more extensive
liner and closure-cover configuration,
was assumed as an intermediate design
to limit or prevent infiltration of
leachate. The most extensive design is
the "Subtitle D Default," equivalent to
the municipal landfill default
requirement defined by today's rule. All
three of these designs were costed in a
mono-pile configuration as the least-
costly available option. As a fourth
generic option for cost-estimating
purposes, the Agency estimated off-site
disposal in a commercial landfill
certified for contaminated media to
accommodate facilities with inadequate
landfill space or extremely adverse
environmental locations that might
preclude continued on-site disposal.
In assigning each of the 74 plants to
one of these four compliance options,
the Agency applied judgements based
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Federal Register/Vol. 64, No. 161/Friday, August 20, 1999/Proposed Rules
on general knowledge and primarily
public information regarding local
geological conditions that would affect
the need for groundwater protection. In
addition, two specifically conservative
assumptions affecting compliance costs
were employed. The first assumed that
disposal in quarries would not be
allowed; the second assumed that in
situations where karst terrain underlies
a potential on-site land disposal
location, the most extensive Subtitle D
default design would be required for
compliance. Since most baseline
disposal is in quarries and a majority of
cement plants are located over karst
conditions, these assumptions will tend
to overstate the degree of change
required and the Agency's estimated
cost of compliance for some fraction of
the plants.
c. The Cost and Impacts Models
To estimate individual plant CKD
disposal costs for both baseline and
compliance scenarios, EPA adapted and
updated the engineering costing model
originally developed for the municipal
landfill regulatory impact assessment.
Essentially, the revised model sizes,
designs, and calculates the capital and
operating costs for specified land
disposal options, including quarries,
monopiles, and combination landfill/ '
pile alternatives, and a wide variety of
possible leachate and air emission
release/control technologies, during the
active-life, closure, and post-closure
project phases. To estimate the costs of
complying with today's rule, CKD
management costs were estimated twice
for each plant, first for the chosen
baseline practice and then for the
projected compliance design. The
difference in cost between the two
estimates is the Agency's incremental
compliance cost estimate for each plant,
the results of which are summarized
below.
Additional details regarding the study
design, baseline data, and engineering
and costing assumptions for the study,
as well as the estimated baseline costs
and compliance costs for each of the 110
Portland cement plants, are presented in
the technical background document
titled Compliance Cost Estimates for the
Proposed Land Management Regulation
of Cement Kiln Dust (April 10, 1998)
located in the RIC docket for today's
rule.
In a second phase of the economic
impact assessment, the Agency
employed a Portland cement industry
market impacts model designed to
project regional cement price changes,
plant capacity use changes, kiln
closures, and shifts in international
shipments. This industry or market-
level impacts model was originally
developed by the Agency's Office of Air
Quality Planning and Standards for use
in assessing cement industry impacts of
proposed national emission standards
for hazardous air pollutants. The
methodology for estimating cement
industry impacts, together with the
results for 20 cement marketing regions
and the United States as a whole, is
contained in the document titled
Regulatory Impact Analysis of the
Cement Kiln Dust Rulemaking Qune
1998) located in the RIC docket for this
rule.
2. Summary of Cost and Impact Results
a. Nationwide Compliance Costs
Using the methods and data described
above, the Agency estimates that today's
rule would require incremental
compliance costs for the Portland
cement industry of about $44 million
per year. These cost increases would
initially fall on 68 of the 110 U.S. and
Puerto Rican plants that currently
manage CKD on site. Thirty-six of the
remaining 42 plants would not have to
undergo changes in management
practices, either because they can
recycle all collected dust back to the
kiln or because they have off-site
markets for all generated dust. In the
case of the six remaining plants—all
with small CKD quantities—the Agency
estimates that off-site Subtitle D landfill
disposal could be obtained at costs-
approximately at or below their current
baseline costs. For the 68 negatively-
affected plants, the average added cost
per plant would be approximately
$646,000 per year, or just over $13 per
metric ton of CKD. For these 68 plants,
estimated annual compliance costs
ranged from under $100 thousand to
over $3.5 million per year. Relative to
its annual value of cement sales, the
average affected plant would face
additional costs of just under two
percent of sales revenues.
Due to the wide variability in plant
capacities, net CKD-to-clinker ratios,
and required management practice
changes, these costs would fall very
unevenly among plants in the industry.
The following table summarizes the
distribution of costs across all plants in
the industry, expressed as the
percentage ratio of incremental
compliance cost to annual Portland
cement sales revenues at 1995 prices
and capacity utilization levels.
TABLE 3.—INDUSTRY DISTRIBUTION OF COST AS A PERCENT OF SALES
$Cost/$sales
Zero Cost or Cost reduction
>0 to 1%
>1 to 2%
>2 to 3%
>3 to 4%
>4 to 7%
Total
Number of
plants
&!>
29
1Q
110
Percent of
plants
op
oe
a
100%
Cumulative
percent
Although costs for individual plants
may be either over-or understated, for
various reasons the Agency believes that
the pattern of compliance costs
estimated here represents a "high end"
projection for the industry as a whole.
First, due to a lack of detailed site-
specific geophysical data, the default
assumption was made that any plant
currently disposing of dust in a quarry
would no longer be able to continue
managing in the quarry. In reality, the
proposed rule would only apply, on a
site-specific basis, to management in a
quarry where the natural (unpumped)
ground-water level would lie above the
base of the disposal area. Similarly, for
plants located in areas of karst terrain
(based on generally available regional
geological mapping), the default
assumption was made that all such
plants would need to utilize a full
municipal solid waste landfill default
design, the most costly compliance
option. In practice, many such plants
may face less expensive compliance
designs based on more detailed local
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Federal Register/Vol. 64, No.
knowledge of the existence and
hydrology of the underlying karst
topography. Since a substantial majority
of potentially affected cement plants fall
into one or both of these categories the
assumed compliance option for
purposes of the costing study was
biased towards the high-end engineering
design. In a few instances, it appeared
from available information that no on-
site option might be viable. In another
respect, the Agency's costs are also
biased upwards due the fact that plant-
specific data on current management
practices was lacking for most plants
and, as noted above, reliance was placed
primarily on information from a 1990
survey. Some States have been actively
regulating CKD placement in the
interim, or are in the process of actively
upgrading disposal regulations. Thus
UFA s outdated information on baseline
practices for those plants means that for
an unknown but not insignificant
number of plants, the incremental
compliance costs will have been
overstated in this analysis because
several of these plants would already
have become partially or substantially
in compliance with the performance
standards being proposed today.
b. Economic Impacts
The second phase of industry cost and
impact assessment employed a Portland
cement industry impacts model to
project regional cement market shifts
and impacts that could be expected to
result from the estimated pattern of
individual plant-level compliance cost
increases. In general, a major part of the
compliance cost burden will be shifted
to cement consumers (in both the
private and public sectors) in the form
of higher prices for construction goods
and to government in the form of
somewhat reduced corporate taxes The
remaining burden will be born by that
Stgmejit10f the industfy most directly
affected by the highest compliance
costs. On average, cement industry
profits will be reduced, at least for some
period of time, but several plants and
firms—those with little or no
compliance cost burden—will see
higher capacity utilization and profits
due to the upward shift in regional
prices brought about by the shifting of
costs by affected plants. S
Based on this model, which projects
intermediate term effects but does not
account for longer term technology
innovation or new capacity expansions
at lower cost units, the Agency
estimated the following cement market
ettects from the proposed rule
Cement Prices. Nationally, cement
prices are projected to increase over
their 1995 baseline by less than one
August ^ 1999/Proposed
dollar per metric ton, or about 1 3
percent. Regionally, price increases
would range from about 1.1 to 3 8 i
percent across the twenty cement "
market regions of the country
Cement Capacity and Production
Changes. Five to seven kiln closures
including one possible plant closure'
could result from today's rule. All told
these capacity reductions together with
net capacity utilization changes in each
regton, associated with or in response to
the market price increases noted above
could result in domestic output
loof ui0ns °f about 2'6 Percent °f the
1995 baseline production on a national
basis.
Cement Imports. Price increases by
affected domestic cement producers will
be tempered by increased foreign
imports, which are projected to increase
by over 800 thousand metric tons (6 2
percent). v
Employment Effects. Nationally
employment reductions in the primary
cement industry equivalent to about 500
full-time jobs would be associated with
the production changes noted above
Again; it bears emphasis that the
Agency believes these impact estimates
to be high end estimates, both because
of the default assumptions employed in
the plant-level engineering cost
estimates themselves and because the
market impacts model does not account
for longer-term industry responses to
the initial compliance cost effects.
3. Benefits of the Rulemaking
The Agency has undertaken several
efforts to estimate the impacts from the
baseline management of CKD and thus
identify the benefits from today's rule
In support of the Report to Congress on
Cement Kiln Dust and the Regulatory
Determination, the Agency performed
an individual risk analysis to determine
whether current CKD management
practices may impact nearby
individuals, including highly exposed
individuals (e.g., subsistence farming)
For todays proposed rulemaking, the '
Agency built upon the previous
individual risk analysis to estimate
population-level impacts associated
with current management practices (see
Section n.C.4.a._Population Risks) The
Agency also conducted a screening level
analysis to determine whether current
management practices may result in
effects to ecological receptors. The
Agency, however, has not quantitatively
assessed how the proposed standards
will reduce the human health
ecological, and other damages
associated with current CKD
management. For the purposes of this
analysis, an upperrbound estimate of the
benefits provided by this rule is to
45671
=. =
assume that all of the impacts described
below are avoided. wuioea
Regulatory Determination the
™ -odeled individual risks from
indirect pathways for 83
ri.** fr The,^ncy concluded that the
risks from direct pathways (i e
drinking water ingestion, incidental
mgestion, and chemical inhalation)
were low or negligible. The Agency
caveated these conclusions by-noting
that (1) about half of the plants are
underlain by limestone formations in
areas of karst landscape and may be
susceptible to fissures and hydraulic
characteristics that allow leachate to
directly enter groundwater without
dilution orattenuation and cannot be
modeled with current techniques- (2)
empirical evidence indicated '
groundwater contamination in areas of
both karst and non-karst terrain; and (3)
modeling results for fine paniculate
™HH T f°r I8 Cement plants out of 52
modeled may have exceedances of
NAAQS at plant boundaries and may
result in risks from fine paniculate
inhalation at nearby residences. Today's
proposed rule addresses each of these
areas and should result in the avoidance
of these individual-level impacts For
the indirect pathways, the Agency
concluded that releases from about 12
percent of the 83 plants studied may
result in cancer risks greater than
IxlO-s for highly exposed individuals
(i.e., subsistence fishers and subsistence
farmers). Similarly, the Agency
concluded that releases from about 12
noScerhTz83 ^^ may r6SUlt in
for highly exposed individual^ Today's
proposed action should help prevent
these risks to highly exposed
individuals.
As described in Section II C 4 a —
K^s^h^s^randed
conducted for the 1993 Report to
Congress and 1995 Regulatory
Determination to evaluate population-
level risks. Based on this expanded
analysis, the proposed rule may result
m a reduced risk of 0.0004 to 0.003
cancer cases per year (best estimate—
0.000$ and 29 to 315 fewer persons
(best estimate—43) exposed to potential
non-cancer health effects due to food
chain exposures (i.e., vegetables, beef,
and/or milk) to "backyard" gardeners
and subsistence farmers. In addition the
population analysis indicated that '
between 669 and 5,895 recreational
fishers (best estimate-999) would avoid
exposure to contaminant levels that may
result in noncancer health effects The
population analysis indicated that 18 to
4,118 individuals (best estimate—2 378)
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Federal Register/Vol. 64. No. 161 /Friday, August 20, 1999/Proposed Rules
would avoid exposure to particulate
matter in excess of the NAAQS.
As described in Section II.C.4.b.—
Additional Ground-water Modeling, the
Agency conducted additional
groundwater analyses to determine
whether the high alkalinity leachate
associated with CKD may result in
elevated groundwater concentrations of
constituents of concern. The analysis
indicated that the highly alkaline nature
of CKD leachate resulted in elevated
levels of lead, chromium, and cadmium
in the groundwater and suggested that
beryllium and barium also may be more
mobile in CKD leachate. The analysis
also indicated that all of these metals
were more likely to be transported to the
groundwater. Thus, today's action
should help prevent contaminated CKD
leachate from impacting groundwater
resources.
The proposed rule will provide other
benefits that have not been estimated
quantitatively, but can be qualitatively
described. These include protecting
groundwater resources near cement
plants, including resources located in
areas of karst terrain; preventing the
corrosion of water distribution pipes by
source waters with pHs elevated by CKD
leachate; and protecting ecological
receptors from adverse effects resulting
from the atmospheric deposition and
groundwater discharge of CKD.
B. Regulatory Flexibility Analysis
Pursuant to the Regulatory Flexibility
Act (5 U.S.C. 601 etseq) as amended by
the Small Business Regulatory
Enforcement Fairness Act of 1996
(SBREFA), whenever an agency is
required to publish a notice of
rulemaking for any proposed or final
rule, it must prepare and make available
for public comment a regulatory
flexibility analysis that describes the
effect of the rule on small entities (i.e.,
small businesses, small organizations,
and small governmental jurisdictions).
However, no regulatory flexibility
analysis is required if the head of an
agency certifies the rule will not have a
significant adverse economic impact on
a substantial number of small entities.
SBREFA amended the Regulatory
Flexibility Act to require Federal
agencies to provide a statement of the
factual basis for certifying that a rule
will not have a significant economic
impact on a substantial number of small
entities. The following discussion
explains EPA's determination.
1. Identification of Small Cement
Companies
The Small Business Administration
(SBA) has defined small companies in
the Portland cement industry to include
independent companies with less than
750 employees. At the time of the CKD
Regulatory Determination, the Agency
had identified and published a list of
possible small cement companies based
on initial research in Dun and
Bradstreet and similar corporate
business publications. Subsequently,
both the APCA and the Non-Hazwaste
Burner CKD Coalition reviewed this
initial list and provided changes based
on their own research and consultations
with member companies. This resulted
in a mutually agreed-upon list of eight
small U.S. cement companies, each
operating a single plant, in an industry
comprised of 42 companies operating
110 plants in the U.S. and Puerto Rico.
2. Outreach
In addition to working with industry
groups to identify small cement
companies, in July 1997 the Agency sent
a letter to the president of each of the
eight small companies explaining the
SBREFA process, outlining several
possible CKD regulatory approaches,
and requesting comments and
suggestions regarding these options. In
addition, those small companies that
had not previously responded to the
1995 APCA CKD generation and
management practices survey were
urged to return a completed APCA
questionnaire to EPA to facilitate a more
realistic cost and impact assessment. In
response, all eight companies either
returned their comments and
questionnaires directly or provided their
input indirectly through the Non-
Hazwaste Burner CKD Coalition. In
addition, six of the companies presented
their own estimates of compliance costs
for the most stringent of the EPA
regulatory options. The Coalition
subsequently presented SBREFA policy
arguments and recommendations to the
OSWER Deputy Assistant
Administrator.
3. The Agency's RFA Screening
Analysis
Based on the APCA Survey responses
and the cost analysis described
previously, the Agency completed
plant-specific compliance cost estimates
for each of the eight small companies.
Where relevant for individual plants,
major compliance costs included
engineered land disposal units with
ground water monitoring, pelletizing
and compaction of the CKD, closure and
post-closure management for disposal
units, and covers on trucks and the
watering of plant roads to control
airborne dust. The Agency did not
include costs for storage sheds and silos
that might be required at some plants for
controlling dust that could be blown •
from CKD stored prior to shipment for
off-site use. If needed, the cost of such
temporary storage units should be
relatively modest, under $10,000 per
year on an annualized basis. In
summary, for the eight small companies:
• Four would not be negatively
affected (unless they were to lose off-site
CKD markets).
• Three would have incremental
compliance costs as a percent of
baseline sales between 0.3% and 1.0%.
• One small-company would have
costs greater than 1.0%, but still less
than 2% of baseline sales.
As noted, six of the eight small
companies also compiled and presented
independent cost estimates in response
to EPA's letter requesting comments on
alternative regulatory approaches. The
companies' worst case incremental
compliance cost projections were
somewhat higher than EPA's estimates,
with one company under one percent of
sales, four in the one-to-two percent
range, and one between three and four
percent. The greatest part of the
difference between these and the EPA's
estimates stems from the companies'
assumption that all of the five small
companies that presently market CKD
for off-site uses would lose their entire
off-site CKD markets as a result of the
rule. This assumption is particularly
critical for three of the six plants that
currently ship all of their CKD to off-site
uses. In addition, the companies'
projections also assumed the worst-case:
that full municipal solid waste landfill
design standards would be required,
rather than the site specific control '
measures, tailored to local conditions,
which are proposed in today's rule. On
this basis, the companies' estimates
projected an implicit compliance cost
distribution in which at least four of the
six companies would have costs
between one and two percent of sales
revenue, and one would see costs in
excess of three percent.
While this double worst-case
combination can not unequivocally be
ruled out for each and every small plant
individually, the Agency believes that it
represents an extremely unlikely
scenario for projecting impacts of the
rule on the small companies as a group.
In particular, there is little reason to
assume a total loss of off-site markets
due to the Subtitle C "stigma." The
Agency is not proposing to list or
otherwise regulate off-site beneficial
uses generally. The only off-site use
proposed for regulation is that of an
agricultural lime substitute, and the
Agency does not have information
indicating that any of the small
companies currently ship off-site for
this use. Furthermore, current levels of
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Federal Register/Vol. 64, No. 161 /Friday. August 20, 1999 /Proposed Rules
off-site CKD uses are continuing under
the specter of EPA's Regulatory
Determination decision to regulate CKD,
and thus one might argue that any
stigma associated with Federal
regulation of CKD could already be in
effect. For these and other reasons
previously discussed, the Agency
believes that its approach, based on
continuance of off-site use markets and
assuming location-specific flexibility in
State program implementation, provides
for a more realistic high end projection
of initial compliance cost effects.
Although the Agency believes that the
stigma of Subtitle C will not result in
the loss of off-site markets, EPA requests
comment specifically on whether this
rule will affect the availability of
markets for beneficial use of CKD, and
if so, to what extent and for which
particular uses.
45673
4. Agency Findings and Conclusions
Regarding SBREFA Impacts
The Agency's RFA screening study
does not indicate a significant negative
impact on a substantial number of small
companies as a likely outcome of the
proposed rule. With respect to the per-
cent-of-sales cost criterion, EPA's high
end engineering cost estimates project
that not more than one or two small
companies will experience initial
compliance costs greater than one
percent of baseline sales. In addition,
the economic impact analysis projects
that regional cement price increases due
to shifting of initial compliance costs to
cement consumers will partially, if not
totally, offset higher costs for small
companies that might be required to
alter their CKD management practices.
In fact, several of the small companies—
articularly those that do not land-
dispose any wasted dust—ould thus
realize higher net annual profits as a
result of these market impacts.
For the reasons discussed above, I
hereby certify that this rule will not
have a significant adverse economic
impact on a substantial number of small
entities. This rule, therefore, does not
require a regulatory flexibility analysis.
C. Environmental Justice—Applicability
of Executive Order 12898
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 12898, dated February 11, 1994,
and titled "Federal Actions to Address
Environmental Justice in Minority
Populations and Low-Income
Populations," provides for Federal
agencies to consider environmental
justice issues. As explained in its
Regulatory Determination (60 FR 7371
February 7, 1995), EPA announced the'
availability of a report titled Race,
Ethnicity, and Poverty Status of
Populations Living Near Cement Kilns
in the United States.«in the report, the
Agency examined the demographics
around cement plants in order to
determine if there exist any trends at the
national level which indicate there
might be environmental justice
considerations with respect to cement
kiln dust. EPA's study includes
numerous analyses and summaries of
demographic data, and is available in
the RCRA docket. The results of the
demographic studies of populations
surrounding cement kilns indicate that
cement plants are for the most part
located in rural areas populated by
varied types of communities. While the
data do indicate that there are
individual communities with high
percentages of minority or low income
populations surrounding specific
cement kilns, they do not suggest that
specific minorities or poverty-level
populations are overly represented at
the national level.
Today's rule is intended to reduce
risks from the management of CKD and
to benefit all populations. It is not
expected to cause any
disproportionately high and adverse
human health and environmental effects
on minority or low income communities
versus affluent or non-minority
communities. The Agency solicits
comment and input on the implications
of this rule for environmental justice,
from all interested persons, including
members of the environmental justice
community and members of the
regulated community. The Agency
encourages all interested parties to
provide comments or further
information that might assist the Agency
in further assessing impacts on minority
or low-income populations.
D. Protection of Children—Applicability
of Executive Order 13045
The Executive Order 13045, entitled
"Protection of Children from'
Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997)
applies to any rule that EPA determines
(1) is "economically significant" as
defined under Executive Order 12866,
and (2) the environmental health or
safety risk addressed by the rule has a
disproportionate effect on children. If
the regulatory action meets both criteria,
the Agency must evaluate the
environmental health or safety effects of
the planned rule on children; and
«This report is available in the RIC docket (No
F-4-C2A-0016).
explain why the planned regulation is
preferable to other potentially effective
and reasonably feasible alternatives
considered by the Agency.
This proposed rule is not subject to
E.O. 13045 because this is not an
economically significant regulatory
action as defined by E.O. 12866.
However, the Agency has reason to
believe that the environmental health
risk addressed by this action may have
an effect on children. The Agency has
evaluated the environmental health
effects of CKD on children. These
documents are are summarized and
discussed below and copies have been
placed in the RCRA docket for this
action.
Children's Health Protection. In
accordance with §5(501), the Agency
has evaluated the environmental health
effects for CKD on children, and found
that generally the risks to children are
similar to risks estimated to adults.
However, the Agency noted that
exposure to CKD may result in elevated
blood-lead levels in children that live
near cement plants that manage CKD.
The Agency evaluated children's health
through three mechanisms: the risk
assessment to support the Report to
Congress, the examination of health
effects associated with lead, and the
assessment to set risk-based
concentration limits for hazardous
constituents in CKD used as an
agricultural liming agent.
In the risk assessment to support the
Report to Congress, the Agency
evaluated the risks from exposure to
CKD through incidental ingestion of soil
and dermal absorption of contaminants
in CKD. For these exposure pathways,
the Agency adjusted exposure
parameters (e.g., ingestion rate, body
weight) to reflect a five-year childhood
exposure. Based on this analysis, the
Agency concluded that health effects to
children through these exposure routes
were negligible. The analysis is
described in detail in the Technical
Background Document for the Human
Health and Environmental Risk
Assessment in Support of the Report to
Congress on Cement Kiln Dust Waste-
December 1993.
The Agency also evaluated effects of
exposure to CKD on blood-lead levels.
For this analysis, the Agency estimated
concentrations in air, soil, ground water,
surface water, and diet using a fate and '
transport model and then input these
concentrations in the Integrated
Exposure Uptake Biokinetic Model
(IEUBK) to estimate potential blood-lead
levels for children near a cement plant.
The analysis indicated that two of the
five modeled plants may result in blood-
levels above 10 ug of lead/dL of blood
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Federal Register/Vol. 64, No. 161/Friday, August 20, 1999/Proposed Rules
a level at which adverse effects to
children may occur. Based on this
analysis, the Agency noted that CKD
may contribute to elevated blood-lead
levels in children living near
uncontrolled CKD piles. This analysis is
described in detail in Technical
Background Document for the Notice of
Data Availability to Support the
Regulatory Determination on Cement
Kiln Dust—August 31, 1994.46
For the agricultural use risk
assessment, EPA conducted a separate
assessment of risk from hazardous
constituents (metals and dioxins) in
CKD for the child of farmer receptor
scenario. A detailed description of this
analysis is provided in the Risk
Assessment for Cement Kiln Dust Used
as an Agricultural Soil Amendment.
Pathways evaluated for the child of
farmer scenario include incidental
ingestion of contaminated soil, ingestion
of plants grown on amended soil, and
products from animals raised on feed
from CKD amended fields. For these
exposure pathways, the Agency
adjusted exposure parameters (e.g.,
ingestion rate, body weight) to reflect an
18-year childhood exposure. Exposures
to lead were evaluated separately for
this analysis. The IEUBK model was
used to evaluate lead exposure in young
children (birth to 7 years of age). The
constituent concentration limit
proposed for lead in todays rulemaking
is based on EPA's analysis of predicted
blood lead levels in children due to
ingestion of CKD amended soil. Risks
from other hazard constituents in
agriculturally applied CKD did not
differ significantly between children
and adult exposure scenarios.
Although the Agency has noted the
potential for adverse effects to children
based on the current management of
CKD, today's proposed rule will provide
measures to ensure the protection of
children's health. In particular, the '
proposed management standards will
limit exposures via the ground water
route and air pathway. In addition, the
Agency believes that the storm-water
run-off regulations will be adequate to
protect from exposures via the overland
runoff routes. These measures will limit
uncontrolled releases from CKD piles,
preventing children's exposures, and
thus, protecting children's health.
Finally, the development of risk-based
concentration limits for hazardous
constituents in CKD used agriculturally
will ensure that children are adequately
protected against potential
environmental health risks from CKD
used in this manner.
E. National Technology Transfer and
Advancement Act
44 Errata for this document are identified in the
Supplemental Errata for this document are
identified in the Supplemental Errata Document for
the Technical Background Document for the Notice
of Data Avialability on Cement Kiln Dust-
September 30.1994.
Under section 12(d) of the National
Technology Transfer and Advancement
Act, the Agency is directed to use
voluntary consensus standards in its
regulatory activities unless to do so
would be inconsistent with applicable
law or otherwise impractical. Voluntary
consensus standards are technical
standards (e.g., materials specifications,
test methods, sampling procedures,
business practices, etc.) that are
developed or adopted by voluntary
consensus standard bodies. Where
available and potentially applicable
voluntary consensus standards are not
used by EPA, the Act requires the
Agency to provide Congress, through
the Office of Management and Budget,
an explanation of the reasons for not
using such standards. The Agency is not
aware of any available or potentially
applicable voluntary consensus
standards that would be applicable to
the CKD issues addressed in this
proposed rule.
F. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA). Public
Law 104-4, establishes requirements for
Federal Agencies to assess the effects of
their regulatory actions on State, local,
and tribal governments and the private
sector. -Under section 202 of the UMRA,
EPA generally must prepare a written
analysis, including a cost-benefit
analysis, for proposed and final rules
with "Federal mandates" that may
result in expenditures to State, local,
and tribal governments, in the aggregate,
or to the private sector, of $100 million
or more in any one year. Before
promulgating an EPA rule for which a
written statement is needed, section 205
of the UMRA generally requires EPA to
identify and consider a reasonable
number of regulatory alternatives and
adopt the least costly, most cost-
effective, or least burdensome
alternative that achieves the objectives
of the rule. The provisions of section
205 do not apply when they are
inconsistent with applicable law.
Moreover, section 205 allows EPA to
adopt an alternative other than the least
costly, most cost-effective, or least
burdensome alternative if the
Administrator publishes with the final
rule an explanation why that alternative
was not adopted. Before EPA establishes
any regulatory requirements that may
significantly or uniquely affect small
governments,'including tribal
governments, it must have developed
under section 203 of the UMRA a small
government agency plan. The plan must
provide for notifying potentially
affected small governments, enabling
officials of affected small governments
to have meaningful ancTtimely input in
the development of EPA regulatory
proposals with significant Federal
intergovernmental mandates, and
informing, educating, and advising
small governments on compliance with
the regulatory requirements.
EPA's analysis of compliance with
UMRA found that the proposed action
imposes no enforceable duty on any
State, local, or tribal governments and
therefore does not include a Federal
mandate that may result in estimated
costs of $100 million or more to either
State, local, or tribal governments in the
aggregate. EPA also has determined that
this rule contains no regulatory
requirements that might significantly or
uniquely affect small governments. In
addition, as discussed above, the private
sector is not expected to incur costs
exceeding $100 million. EPA has
fulfilled the requirement for analysis
under the Unfunded Mandates Reform
Act.
G. Paperwork Reduction Act
The information collection
requirements in this proposed rule have
been submitted for approval to the
Office of Management and Budget
(OMB) under the Paperwork Reduction
Act, 44 U.S.C. 3501 etseq. An
Information Collection Request (ICR)
document has been prepared by EPA
(ICR No. 1870.01) and a copy may be
obtained from Sandy Farmer by mail at:
OPPE Regulatory Information Division,
U.S. Environmental Protection Agency
(2137), 401 M Street S.W., Washington
D.C. 20460, or by calling the Agency
directly at (202) 260-2740. A copy may
also be obtained by email at
farmer.sandy@epamail.epa.gov, or
downloaded off of the internet athttp:/
/www. epa.gov/icr.
The bottom line annual burden47 to
respondents over three years is about
4,000 hours with a cost of
approximately $21 million.
47 Burden means the total time, effort, or financial
resources expended by persons to generate,
maintain, retain, or disclose or provide information
to of for a Federal Agency. This includes the time
needed to review instructions; develop, acquire,
install, and utilize technology and systems for the
purposes of collecting, validating, and verifying
information, processing and maintaining
information, and disclosing and providing
information; adjust the existing ways to comply
with any previously applicable instructions and —
requirements; train personnel to respond to a
collection of information; search data sources:
complete and review the collection of information;
and transmit or otherwise disclose the information.
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Federal Register/Vol. 64. No, 161/Friday, August 20, 1999/Proposed Rules
45675
Approximately 88%, or $18.5 million of
the total cost is attributable to O&M
costs (consultant fees, sampling fees,
and mailing costs). The capital costs
incurred by facilities for the installation
of ground-water monitoring systems,
and the acquisition of new filing
cabinets are approximately $206
thousand and $69 thousand per year,
respectively. The bottom line annual
burden to the Agency is about 1000
hours, with a cost of approximately $43
thousand, of which capital costs are
insignificant.
EPA estimates that for each cement
kiln dust landfill unit, there will be an
average reporting burden of about 30
hours annually, which includes time for
preparing and submitting
demonstrations, notifications, and
certifications to the EPA Regional
Administrator. EPA estimates that each
CKD landfill unit will incur an average
annual recordkeeping burden of about
150 hours. This estimate includes time
for reading regulations, and preparing
demonstrations, notifications, and
certifications to be placed in the
operating record.
EPA estimates that cement
manufacturing facilities that do not
operate CKD landfills will incur an
average reporting burden of less than
one hour annually, and a recordkeeping
burden of about three hours annually.
The recordkeeping burden estimate
includes time for reading the
regulations, sampling and analyzing
dust, and placing notations,
certifications, and demonstrations in the
operating record.
EPA may not conduct or sponsor, and
a person is not required to respond to
a collection of information unless it
displays a currently valid OMB control
number. The OMB control numbers for
the Agency's regulations are listed in 40
CFR Part 9 and 48 CFR Chapter 15.
Comments are requested on EPA's
need for this information, the accuracy
of the provided burden estimates, and
any suggested methods for minimizing
respondent burden, including the use of
automated collection techniques. Send
comments on the ICR to the Director,
OPPE Regulatory Information Division;
U.S. Environmental Protection Agency
(2137), 401 M Street S.W., Washington,
D.C. 20460, and to the Office of
Information and Regulatory Affairs,
Office of Management and Budget, 725
17th Street N.W., Washington D.C.
20503 marked "Attention: Desk Officer
for EPA." Please include the ICR
number in any correspondence. Since
OMB is required to make a decision
concerning the ICR between 30 and 60
days after August 20, 1999, a comment
to OMB is best assured of having its full
effect if OMB receives it by September
20, 1999. The final rule will respond to
any OMB^pr public comments onjthe
information collection requirements
contained in this proposal.
H. Executive Order 12875: Enhancing
the Intergovernmental Partnership
Under Executive Order 12875, EPA
may not issue a regulation that is not
required by statute and that creates a
mandate upon a State, local or tribal
government, unless the Federal
government provides the funds
necessary to pay the direct compliance
costs incurred by those governments, or
EPA consults with those governments. If
EPA complies by consulting. Executive
Order 12875 requires EPA to provide to
the Office of Management and Budget a
• description of the extent of EPA's prior
consultation with representatives of
affected State, local and tribal
governments, the nature of their
concerns, any written communications
from the governments, and a statement
supporting the need to issue the
regulation. In addition. Executive Order
12875 requires EPA to develop an
effective process permitting elected
officials and .other representatives of
State, local and tribal governments "to
provide meaningful and timely input in
the development of regulatory proposals
containing significant unfunded
mandates."
Today's proposed rule implements
requirements specifically set forth by
the Congress in RCRA without the
exercise of any discretion by EPA.
Accordingly, the requirements of
section 3(b) of Executive Order 13084
do not apply to this proposed rule.
/. Executive Order 13084: Consultation
and Coordination with Indian Tribal
Governments
Under Executive Order 13084, EPA
may not issue a regulation that is not
required by statute, that significantly or
uniquely affects the communities of
Indian tribal governments, and that
imposes substantial direct compliance
costs on those communities, unless the
Federal government provides the funds
necessary to pay the direct compliance
costs incurred by the tribal
governments, or EPA consults with
those governments. If EPA complies by
consulting, Executive Order 13084
requires EPA to provide to the Office of
Management and Budget, in a separately
identified section of the preamble to the
rule, a description of the extent of EPA's
prior consultation with representatives
of affected tribal governments, a
summary of the nature of their concerns,
and a statement supporting the need to
issue the regulation. In addition, -
Executive Order 13084 requires EPA to
develop an effective process permitting
elected officials and other
representatives of Indian tribal "
governments "to provide meaningful
and timely input in the development of
regulatory policies on matters that
significantly or uniquely affect their
communities."
Today's proposed rule implements
requirements specifically set forth by
the Congress in RCRA without the
exercise of any discretion by EPA.
Accordingly, the requirements of
section 3(b) of Executive Order 13084
do not apply to this proposed rule.
List of Subjects
40 CFR Part 259
Environmental protection.
Administrative practice and procedures,
Air pollution control, Reporting and
recordkeeping requirements. Waste
treatment and disposal, Water pollution
control.
40 CFR Parts 261 and 266
Environmental protection. Hazardous
waste. Recycling, Reporting and
recordkeeping requirements.
40 CFR Part 270
. Environmental protection.
Administrative practice and procedure,
Hazardous waste.
Dated: July 30, 1999.
Carol M. Browner, •
Administrator.
Appendix I to the Preamble—Justification
for CKD Listing
Subtitle C of RCRA, as amended,
establishes a Federal program for the
comprehensive regulation of hazardous
wastes. Hazardous waste is defined at section
1004(5) of RCRA, 42 U.S.C. 6903(5) as: (1)
those solid wastes which may cause or
significantly contribute to an increase in
mortality, serious irreversible illness, or
incapacitating reversible illness; and (2)
those solid wastes which may pose a
substantial present or potential hazard to
human health or the environment when
improperly managed.
Section 3001 of RCRA requires that EPA
define which solid wastes are hazardous by
either identifying the hazardous
characteristics of hazardous wastes or listing
particular hazardous wastes. Section 3001 (a)
of RCRA provides the Agency with flexibility
in deciding whether to list or identify a waste
as hazardous and to consider the need for
regulation. Specifically, RCRA section 3001
requires that EPA, in determining whether to
list a waste as hazardous waste, or to
otherwise identify a waste as hazardous
waste, decide whether a waste "should be
subject to the requirements of Subtitle C."
Hence, RCRA section 3001 authorizes EPA to
determine when Subtitle C regulation is
appropriate. The Agency may evaluate
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Federal Register/Vol. 64, No. 161/Friday, August 20, 1999/Proposed Rules
wastes from either specific or nonspecific
sources and decide to list a waste as
hazardous if it meets one of the three criteria
codified at 40 CFR 261.11. The criteria for
identifying characteristics and for listing
wastes as hazardous are: (1) wastes may be
classified as "characteristic" wastes if they
have the properties described at 40 CFR
261.21-261.24 which would cause them to be
classified as having the characteristics of
ignitability, corrosivity, reactivity or toxicity;
(2) wastes may be classified as acutely
hazardous if they are fatal to humans at low
doses, lethal in animal studies at particular
doses designated in the regulation, or
otherwise capable of causing or significantly
contributing to an increase in serious illness;
and (3) wastes may be listed as hazardous if
they contain hazardous constituents
identified in Appendix VIII of 40 CFR Part
261 and the Agency concludes, after
considering eleven factors enumerated in 40
CFR 261.11 (a) (3), that the waste is capable of
posing a substantial present or potential-
hazard to human health or the environment
when improperly managed. A substance is
listed in Appendix VIII if it has been shown
in scientific studies to have toxic,
carcinogenic, mutagenic, or teratogenic
effects on humans or other life forms. One of
the factors the Administrator is to consider
is the potential of the constituent (from
Appendix VIII to 40 CFR Part 261) or any
toxic degradation product of the constituent
to migrate from the waste into the
environment under the plausible types of
improper management to which the waste
could be subjected (see 40 CFR
EPA has evaluated CKD against the listing
criteria and determined that CKD meets the
criteria at §261.1 1 (a) (3), as summarized in
Table 1 follows:
TABLE 1.—CKD LISTING DETERMINATION RATIONALE
Criteria at §261.11(a)(3)
Rationale
Nature of the Toxicity Presented by the Constituents (§261.11(a)(3)(i))
Concentration of the Constituent in the Waste (§261.11(a)(3)(ii))
Potential of the Constituent or Any Toxic Degradation Product of the
Constituent to Migrate From the Waste Into the Environment Under
Specified Types of Improper Management (§261.11(a)(3)(iii)).
The Persistence of the Constituent or Any Toxic Degradation Product
of the Constituent (§261.11(a)(3)(iv)).
The Potential for the Constituent or Any Toxic Degradation Product of
the Constituent to Degrade Into Non-Harmful Constituents and the
Rate of Degradation (§261.11(a)(3)(v)).
Degree to Which the Constituent or Any Degradation Product of the
Constituent Bioaccumulates in Ecosystems (§261.11(a)(3)(vi)).
Plausible Types of Improper Management to Which the Waste Could
Be Subjected (§261.11(a)(3)(vii)).
Quantities of the Waste Generated at Individual Generation Sites or on
a Regional or National Basis (§261.11(a)(3)(viii)).
Nature and Severity of the Human Health and Environmental Damage
That Has Occurred as a Result of the Improper Management of
Wastes Containing the Constituent (§261.11(a)(3)(ix)).
Action Taken By Other Governmental Agencies or Regulatory Pro-
grams Based on the Health or Environmental Hazard Posed by the
Waste or Waste Constituents (§261.11(a)(3)(x)).
CKD contains toxic metals and organics listed in Appendix VIII to Part
261 for which non-cancer and cancer RfDs have been established.
Amount of Appendix VIII constituents in CKD are high due to mass
loadings into the cement manufacturing process.
The 13 cases of documented damage to ground water which are dis-
cussed in today's proposal, the Technical Background Document on
Ground Water Controls at CKD Landfills, the 1993 Report to Con-
gress, and subsequent NODA, demonstrate a high potential for Ap-
pendix VIII constituents to migrate from CKD into ground water. As
discussed in the EPA's 1995 Regulatory Determination (60 FR
7370), Agency modeling of risks to human health due to fine particu-
late dust (10 microns or less) and 36 cases of documented damage
to air demonstrate a high potential for contaminants to migrate into
the environment via fugitive dust emissions. Modeling results dis-
cussed in the NODA on human health and environmental risk as-
sessment (59 FR 47133) indicate human health risks of concern
from CKD-derived chemical contaminants via indirect food chain
pathways.
Metals found in. CKD are highly persistent in the environment.
Constituents of concern in CKD- are primarily metals which, unlike
organics, do not have the potential to degrade into non-harmful con-
stituents.
Where CKD is used in agricultural applications, there is a potential for
2,3,7,8-substituted dioxin and 2,3,7,8-substituted dibenzofuran, which
are found in CKD, to bioaccumulate in living tissue.
As discussed in the Report to Congress and subsequent Regulatory
Determination (60 FR 7368), CKD is typically managed on-site in un-
lined and uncovered landfills and piles located in abandoned quar-
ries, retired portions of operating quarries or nearby ravines. Some
active piles are also managed underwater or adjacent to surface
water and/or agricultural lands. A review of 1995 CKD management
practices suggested that, overall, management practices had not
substantially changed from those reported in the 1993 Report to
Congress. Current management practices are similar to past man-
agement scenarios, which are inadequate to limit contaminant re-
leases from CKD management units. Moreover, additional damage
cases have been identified which suggest current management prac-
tices are inadequate.
Cement plants average 47,000 metric tons CKD generated per year
(1995 average). In 1995, the cement industry generated an esti-
mated 4.1 million metric tons of CKD.
As of 1997, EPA has documented evidence of damage to ground
water and surface water at 16 sites, three of which have been listed
on the Superfund NPL under CERCLA, and one of which remains on
the NPL. 36 cases of damage to air have been documented at dif-
ferent sites.
Some States have recognized that mismanagement of CKD can cause
substantial environmental problems, including Michigan, Pennsyl-
vania, Texas, and Washington; however, the Agency believes State
regulatory controls need to be improved as existing requirements
vary substantially from State to State. Problems with repeated re-
leases of CKD to the environment suggest that the implementation of
existing regulations is uneven.
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45677
TABLE 1.—CKD LISTING DETERMINATION RATIONALE—Continued
Criteria at §261.11(a)(3)
Such Other Factors As May Be Appropriate (§261.11(a)(3)(xi))
Rationale
When mixed with water, CKD often exhibits the characteristic of
corrosivity (40 CFR 261.22).
Based on the § 261.11 (a) (3) criteria, the
Agency believes that additional control of
improperly managed CKD is warranted to
protect the public from human health risks
and to prevent environmental damage
resulting from current management practices
for this waste. The primary concerns to be
addressed through the 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. There
is the potential for ground-water
contamination in both karst and non-karst
areas, however, and EPA is particularly
concerned about areas underlain by
limestone with karst features. The Agency
believes these potential risks can be
eliminated through the implementation of
more comprehensive management standards.
Although improperly managed CKD can
create significant risks, the Agency believes
that these risks can effectively be addressed
by adopting certain basic management
techniques. CKD poses risks to human health
and the environment only in specific
circumstances under particular conditions
(e.g., disposal of uncompacted CKD in
unlined. uncovered landfills exposed to
winds and the influx of ground water and
rain water). Therefore, EPA is proposing to
exclude from listing as hazardous waste CKD
that is properly managed according to
standards specified in today's proposal (e.g.,
disposal of wet, compacted CKD, otherwise
known as "conditioned" CKD, in covered,
lined landfills located above the natural
water table), or in a landfill with an
alternative design that meets the performance
standard and has been approved by the EPA
Regional Administrator (or the State Director,
in authorized States).
Appendix H to the Preamble—Reportable
Quantities
All hazardous wastes listed under RCRA
and codified in 40 CFR 261.31 through
261.33, as well as any solid waste that is not
excluded from regulation as a hazardous
waste under 40 CFR 261.4ft>) and that
exhibits one or more of the characteristics of
a RCRA hazardous waste (as defined in
§§261.21 through 261.24), are hazardous
substances under the Comprehensive
Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA), as amended
(see CERCLA section 101 (14)(C)). CERCLA
hazardous substances are listed in Table
302.4 at 40 CFR 302.4 along with their
reportable quantities (RQs). If a hazardous
substance is released in an amount, that
equals or exceeds its RQ, the release must be
reported immediately to the National
Response Center (NRC) pursuant to CERCLA
section 103.
A. Reporting Requirements
Under CERCLA section 103(a), the person
in charge of a vessel or facility from which
a hazardous substance has been released in
a quantity that is equal to or exceeds its RQ
must immediately notify the NRC as soon as
that person has knowledge of the release. The
toll-free telephone number of the NRC is 1-
800-424-8802; in the Washington, D.C.,
metropolitan area, the number is (202) 267-
2675. In addition to this reporting
requirement under CERCLA, section 304 of
the Emergency Planning and Community
Right-to-Know Act of 1986 (EPCRA) requires
owners or operators of certain facilities to
report releases of extremely hazardous
substances and CERCLA hazardous
substances to State and local authorities.
EPCRA section 304 notification must be
given immediately after the release of an RQ
or more to the community emergency
coordinator of the local emergency planning
committee for any area likely to be affected
by the release and to the State emergency
response commission of any State likely to be
affected by the release.
Under section 102(b) of CERCLA, all
hazardous substances (as defined by CERCLA
section 101 (14)) have a statutory RQ of one
pound, unless and until the RQ is adjusted
by regulation. In today's rule, EPA is
proposing to list cement kiln dust waste that
is not beneficially used and not managed in
accordance with 40 CFR Part 259, or cement
kiln dust waste that is beneficially used for
agricultural purposes and does not meet the
requirements in 40 CFR 259.17. Such CKD
would be added to the CERCLA list of
hazardous substances and would have an
unadjusted statutory RQ of one-pound. The
Agency is also proposing today to adjust the
one-pound statutory RQ for CKD hazardous
processes, which are used as secondary RQ
adjustment criteria. These natural
degradative processes are biodegradation
hydrolysis, and photolysis (BHP). If a
hazardous substance, when released into the
environment, degrades relatively rapidly to a
less hazardous form by one or more of the
BHP processes, its primary criteria RQ is
generally raised one level. Conversely, if a
hazardous substance degrades to a more
hazardous product after its release, the
original substance is assigned an RQ equal to
the RQ for the more hazardous substance,
which may be one or more levels lower than
the RQ for the original substance.
The standard methodology used to adjust
the RQs for RCRA hazardous waste streams
differs from the methodology applied to
individual hazardous substances. The
procedure for assigning RQs to RCRA waste
streams is based on an analysis of the
hazardous constituents of the waste streams
The constituents of each RCRA hazardous
waste stream are identified in 40 CFR part
261, Appendix VII. EPA determines an RQ
for each constituent within the waste stream
and establishes the lowest RQ value of these
constituents as the adjusted RQ for the waste
stream. Therefore, in today's rule, the Agency
is proposing a one-pound RQ for listed
hazardous CKD waste based on the one-
pound RQs for arsenic and mercury (i.e., the
two constituents within this waste with the
lowest RQ).
C. Application of the CERCLA Mixture Rule
to Listed Hazardous CKD Waste.
waste.
B. Basis for Proposed RQ Adjustment
EPA's methodology for adjusting the RQs
of individual hazardous substances begins
with an evaluation of the intrinsic physical,
chemical, and lexicological properties of
each hazardous substance. The intrinsic
properties examined, called "primary
criteria", are aquatic toxicity, mammalian
toxicity (oral, dermal, and inhalation),
ignitability, reactivity, chronic toxicity, and
potential carcinogenicity.
Generally, for each intrinsic property, EPA
ranks the hazardous substance on a five-tier
scale, associating a specific range of values
on each scale with an RQ value of I, 10, 100,
1,000, or 5,000 pounds. Based on the various
primary criteria, the hazardous substance
may receive several tentative RQ values. The
lowest of the tentative RQs becomes the
"primary criteria RQ" for that substance.
After the primary criteria RQ is assigned,
the substance is evaluated further for its
susceptibility to certain degradative
Although in today's rule EPA is proposing
a one-pound RQ for listed hazardous CKD
waste, EPA is also proposing to modify its
interpretation of the mixture rule, as
described below, to allow facilities to use the
maximum observed concentrations of the
constituents within listed hazardous CKD
waste in determining when to report releases
of this waste.
For listed hazardous CKD waste, where the
actual concentrations of the hazardous
constituents are not known, EPA is today
proposing that persons managing CKD waste
have the option of reporting on the basis of
the maximum observed concentrations that
have been identified by EPA (see Table 2
below). Thus, although actual knowledge of
constituent concentrations may not be
known, constructive knowledge of the EPA-
identified maximum concentrations has been
assumed. This assumption is based on actual
sampling data, specifically the maximum
observed concentrations of hazardous
constituents in Listed hazardous CKD
waste.4" Table 2 below identifies the
"8 To review these sampling data, see Appendix
E of the Technical Background Document-
Analysis of CKD Characteristics and Generation
Data. Office of Solid Waste. U.S. EPA. August 1994-
Continued
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Federal Register/Vol. 64, No. 161/Friday, August 20, 1999 /Proposed Rules
hazardous constituents for Listed hazardous
CKD waste, their maximum observed
concentrations in parts per million (ppm),
the constituents' RQs, and the number of
pounds of the waste needed to contain an RQ
of each constituent.
TABLE 2.—POUNDS REQUIRED TO CONTAIN RQ FOR EACH CONSTITUENT OF LISTED HAZARDOUS CKD WASTE
Waste stream constituent
CKD
antimony
arsenic
barium
beryllium
cadmium
chromium
lead
mercury
nickel
selenium
silver
thallium
Maximum
ppm
C-fQ
19
on-?
776-
RQ (Ib)
10
1,000
Pounds required
_. to contain RQ
13,888,889
1,931
713,267
817,661
6,494
11,111,111
1,353
16,667
909,091
325,733
17,271,157
1,288,660
For example, if Listed hazardous CKD
waste is released from a facility, and the
actual concentrations of the waste's
constituents are not known, it may be
assumed that the concentrations will not
exceed those listed above in Table 2. Thus,
applying the mixture rule, the RQ threshold
for lead in this waste is 1,353 pounds,
assuming the maximum concentration listed
in Table 2. Reporting would be required only
when an RQ or more of any hazardous
constituent is released.
Where the concentration levels of all
hazardous constituents are known, the
traditional mixture rule would apply. Under
this scenario, if the actual concentration of
lead is 100 ppm. 100,000 pounds of the
Listed hazardous CKD waste would need to
be released to reach the RQ for lead. As
applied to Listed hazardous CKD waste,
EPA's proposed approach reduces the burden
of notification requirements for the regulated
community and adequately protects human
health and the environment.
The modified interpretation of the mixture
rule as it applies to Listed hazardous CKD
waste in today's proposal is consistent with
EPA's approach in a recent final rule listing
four petroleum refining wastes (K169, K170,
K171, and K172) as RCRA hazardous wastes
and CERCLA hazardous substances (See 63
FR 42110, August 6. 1998). In that rule, the
Agency promulgated a change in its
interpretation of the mixture rule to allow
facilities to consider the maximum observed
concentrations for the constituents of the
petroleum refining wastes in determining
when, to report releases of the four wastes.
EPA codified this change to its mixture rule
interpretation in 40 CFR 302.6(b)(l) as a new
subparagraph (iii). If the Agency should take
the rule final, EPA will revise this same
subparagraph to extend the modified
interpretation of the mixture rule to include
Listed hazardous CKD waste.
D. Unlisted RCRA Characteristic Waste
Kiln dust waste that is beneficially used
(other than for agricultural purposes) or
managed in accordance with 40 CFR Part
259, would not be listed as a RCRA
hazardous waste or CERCLA hazardous
substance by this rulemaking. Nevertheless,
such wastes may be a listed hazardous waste
if there is a significant violation of the 40
CFR Part 259 standards, or considered
unlisted CERCLA hazardous substances (as
described in 40 CFR 302.4 (b)) when all of the
following conditions are met:
(1) the waste is a solid waste, as defined
by 40 CFR 261.2;
(2) the waste is not excluded from
regulation as a hazardous waste under 40
CFR 261.4(b); and.
(3) the waste exhibits any of the
characteristics (i.e., ignitability, corrosivity,
reactivity, or toxicity) of a RCRA hazardous
waste (defined in 40 CFR 261.20 through
261.24).
Under proposed revisions to 40 CFR
261.4(b) included in today's rule, most CKD
wastes have been excluded from regulation
as a hazardous waste. Of the CKD wastes that
are not excluded, few are expected to exhibit
RCRA characteristics. As stated elsewhere in
this preamble, cement kiln dust itself does
not exhibit the RCRA hazardous waste
characteristic of corrosivity, and the waste
exhibits the toxicity characteristic
infrequently, and only for certain metals.
Therefore, CKD waste only rarely is expected
to qualify as a RCRA characteristic waste
and, thus, an unlisted CERCLA hazardous
substance.
For the reasons set out in this
preamble, title 40, chapter I of the Code
of Federal Regulations is proposed to be
amended as follows:
1. Part 259 is added to read as follows:-
PART 259—MANAGEMENT
STANDARDS FOR CEMENT KILN
DUST WASTE
Subpart A—General Provisions
Sec.
259.1 Purpose, scope, and applicability.
259.2 Definitions.
259.3-259.9 [Reserved]
Subpart B—Location Restrictions
259.10 Placement above the natural water
table.
259.11 Floodplains.
259.12 Wetlands.
259.13 Fault areas.
259.14 Seismic impact zones.
259.15 Unstable areas.
259.16 Karst terrains.
259.17 Regulation of agricultural use '
259.18-259.19 [Reserved]
Subpart C—Air Criteria
259.20 Air criteria for tanks, containers, or
buildings.
259.21 Air criteria for trucks transporting
cement kiln dust.
259.22 Air criteria for landfills.
259.23 Recordkeeping requirements.
259.24-259.29 [Reserved]
Subpart D—Design Criteria
259.30 Design criteria.
259.31-259.39 [Reserved]
Subpart E—Ground-Water Monitoring and
Corrective Action
259.40 Applicability.
259.41 Ground-water monitoring systems
259.42 [Reserved]
259.43 Ground-water sampling and analysis
requirements.
259.44 Detection monitoring program.
259.45 Assessment monitoring program.
259.46 Assessment of corrective measures^
259.47 Selection of remedy.
259.48 Implementation of the corrective
action program.
259.49 [Reserved]
Subpart F—Closure and Post-Closure Care
259.50 Closure criteria.
259.51 Post-closure care requirements
259.52-259.59 [Reserved]
Subpart G—Financial Assurance Criteria
259.60 Applicability.
259.61 Financial assurance for closure.
259.62 Financial assurance for post-closure
The document Is located in the EPA RIC docket No
F-94-RCKA-FFFFF.
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45679
259.63 Financial assurance for corrective
action.
259.64 Allowable mechanisms.
259.65 Discounting.
Appendix I to Part 259—Constituents for
Detection Monitoring
Authority: 42 U.S.C. 6912(a), 6912(b)(3)(C)
and 6924 (x).
Subpart A—General Provisions
§259.1 Purpose, scope, and applicability.
(a) The purpose of this part is to
establish minimum national criteria for
all cement kiln dust waste landfill
(CKDLF) units. These minimum
national criteria ensure the protection of
human health and the environment.
(b) Regulations in this part apply to
any cement kiln dust (CKD) waste
actively managed [90 days after the
effective date of the final rule], except
as otherwise specifically provided in
paragraph (d) of this section, including
CKD managed in new CKDLF units,
existing CKDLF units, and expansions.
(c) These criteria.do not apply to CKD
managed prior to 90 days after the date
of publication of the final rule, except
as otherwise specifically provided in
paragraph (d) of this section.
(d) CKDLF units that receive waste
after the date of publication of this
proposal, but stop receiving waste
before [the effective date of the final
rule], are exempt from all the
requirements of this part 259, except the
final cover requirement specified in
§ 259.50. The final cover must be
installed within six months of last
receipt of CKD waste. Units described in
this paragraph that do not have a
complete cover installation within this
six month period will be subject to all
of the requirements of this part 259,
unless otherwise specified.
(e) The compliance date for all
requirements of this part 259, unless
otherwise specified, is [two years after
the effective date of the final rule], for
all CKDLF units that receive waste after
[the effective date of the final rule].
(f) Nothing in this part prevents,
restricts, or regulates the beneficial use
of CKD as a stabilizer or solidifier
during RCRA cleanups under sections
3004(u), 3004(v) and 3008(h), CERCLA
response actions that are carried out in
accordance with the requirements of 40
CFR Part 300—the National Oil and
Hazardous Substances Pollution
Contingency Plan (NCP), or when the
EPA Regional Administrator (or the
State, in authorized States) finds that
the beneficial use of CKD in other cases
for remedial purposes is protective of
human health and the environment.
§259.2 Definitions.
This section contains definitions for
terms that appear throughout this,part;
additional definitions appear in the
specific sections to which they apply.
Active life means the period of
operation beginning with the initial
receipt of CKD waste and ending at
completion of closure activities in
accordance with §259.50.
Active management means a facility
or unit that receives CKD waste and that
has not been closed in accordance with
§259.50.
Aquifer means a geological formation,
group of formations, or portion of a
formation capable of yielding significant
quantities of ground water to wells or
springs.
Beneficial Use of CKD means the
substitution of CKD for another product
based on similar properties. For
purposes of today's proposed rule,
beneficial use of CKD includes, but is
not restricted to, waste stabilization and
general construction (e.g., off-site
management of CKD as surface material
in unpaved roads and parking lots).
Carbonate terrain means terrain
composed of carbonate bedrock (e.g.,
limestone or dolomite) that consists
chiefly of carbonate minerals such as
calcite and dolomite. In addition to
limestone and dolomite, carbonate
terrains may also contain variable
amounts of aluminous shale, calcareous
muds, and sands.
Cement kiln dust waste (CKD) means
the fine paniculate solids, associated
with the production of Portland cement,
which are collected by air pollution
control devices used to clean the kiln
exhaust.
Cement kiln dust waste landfill
(CKDLF) unit means a discrete area of
land or an excavation that receives CKD
waste, and that is not a land application
unit, surface impoundment, waste pile,
as those terms are defined under §257.2
of this chapter, or injection well as
defined by 40 CFR Parts 144 and 146.
A CKDLF unit may receive other types
of non-hazardous industrial wastes,
such as kiln brick, construction debris,
mining overburden and other
commercial solid waste (as defined in
§258.2 of this chapter). A CKDLF unit
may be a new CKDLF unit, an existing
CKDLF unit, or an expansion of an
existing CKDLF unit.
EPA Regional Administrator means
the chief administrative officer of the
EPA Region responsible for
implementing the Subtitle C solid waste
permit program. This reference only
applies to a State that has not chosen to
create a CKD regulatory program under
State law. In States with an authorized
RCRA program, all references to the
EPA Regional Administrator should be
read as referring to the State Director, or
other State official responsible for
implementing the CKD regulatory
program.
Existing CKDLF unit means any
cement kiln dust waste-landfill unit that
is receiving CKD as of 90 days after the
effective date of the final rule. Waste
placement must be consistent with past
operating practices or operating
practices modified to ensure good
management.
Facility means all contiguous land
and structures, other appurtenances,
and improvements on the land used for
the disposal of CKD.
Ground water means water below the
land surface in a zone of saturation.
Expansion means a lateral or vertical
expansion of the waste boundaries of an
existing CKDLF unit.
Leachate means a liquid that has
passed through or emerged from CKD
and contains soluble, suspended, or
miscible materials removed from such
waste.
New CKDLF unit means any cement
kiln dust landfill unit or lateral
expansion of an existing CKDLF unit,
that has not received waste prior to 90
days after the effective date of the final
rule.
Person(s) managing CKD waste means
any person responsible for transport,
disposal or sale of any CKD waste,
including owners and operators of CKD
waste landfills.
Run-off means any rainwater,
leachate, or other liquid that drains over'
land from any part of a facility.
Run-on means any rainwater,
leachate, or other liquid that drains over
land onto any part of a facility.
Saturated zone means that part of the
earth's crust in which all voids are filled
with water.
Uppermost aquifer means the geologic
formation nearest the natural ground
surface that is an aquifer, as well as,
lower aquifers that are hydraulically
interconnected with this aquifer within
the facility's property boundary. This
definition specifically includes
discontinuous aquifers which are
perched.
Waste management unit boundary
means a vertical surface located at the
hydraulically downgradient limit of the
unit. This vertical surface extends down
into the uppermost aquifer.
§§259.3-259.9 [Reserved]
Subpart B—Location Restrictions
§ 259.10 Placement above the natural
water table.
(a) CKD must be managed in a CKDLF
unit with a base that is located above
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the upper limit of the natural water
table.
(b) For purposes of this section
natural water table means the natural
level at which water stands in a shallow
well open along its length and
penetrating the surficial deposits just
deeply enough to encounter standing
water at the bottom. This level is
uninfluenced by ground-water pumping
or other engineered activities.
§259.11 Floodplains.
(a) CKD shall not be managed in a
CKDLF unit located in a 100-year
floodplain unless a demonstration is
made to the EPA Regional
Administrator that the unit will not
restrict the flow of the 100-year flood,
reduce the temporary water storage
capacity of the floodplain, or result in
washout of solid waste so as to pose a
hazard to human health and the
environment. The person managing
CKD waste must place a demonstration
in the operating record and notify the
EPA Regional Administrator that the
demonstration has been placed in the
operating record.
(b) For purposes of this Section:
(1) Floodplain means the lowland and
relatively flat areas adjoining inland and
coastal waters, including flood-prone
areas of offshore islands, that are
inundated by the 100-year flood.
(2) 100-year flood means a flood that
has a 1-percent or greater chance of
recurring in any given year or a flood of
a magnitude equaled or exceeded once
in 100 years on the average over a
significantly long period.
(3) Washout means the carrying away
of solid waste by waters of the base
flood.
§259.12 Wetlands.
(a) CKD shall not be managed in
CKDLF units located in wetlands,
unless the following demonstrations are
made to the EPA Regional
Administrator:
(1) Where applicable under section
404 of the Clean Water Act or applicable
State wetlands laws, the presumption
that a practicable alternative to the
proposed landfill is available which
does not involve wetlands is clearly
rebutted;
(2) The construction and operation of
the CKDLF unit will not:
(i) Cause or contribute to violations of
any applicable State water quality
standard,
(ii) Violate any applicable toxic
effluent standard or prohibition under
section 307 of the Clean Water Act,
(iii) Jeopardize the continued
existence of endangered or threatened
species or result in the destruction or
adverse modification of a critical
habitat, protected under the Endangered
Species Act of 1973, and
(iv) Violate any requirement under the
Marine Protection, Research, and
Sanctuaries Act of 1972 for the
protection of a marine sanctuary;
(3) The CKDLF unit will not cause or
contribute to significant degradation of
wetlands. The integrity of the CKDLF
unit and its ability to protect ecological
resources must be demonstrated by
addressing the following factors:
(i) Erosion, stability, and migration
potential of native wetland soils, muds
and deposits used to support the CKDLF
unit;
(ii) Erosion, stability, and migration
potential of dredged and fill materials
used to support the CKDLF unit;
(iii) The volume and chemical nature
of the waste managed in the CKDLF
unit;
(iv) Impacts on fish, wildlife, and
other aquatic resources and their habitat
from release of the solid waste;
(v) The potential effects of
catastrophic release of waste to the
wetland and the resulting impacts on
the environment; and
(vi) Any additional factors, as
necessary, to demonstrate that
ecological resources in the wetland are
sufficiently protected.
(4) To the extent required under
section 404 of the Clean Water Act or
applicable State wetlands laws, steps
have been taken to attempt to achieve
no net loss of wetlands (as defined by
acreage and function) by first avoiding
impacts to wetlands to the maximum
extent practicable as required by
paragraph (a)(l) of this Section, then
minimizing unavoidable impacts to the
maximum extent practicable, and finally
offsetting remaining unavoidable
wetland impacts through all appropriate
and practicable compensatory
mitigation actions (e.g., restoration of
existing degraded wetlands or creation
of man-made wetlands); and (5)
Sufficient information is available to
make a reasonable determination with
respect to these demonstrations.
(b) For purposes of this section,
wetlands means those areas that are
defined in 40 CFR 232.2(r).
(c) Nothing in this section affects the
applicability of any other statute or
regulation affecting management of CKD
in wetlands, including the permitting
requirements under section 404 of the
Clean Water Act. .
§259.13 Fault areas.
(a) CKD shall not be managed in a
CKDLF unit located within 200 feet (60
meters) of a fault that has had
displacement in Holocene time unless a
demonstration is made to the EPA
Regional Administrator that an
alternative setback distance of less than
200 feet (60 meters) will prevent damage
to the structural integrity of the CKDLF
unit and will be protective of human
health and the environment.
(b) For the purposes of this section:
(1) Fault means a fracture or a zone
of fractures in any material along which
strata on one side have been displaced
with respect to that on the other side.
(2) Displacement means the relative
movement of any two sides of a fault
measured in any direction.
(3) Holocene means the most recent
epoch of the Quaternary period,
extending from the end of the
Pleistocene Epoch to the present.
§ 259.14 Seismic impact zones.
(a) CKD shall not be managed in
CKDLF units located in seismic impact
zones, unless a demonstration is made
to the EPA Regional Administrator that
all containment structures, including
liners, leachate collection systems, and
surface water control systems, are
designed to resist the maximum
horizontal acceleration in lithified earth
material for the site. The person
managing CKD waste must place the
demonstration in the operating record
and notify the EPA Regional
Administrator that it has been placed in
the operating record.
(b) For the purposes of this Section:
(1) Seismic impact zone means an
area with a ten percent or greater
probability that the maximum
horizontal acceleration in lithified earth
material, expressed as a percentage of
the earth's gravitational pull (g), will
exceed O.lOg (i.e., 98.0 centimeters per
second per second) in 250 years.
(2) Maximum horizontal acceleration
in lithified earth material means the
maximum expected horizontal
acceleration depicted on a seismic
hazard map, with a 90 percent or greater
probability that the acceleration will not
be exceeded in 250 years, or the
maximum expected horizontal
acceleration based on a site-specific
seismic risk assessment.
(3) Lithified earth material means all
rock, including all naturally occurring
and naturally formed aggregates or
masses of minerals or small particles of
older rock that formed by crystallization
of magma or by induration of loose
sediments. This term does not include
man-made materials, such as fill,
concrete, and asphalt, or unconsolidated
earth materials, soil, or regolith lying at
or near the earth surface.
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§ 259.15 Unstable areas.
(a) CKD shall not be managed in
CKDLF units located in an unstable area
unless a demonstration is made to the
EPA Regional Administrator that
engineering measures have been
incorporated into the CKDLF unit's -
design to ensure that the integrity of the
structural components of the CKDLF
unit will riot be disrupted. The person
managing CKD waste must place the
demonstration in the operating record
and notify the EPA Regional
Administrator that it has been placed in
the operating record. The following
factors, at a minimum, must be
considered when determining whether
an area is unstable:
(1) On-site or local soil conditions
that may result in significant differential
settling;
(2) On-site or local geologic or
geomorphologic features; and
(3) On-site or local human-made
features or events (both surface and
subsurface).
(b) For purposes of this Section:
(1) Unstable area means a location
that is susceptible to natural or human-
induced events or forces capable of
impairing the integrity of some or all of
the landfill structural components
responsible for preventing releases from
a landfill. Unstable areas can include
poor foundation conditions, areas
susceptible to mass movements, and
karst terrains.
(2) .Structural components means
liners, leachate collection systems, final
covers, run-on/run-off systems, and any
other component used in the
construction and operation of the
CKDLF that is necessary for protection
of human health and the environment.
(3) Poor foundation conditions means
those areas where features exist which
indicate that a natural or human-
induced event may result in inadequate
foundation support for the structural
components of a CKDLF unit.
(4) Areas susceptible to mass
movement means those areas of
influence (i.e., areas characterized as
having an active or substantial
possibility of mass movement) where
the movement of earth material at,
beneath, or adjacent to the CKDLF unit,
because of natural or human-induced
events, results in the downslope
transport of soil and rock material by
means of gravitational influence. Areas
of mass movement include, but are not
limited to, landslides, avalanches,
debris slides and flows, soil fluction
block sliding, and rock fall.
§259.16 Karst terrains.
(a) CKD shall not be managed in
CKDLF units located in karst terrain
unless a demonstration is made to the
EPA Regional Administrator that
engineering me|isures have been -ft
incorporated into the CKDLF unit's
design to ensure that the integrity of the
structural components of the CKDLF
unit will not be disrupted. The person
managing CKD waste must place the
demonstration in the operating record
and notify the EPA Regional
Administrator that it has been placed in
the operating record. The following
factors, at a minimum, must be
considered when determining whether a
terrain is karstic:
(1) On-site or local geologic or
geomorphologic features;
(2) On-site or local soil conditions
that may result in significant differential
settling, collapse, or puncture of a
landfill liner;
(3) On-site hydrology, including the
character and direction of ground-water
flow and points of discharge for the
karst ground-water basin the facility
may affect; and
(4) On-site or local human-made
features or events (both surface and
subsurface).
ft") F°r purposes of this Section:
(1) Karst terrains means areas where
karst landscape, with its characteristic
hydrogeology and/or landforms are
developed. In karst terrain, ground-
water flow generally occurs through an
open system with both diffuse and
conduit flow end member components,
and typically has rapid ground-water
flow velocities which exceed Darcian
flow velocities. Composed of limestone,
dolomite, gypsum and other soluble
rock, karst terrain typically has well
developed secondary porosity enhanced
by dissolution. Landforms found in
karst terrain include, but are not limited
to, sinkholes, sinking streams, caves
springs and blind valleys. Karst terrains
always include one or more springs for
each ground-water basin, and
underground streams except where
ground-water flow is diffuse or the host
rock has megaporosity.
(2) Structural components means
liners, leachate collection systems, final
covers, run-on/run-off systems, and any
other component used in the
construction and operation of the
CKDLF that is necessary for protection
of human health and the environment.
(3) Conduit flow means nonlinear to '
turbulent ground-water flow through an
integrated system of conduits which
behave hydraulically as a system of
pipes. Conduit flow is typical of ground-
water flow through thick, massive
soluble rock such as limestone, where
ground water is concentrated, flow is
rapid and specific discharges are high.
Turbulent conduit flow can be initiated
in fractures as thin as 5 to 10
millimeters.
(4) Darcian flow means ground-water
flow which follows Darcy's law, where
the specific discharge is proportional to
the hydraulic gradient. Darcian ground-
water flow is typically linear and
laminar, travels from IxlQ-utolx
102 centimeters per second, and is
characteristic of ground-water flow
through granular porous media.
(5) Diffuse flow means ground-water
flow which is laminar and slow (within
the range of Darcian flow velocities)
through a system of joints and bedding
planes that have had minimal solution
enlargement.
§259.17 Regulation of agricultural use.
CKD shall not be used for agricultural
purposes unless the CKD is mixed with
sewage sludge and subject to 40 CFR
Part 503 standards, or the waste meets
the following requirements:
(a) CKD must not contain the toxic
constituents arsenic, cadmium, lead,
and thallium in excess of the following
limits: arsenic—13 mg/kg, cadmium—
22 mg/kg, lead—1500 mg/kg, and
thallium—15 mg/kg.
(b) CKD must not contain chlorinated
dioxins and furans in excess of 40 parts
per trillion toxicity equivalent (TEQ)
(c) CKD destined for agricultural use
must be sampled and analyzed by the
generator prior to shipment for
agricultural use to determine whether
the waste has concentrations of toxic
constituents in excess of those
established in paragraphs (a) and (b) of
this section.
(d) For all CKD shipped for beneficial
agricultural use, the person generating
CKD waste shall place in the operating
record a notation listing the amount of
CKD shipped and a letter of certification
signed by a company representative
verifying compliance with the
provisions specified under paragraphs
(a) and (b) of this section.
(e) For purposes of this section,
agricultural use is defined as use of CKD
as an agricultural lime substitute for the
purpose of amending the soil to
optimize pH or to promote the growth
of crops or other foodstuffs. The Agency
restricts this definition of use to CKD
produced for use by the general public
and not for the exclusive use of the
owner or operator of the facility which
generates the CKD waste.
§§259.18-259.19 [Reserved]
Subpart C—Air Criteria
§ 259.20 Air criteria for tanks, containers
or buildings. '
(a) This section applies to cement kiln
dust waste placed in temporary storage.
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Such CKD must be covered or otherwise
managed to control wind dispersal of
dusts, or stored in tanks, containers or
buildings that meet the following
minimum standards:
(1) The tank, container, or building
should be an engineered structure with
a human-made floor, walls, and a roof
all of which prevent water from
reaching the stored CKD and are made
of non-earthen materials providing
structural support.
(2) The tank, container, or building
must be free standing and not a surface
impoundment (as defined in 40 CFR
257.2), be manufactured of a material
suitable for storage of its contents, and
meet appropriate specifications such as
those established by either ASTM, API,
or UL standards.
(b) For purposes of this section,
temporary storage means interim storage
of CKD designated for recycling, sale or
final disposal.
(c) Alternative measures for fugitive
dust control may be approved by the
EPA Regional Administrator if a
demonstration is made to the EPA
Regional Administrator that the
alternative measures are at least as
effective in controlling wind dispersal
of CKD as the minimum standards
defined in paragraph (a) of this section.
The person managing CKD waste must
place the demonstration in the operating
record and notify the EPA Regional
Administrator that it has been placed in
the operating record.
§259,21 Air criteria for trucks transporting
cement kiln dust
(a) CKD waste transported in trucks or
other vehicles must be covered or
otherwise managed to control wind
dispersal of dust.
(b) Alternative measures for fugitive
dust control may be approved by the
EPA Regional Administrator if a
demonstration is made to the EPA
Regional Administrator that the •
alternative measures are at least as
effective in controlling wind dispersal
of CKD as the standards defined in
paragraph (a) of this section. The person
managing CKD waste must place the
demonstration in the operating record
and notify the EPA Regional
Administrator that it has been placed in
the operating record.
§ 259.22 Air criteria for landfills.
(a) CKD disposed in all CKDLF units
must be managed in a manner that does
not violate any applicable requirements
developed under a State
Implementation Plan (SIP) approved or
promulgated by the Administrator
pursuant to section 110 of the Clean Air
Act, as amended.
(b) CKD must be disposed in CKDLF
units and expansions constructed so
that such CKD is:
(1) Covered or otherwise managed to
control wind dispersal of dust, or
(2) Emplaced as conditioned CKD to
control wind dispersal, and
(3) Covered with a sufficient thickness
of earthen material at the end of each
operating day, or at more frequent
intervals if necessary, except as
provided in paragraph (d) of this
section, to control blowing dust.
(c) For purposes of this section
conditioned CKD means cement kiln
dust that has been compacted in the
field at appropriate moisture content
using moderate to heavy equipment to
attain 95% of the standard Proctor
maximum dry density value according
to ASTM D 698 or D 1557 test methods.
(d) Alternative measures for fugitive
dust control may be approved by the
EPA Regional Administrator if a
demonstration is made to the EPA
Regional Administrator that the
alternative measures are at least as
effective in controlling wind dispersal
of CKD as the minimum standards
defined in paragraphs (a), (b), and (c) of
this section. The person managing CKD
waste must place the demonstration in
the operating record and notify the EPA
Regional Administrator that it has been
placed in the operating record.
§259.23 Recordkeeping requirements.
(a) An operating record of a CKDLF
unit must be retained at the facility and/
or in an alternative location approved
by the EPA Regional Administrator. The
following information must be recorded
in the operating record as it becomes
available:
(1) Any notification of violation
required under paragraph (c) of this
section;
(2) Any certification of compliance
required under paragraph (d) of this
section;
(3) Any location restriction
demonstration required under Subpart
B;
(4) Any CKDLF unit design
documentation;
(5) Any demonstration, certification, '
finding, monitoring, testing, or
analytical data required by Subpart E;
(6) Any demonstration, certification,
testing, or analytical data required by
§259.17(d);
(7) Any plans for selected remedies as
required by §259.47;
(8) Closure and post-closure care
plans and any monitoring, testing, or
analytical data as required by §§259.50
and 259.51; and
(9) Any cost estimates and financial
assurance documentation required by
Subpart G of this part G.
(b) The person managing CKD waste
must notify the EPA Regional
Administrator when the documents
from paragraph (a) of this section have
been placed or added to the operating
record, and all information contained in
the operating record must be made
available for inspection by the public at
all reasonable times, and furnished
upon request to the EPA Regional
Administrator.
(c) The person managing CKD waste
must notify the EPA Regional
Administrator, in a letter signed by
company management, whenever any
standard of this rule is violated.
(d) The person managing CKD waste
must submit a certification to the EPA
Regional Administrator, signed by
company management, once each year:
throughout the active life and post-
closure care period that a new or
existing CKDLF unit is in compliance
with the air criteria, ground-water
monitoring, and corrective action
provisions of subparts C and E of this
part; and throughout the active life of
the facility that all CKD managed on-site
or sent off-site for beneficial use is
disposed in compliance with all
applicable provisions of this part. The
certification must also certify that all
records from paragraph (a) of this
section are properly maintained and
available to the public in accordance
with the provisions of paragraph (b) of
this section.
(e) The EPA Regional Administrator
can set alternative schedules for
recordkeeping and notification
requirements as specified in paragraphs
(a), (b), (c), (d) and (e) of this section.
§§259.24-259.29 [Reserved]
Subpart D—Design Criteria
§259.30 Design criteria.
(a) Prior to construction of a CKDLF
unit in carbonate terrain, a karst ground-
water investigation must be conducted
to define the direction of ground-water
flow and points of discharge for the
karst ground-water basin (s) the facility
may affect. The karst ground-water
investigation shall include, but not be
limited to, a karst inventory and a dye
tracer study to identify springs which
are hydrolbgically related to the CKDLF
unit. The investigation must be certified
by a qualified ground-water scientist
and approved by the EPA Regional
Administrator.
(b) The requirement for a karst
ground-water investigation under this
part may be suspended by the EPA
Regional Administrator for a CKDLF
unit if a demonstration is made that
there is no potential for migration of
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Federal Register/Vol. 64, No. 161/Friday. August'20, 1999/Proposed Rules
45683
hazardous constituents from that
CKDLF unit to the uppermost aquifer (as
defined in §259.2) during the active life
of the unit and the post-closure care
period. This demonstration must be
certified by a qualified ground-water
.scientist and approved by the EPA
Regional Administrator, and must be
based upon:
(1) Site-specific field collected
measurements, sampling and analysis of
physical, chemical, and biological
processes affecting contaminant fate and
transport, and
(2) Contaminant fate and transport
predictions that maximize contaminant
migration and consider impacts on
human health and environment.
(c) CKD must be managed in CKDLF
units and lateral expansions
constructed:
(1) In accordance with a design which
ensures that the concentration values
listed in Table 1 of this section shall not
be exceeded in the uppermost aquifer at
the relevant point of compliance (POC),
as specified under paragraph (d) of this
section, or
(2) With a composite liner, as defined
in paragraph (d) of this section and a
leachate collection system that is
designed and constructed to maintain
less than a 30 cm depth of leachate over
the liner.
(d) For purposes of this Section,
composite liner means a system
consisting of two components: the
upper component must consist of a
minimum 30 mil flexible membrane
liner (FML), and the lower component
must consist of at least a two-foot layer
of compacted soil with a hydraulic
conductivity of no more than lxlOE~7
cm/sec. FML components consisting of
high density polyethylene (HDPE) shall
be at least 60 mil thick. The FML
component must be installed in direct
and uniform contact with the
compacted soil component.
(e) When designing a CKDLF unit that
complies with paragraph (c)(l) of this
section, the following factors, at a
minimum, must be considered:
(1) The hydrologic characteristics of
the facility and surrounding land,
especially the presence of karst terrain;
(2) The climatic factors of the area;
and
(3) The volume and physical and
chemical characteristics of the leachate
(fj The relevant POC shall be no more
than 150 meters from the waste
management unit boundary and shall be
located on land owned by the owner of
the CKDLF unit. In determining the
relevant POC, the following factors shall
be considered:
(1) The hydrogeologic characteristics
of the facility and surrounding land;
(2) The volume and physical and
chemical characteristics of the leachate;
(3) The quantity, quality, and
direction of flow of ground water;
(4) The proximity and withdrawal rate
of the ground-water users;
(5) The availability of alternative
drinking water supplies;
(6) The existing quality of the ground
water, including other sources of
contamination and their cumulative
impacts on the ground water, and
whether the ground water is currently
used or reasonably expected to be used
for drinking water; and
(7) Public health, safety, and welfare
effects.
Table 1 .—Concentration Limits for
Metals in the Uppermost Aquifer
Chemical
Antimony ....
Arsenic
Barium
Beryllium
Cadmium
Chromium (total)
Lead
Mercury
Selenium ,
Silver
Thallium
MCL (mg/l)
o nnfi
n n^
2 A
n nfiA
01
n nc
0.002
EPA Action level.
b Federal Secondary Drinking Water MCL.
(g) The person managing CKD waste
must notify the EPA Regional
Administrator when the documents
from paragraph (a) of this section have
been placed or added to the operating
record, and all information contained in
the operating record must be made
available for inspection by the public at
all reasonable times, and furnished
upon request to the EPA Regional
Administrator.
(h) Alternative CKDLF unit designs
may be approved by the EPA Regional
Administrator if a demonstration is
made that the alternative unit designs
there is no potential for migration of
hazardous constituents from that
CKDLF unit to the uppermost aquifer (as
defined in §259.2) during the active life
of the unit and the post-closure care
period. This demonstration must be
certified by a qualified ground-water
scientist and approved by the EPA
Regional Administrator, and must be
based upon:
(1) Site-specific field collected
measurements, sampling, and analysis
of physical, chemical, and biological
processes affecting contaminant fate and
transport, and
(2) Contaminant fate and transport
predictions that maximize contaminant
migration and consider impacts on
human health and the environment.
(c) Persons managing CKD waste in
CKDLF units must comply with the
ground-water monitoring requirements
of this part according to the followine
schedule:
(1) Existing CKDLF units must be in
compliance with the ground-water
monitoring requirements specified in
§§259.41 through 259.45 by two years
after the effective date of the rule;
(2) New CKDLF units and expansions
of existing CKDLF units must be in
compliance with the ground-water
monitoring requirements specified in
§§259.41 through 259.45 before cement
kiln dust waste can be placed in the
unit.
(d) The person managing CKD waste
must notify the EPA Regional
Administrator once each year
throughout the active life and post-
closure care period that a new or
existing CKDLF unit is in compliance
with the ground-water monitoring and
corrective action provisions of this
Subpart.
(e) Once established at a CKDLF unit
ground-water monitoring shall be
conducted throughout the active life
. .„_...^ «,„,. vjcoigiia <-WIIIULH,LCU uiruugnoui me active life
protect ground water without presenting and post-closure care period of that
a threat to human health and the CKDLF unit as specified in §259 51
environment. tei ,, , "is^oa.oi.
(i) For the purposes of this subpart a
§§259.31-259.39 [Reserved] qualified ground- water scientist is a
scientist or engineer who has received a
buopart E—Ground-Water Monitoring baccalaureate or post-graduate deeree in
and Correntiva A>>fi<->n tKo «ot,.,.,i „„* ° . 5 .
and Corrective Action
§259.40 Applicability.
(a) The requirements in this part
apply to all new and existing CKDLF
units, except as provided in paragraph
(b) of this section.
(b) Ground-water monitoring
requirements under §§259.41 through
259.45 may be suspended by the EPA
Regional Administrator for a CKDLF
unit if a demonstration is made that -
the natural sciences or engineering and
has sufficient training and experience in
groundwater hydrology and related
fields as may be demonstrated by State
registration, professional certifications,
or completion of accredited university
programs that enable that individual to
make sound professional judgements
regarding ground-water monitoring,
contaminant fate and transport, anci
corrective action, particularly as they
relate to karst terrain*
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Federal Register/Vol. 64, No. 161/Friday, August 20, 1999/Proposed Rules
§259.41 Ground-water monitoring
systems.
(a) A ground-water monitoring system
must be installed that consists of a
sufficient number of wells and/or
springs, installed at appropriate
locations and depths, to yield ground-
water samples from the uppermost
aquifer (as defined in §259.2). The
ground-water monitoring system must
include at a minimum one up-gradient
and three down-gradient wells. Ground-
water samples must:
(1) Represent the quality of
background ground water that has not
been affected by leakage from the unit -
being monitored. A determination of
background quality may include
sampling of wells and/or springs that
are not hydraulically upgradient of the
waste management area where:
(i) Hydrogeologic conditions do not
allow the person managing CKD waste
to determine what wells and springs are
hydraulically upgradient; or
(ii) Sampling at other wells and
springs will provide an indication of
background ground-water quality that is
as representative or more representative
than that provided by the upgradient
wells and springs; and
(2) Represent the quality of ground
water passing the relevant POC. The
downgradient monitoring system must
be installed at the relevant POC (or at
the waste management unit boundary)
that ensures detection of ground-water
contamination in the uppermost aquifer.
When physical obstacles preclude
installation of ground-water monitoring
wells at the relevant POC at existing
units, the down-gradient monitoring
system may be installed at the closest
practicable distance hydraulically
down-gradient from, the relevant POC
that ensures detection of ground-water
contamination in the uppermost aquifer.
(b) A multi-unit ground-water
monitoring system may be installed
instead of separate ground-water
monitoring systems for each CKDLF
unit when the facility has several units,
provided the multi-unit ground-water
monitoring system meets the
requirement of paragraph (a) of this
section and will be as protective of
human health and the environment as
individual monitoring systems for each
CKDLF unit, based on the following
factors:
(1) Number, spacing, and orientation
of the CKDLF units;
(2) Hydrogeologic setting;
(3) Site history; and
(4) Engineering design of the CKDLF
units.
(c) Monitoring wells must be cased in
a manner that maintains the integrity of
the monitoring well bore hole. This
casing must be screened or perforated
and packed with gravel or sand, where
necessary, to enable collection of
ground-water samples. The annular
space (i.e., the space between the bore
hole and well casing) above the
sampling depth must be sealed to
prevent contamination of samples and
the ground water.
(1) The person managing CKD waste
must notify the EPA Regional
Administrator that the design,
installation, development, and
decommission of any monitoring wells,
piezometers and other measurement,
sampling, and analytical devices
documentation has been placed in the
operating record; and
(2) The monitoring wells, springs,
piezometers, and other measurement,
sampling, and analytical devices must
be operated and maintained so that they
perform to design specifications
throughout the life of the monitoring
program.
(d) The number, spacing, and depths
of monitoring systems shall be:
(1) Determined based upon site-
specific technical information that must
include thorough characterization of:
(i) Aquifer thickness, ground-water
flow rate, ground-water flow direction
including seasonal and temporal
fluctuations in ground-water flow; and
(ii) Saturated and unsaturated
geologic units and fill materials
overlying the uppermost aquifer,
materials comprising the uppermost
aquifer, and materials comprising the
confining unit defining the lower
boundary of the uppermost aquifer;
including, but not limited to:
thicknesses, stratigraphy, lithology,
hydraulic conductivities, porosities and
effective porosities.
(2) Certified by a qualified ground-
water scientist or approved by the EPA
Regional Administrator. Within 14 days
of this certification, the person
managing CKD waste must notify the
EPA Regional Administrator that the
certification has been placed in the
operating record.
§259.42 [Reserved]
§ 259.43 Ground-water sampling and
analysis requirements.
(a) The ground-water monitoring
program must include consistent
sampling and analysis procedures that
are designed to ensure monitoring
results that provide an accurate
representation of ground-water quality
at the background and downgradient
wells (and at springs respective to site
hydrogeology) installed in compliance
with § 259.41 (a). The person managing
CKD waste must notify the EPA -
Regional Administrator that the
sampling and analysis program
documentation has been placed in the
operating record and the program must
include procedures and techniques for:
(1) Sample collection;
(2) Sample preservation and shipment;
(3) Analytical procedures;
(4) Chain of custody control; and
(5) Quality assurance and quality
control.
(b) The ground-water monitoring
program must include sampling and
analytical methods that are appropriate
for ground-water sampling and that
accurately measure hazardous
constituents and other monitoring
parameters in ground-water samples.
Ground-water samples shall not be
field-filtered prior to laboratory
analysis.
(c) The sampling procedures and
frequency must ensure protection of
human health and the environment.
(d) Ground-water elevations must be
measured in each well immediately
prior to purging, each time ground water
is sampled. The rate and direction of
ground-water flow must be determined
each time ground water is sampled.
Ground-water elevations in wells which
monitor the same waste management
area must be measured within a period
of time short enough to avoid temporal
variations in ground-water flow which
could preclude accurate determination
of ground-water flow rate and direction.
(e) The background ground-water
quality must be established in a
hydraulically upgradient or background
well(s) (and spring(s) if appropriate) for
each of the monitoring parameters or
constituents required in the particular
ground-water monitoring program that
applies to the CKDLF unit, as
determined under §259.44(a) or
§259.45(a). Background ground-water
quality may be established at wells (and
springs if appropriate) that are not
located hydraulically upgradient from
the CKDLF unit if it meets the
requirements of § 259.41 (a) (1).
(f) The number of samples collected to
establish ground-water quality data
must be consistent with the appropriate
statistical procedures determined
pursuant to paragraph (g) of this section.
The sampling procedures shall be those
specified under § 259.44 (b) for detection
monitoring, § 259.45 (b) and (d) for
assessment monitoring, and §259.46(b)
for corrective action.
(g) One of the following statistical
methods to be used in evaluating
ground-water monitoring data must be
specified in the operating record for
each hazardous constituent. The
statistical test chosen shall be
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Federal Register/Vol. 64, No. .161 /Friday, August 20, 1999/Proposed Rules
45685
conducted separately for each
hazardous constituent in each well (and
spring if appropriate).
(1) A parametric analysis of variance
(ANOVA) followed by multiple
comparisons procedures to identify
statistically significant evidence of
contamination. The method must
include estimation and testing of the
contrasts between each compliance
well's mean and the background mean
levels for each constituent.
(2) An analysis of variance (ANOVA)
based on ranks followed by multiple
comparisons procedures to identify
statistically significant evidence of
contamination. The method must
include estimation and testing of the
contrasts between each compliance
well's-median and the background
median levels for each constituent.
(3) A tolerance or prediction interval
procedure in which an interval for each
• constituent is established from the
distribution of the background data, and
the level of each constituent in each
compliance well is compared to the
upper tolerance or prediction limit.
(4) A control chart approach that gives
control limits for each constituent.
(5) Another statistical test method that
meets the performance standards of
paragraph (h) of this section. The person
managing CKD waste must place a
justification for this alternative in the
operating record and notify the EPA
Regional Administrator of the use of this
alternative test. The justification must
demonstrate that the alternative method
meets the performance standards of
paragraph (h) of this section.
(h) Any statistical method chosen
under paragraph (g) of this section shall
comply with the following performance
standards, as appropriate:
(1) The statistical method used to
evaluate ground-water monitoring data
shall be appropriate for the distribution
of chemical parameters or hazardous
constituents. If the distribution of the
chemical parameters or hazardous
constituents is shown by the person
managing CKD waste to be
inappropriate for a normal theory test,
then the data should be transformed or
a distribution-free theory test should be
used. If the distributions for the
constituents differ, more than one
statistical method may be needed.
(2) If an individual well comparison
procedure is used to compare an
individual compliance well constituent
concentration with background
constituent concentrations or a ground-
water protection standard, the test shall
be done at a Type I error level no less
than 0.01 for each testing period. If a
multiple comparisons procedure is
used, the Type I experimental error rate
for each testing period shall be no less
than 0.05; however, the Type I error of
no less than 0.01 for individual well
comparisons must be maintained! This
performance standard does not apply to
tolerance intervals, prediction intervals,
or control charts.
(3) If a control chart approach is used
to evaluate ground-water monitoring
data, the specific type of control chart
and its associated parameter values
shall be protective of human health and
the environment. The parameters shall
be determined after considering the
number of samples in the background
data base, the data distribution, and the
range of the concentration values for
each constituent of concern.
(4) If a tolerance interval or a
predictional interval is used to evaluate
'ground-water monitoring data, the
levels of confidence and, for tolerance
intervals, the percentage of the
population that the interval must
contain shall be protective of human
health and the environment. These
parameters shall be determined after
considering the number of samples in
the background data base, the data
distribution, and the range of the
concentration values for each
constituent of concern.
(5) The statistical method shall
account for data below the limit of
detection with one or more statistical
procedures that are protective of human
health and the environment. Any
practical quantitation limit (pql) that is
used in the statistical method shall be
the lowest concentration level that can
be reliably achieved within specified
limits of precision and accuracy during
routine laboratory operating conditions
that are available to the facility.
(6) If necessary, the statistical method
shall include procedures to control or
correct for seasonal and spatial
variability as well as temporal
correlation in the data.
(i) The person managing CKD waste
must determine whether or not there is
a statistically significant increase over
background values for each parameter or
constituent required in the particular
ground-water monitoring program that
applies to the CKDLF unit, as
determined under §259.44 (a) or
§259.45 (a).
(1) In determining whether a
statistically significant increase has
occurred, the person managing CKD
waste must compare the ground-water
quality of each parameter or constituent
at each monitoring well (and spring if
appropriate) designated pursuant to
§ 259.41 (a) (2) to the background value of
that constituent, according to the
statistical procedures and performance
standards specified under paragraphs (g)
and (h) of this section.
(2) Within 14 days after completing
sampling and analysis, the person
managing CKD waste must determine
whether there has been a statistically
significant increase over background at
each monitoring well and spring. •
§259.44 Detection monitoring program.
(a) Detection monitoring is required at
CKDLF units at all ground-water
monitoring wells (and springs if
appropriate) defined under §§259.41
(a) (1) and (a) (2). At a minimum, a
detection monitoring program must
include the monitoring for the
constituents listed in Appendix I to this
part.
(1) The EPA Regional Administrator
may delete any of the Appendix I of this
part monitoring parameters for a CKDLF
unit if it can be shown that the removed
constituents are not reasonably expected
to be in, mobilized by, or derived from
the CKD contained in the unit.
(2) The EPA Regional Administrator
may establish an alternative list of
inorganic indicator parameters for a
CKDLF unit, in lieu of some or all of the
heavy metals, if the alternative
parameters provide a reliable indication
of inorganic releases from the CKDLF
unit to the ground water. In determining
alternative parameters, the EPA
Regional Administrator shall consider
the following factors:
(i) The types, quantities, and
concentrations of constituents in wastes
managed at the CKDLF unit;
(ii) The mobility, stability, and
persistence of waste constituents or
their reaction products in the
unsaturated zone beneath the CKDLF
unit;
(iii) The detectability of indicator
parameters, waste constituents, and
reaction products in the ground water;
and
(iv) The concentration or values and
coefficients of variation of monitoring
parameters or constituents in the
ground-water background.
(b) The monitoring frequency for all
constituents listed in Appendix I to this
part, or in the alternative list approved
in accordance with paragraph (a) (2) of
this section, shall be at least semiannual
during the active life of the facility
(including closure) and the post-closure
period. A minimum of four independent
samples from each background and
downgradient well (and spring if
appropriate) must be collected and
analyzed for the constituents listed in
Appendix I of this part, or the
alternative list approved in accordance
with paragraph (a) (2) of this section,
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Federal Register/Vol. 64, No. 161/Friday, August 20, 1999/Proposed Rules
during the first semiannual sampling
event.
(c) At least one sample from each
background and downgradient well (and
spring if appropriate) must be collected
and analyzed during subsequent
semiannual sampling events. The EPA
Regional Administrator may specify an
appropriate alternative frequency for
repeated sampling and analysis for
constituents listed in Appendix I of this
part, or the alternative list approved in
accordance with paragraph (a) (2) of this
Section, during the active life (including
closure) and the post-closure care
period. The alternative frequency during
the active life (including closure) shall
be no less than annual. The alternative
frequency shall be based on
consideration of the following factors:
(1) Lithology of the aquifer and
unsaturated zone;
(2) Hydraulic conductivity of the aquifer
and unsaturated zone;
(3) Ground-water flow rates;
(4) Minimum distance between
upgradient edge of the CKDLF unit
and downgradient monitoring well
screen (minimum distance of travel);
(5) Storm hydrograph of springs, if
appropriate; and
(6) Resource value of the aquifer.
(d) If the person managing CKD waste
determines, pursuant to §259.43(g), that
there is a statistically significant
increase over background for one or
more of the constituents listed in
Appendix I to this part at any
monitoring well (or spring if
appropriate) at the boundary specified
under § 259.41 (a) (2), the person
managing CKD waste:
(1) Must, within 14 days of this
finding, place a notice in the operating
record indicating which constituents
have shown statistically significant
changes from background levels, and
notify the EPA Regional Administrator
of this finding that this notice was
placed in the operating record; and
(2) Must establish an assessment
monitoring program meeting the
requirements of §259.45 within 90 days,
except as provided for in paragraph
(c)(3) of this section.
(3) The owner/operator may
demonstrate that a source other than a
CKDLF unit caused the contamination
or that the statistically significant
increase resulted from error in
sampling, analysis, statistical
evaluation, or natural variation in
ground-water quality. A report
documenting this demonstration must
be certified by a qualified ground-water
scientist and be placed in the operating
record. If a successful demonstration is
made and documented, the person
managing CKD waste may continue
detection monitoring as specified in this
Section. If, after 90 days, a successful
demonstration is not made, the person
managing CKD waste must initiate an
assessment monitoring program as
required in §259.45.
§259.45 Assessment monitoring program.
(a) Assessment monitoring is required
whenever a statistically significant
increase over background has been
detected for one or more of the
constituents listed in the Appendix I of
this part.
(b) Within 90 days of triggering an
assessment monitoring program, and
annually thereafter, the person
managing CKD waste must sample and
analyze the ground water for the
following hazardous metal constituents
identified in Appendix VIII of Part 261
of this chapter: antimony, arsenic,
barium, beryllium, cadmium, chromium
(total), lead, mercury, nickel, selenium,
silver, and thallium. A minimum of one
sample from each downgradient well
(and spring if appropriate) must be
collected and analyzed during each
sampling event. For any constituent
detected in the downgradient wells (and
springs if appropriate) as a result of the
metal constituent analysis of Appendix
VIII of Part 261 of this chapter, a
minimum of four independent samples
from each background and
downgradient well (and spring if
appropriate) must be collected and
analyzed to establish background for the
constituents. The EPA Regional
Administrator may specify an
appropriate subset of wells (and springs
if appropriate) to be sampled and
analyzed for metal constituents (as
listed in Appendix VIII of Part 261 of
this chapter) during assessment
monitoring. The EPA Regional
Administrator may delete any of the
metal constituent monitoring
parameters required by paragraph (b) of
this section for a CKDLF unit if it can
be shown that the removed constituents
are not reasonably expected to be in,
mobilized by, or derived from the waste
contained in the unit.
(c) The EPA Regional Administrator
may specify an appropriate alternate
frequency for repeated sampling and
analysis for the set of metal constituents
(as listed in Appendix VIII of Part 261
of this chapter) required by paragraph
(b) of this Section, during the active life
(including closure) and post-closure
care of the unit considering the
following factors:
(1) Lithology of the aquifer and
unsaturated zone;
(2) Hydraulic conductivity of the
aquifer and unsaturated zone;
(3) Ground-water flow rates;
(4) Minimum distance between
upgradient edge of the CKDLF unit and
downgradient monitoring well screen
(minimum distance of travel);
(5) Storm hydrograph of springs if
appropriate: and
(6) Resource value of the aquifer; and
(7) Nature (fate and transport) of any
constituents detected in response to this
Section.
(d) After obtaining the results from
the initial or subsequent sampling
events required in paragraph (b) of this
Section, the person managing CKD
waste must:
(1) Within 14 days, place a notice in
the operating record identifying the
metal constituents (as listed in
Appendix VIII of Part 261 of this
chapter) that have been detected and
notify the EPA Regional Administrator
of the identified constituents and that
this notice has been placed in the
operating record;
(2) Within 90 days, and on at least a
semiannual basis thereafter, resample
all wells (and springs if appropriate)
specified by §259.41 (a), conduct
analyses for all constituents in
Appendix I of this part, and for those
metal constituents in Appendix VIII of
Part 261 of this chapter that are detected
in response to paragraph (b) of this
Section, and record their concentrations
in the facility operating record. At least
one sample from each background and
downgradient well (and spring if
appropriate) must be collected and
analyzed during these sampling events.
(3) Establish background
concentrations for any constituents
detected pursuant to paragraph (b) or
(d)(2) of this Section; and
(4) Establish ground-water protection
standards for all constituents detected
pursuant to paragraph (b) or (d) of this
Section. The ground-water protection
standards shall be established in
accordance with paragraph (h) of this
Section.
(e) If the concentrations of all metal
constituents (as listed in Appendix VIE
of Part 261 of this chapter) are shown
to be at or below background values,
using the statistical procedures in
§ 259.43(g), for two consecutive
sampling events, the person managing
CKD waste must notify the EPA
Regional Administrator of this finding
prior to returning to detection
monitoring.
(f) If the concentrations of any metal
constituents (as listed in Appendix VIII
of Part 261 of this chapter) are above
background values, but all
concentrations are below the ground-
water protection standard established
under paragraph (h) of this Section,
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45687
using the statistical procedures in
§ 259.43 (g), the person managing CKD
waste must continue assessment
monitoring in accordance with this
Section.
(g) If one or more metal constituents
(as listed in Appendix VIII of Part 261
of this chapter) are detected at
statistically significant levels above the
ground-water protection standard
established under paragraph (h) of this
section in any sampling event, the
person managing CKD waste must,
within 14 days of this finding, place a
notice in the operating record
identifying the metal constituents that
have exceeded the ground-water
protection standard and notify the EPA
Regional Administrator and all
appropriate local government officials
that the notice has been placed in the
operating record. The person managing
CKD waste must also:
(1) (i) Characterize the nature and
extent of the release by installing
additional monitoring wells as
necessary;
(ii) Install at least one additional
monitoring well at the facility boundary
in the direction of contaminant
migration and sample this well in
accordance with paragraph (d)(2) of this
Section;
(iii) Notify all persons who own the
land or reside on the land that directly
overlies any part of the plume of
contamination if contaminants have
migrated off-site if indicated by
sampling of wells (and springs if
appropriate) in accordance with
paragraph (g)(l) of this section; and
(iv) Initiate an assessment of
corrective measures as required by
§ 259.46 within 90 days; or
(2) May demonstrate that a source
other than a CKDLF unit caused the
contamination, or that the SSI increase
resulted from error in sampling,
analysis, statistical evaluation, or
natural variation in ground-water
quality. A report documenting this
demonstration must be certified by a
qualified ground-water scientist and
placed in the operating record. If a
successful demonstration is made, the
person managing CKD waste must
continue monitoring in accordance with
the assessment monitoring program
pursuant to this section, and may return
to detection monitoring if the metal
constituents (as listed in Appendix VIII
of part 261 of this chapter) are at or
below background as specified in
paragraph (e) of this section. Until a
successful demonstration is made, the
person managing CKD waste must
comply with paragraph (g) of this
section including initiating an
assessment of corrective measures.
(h) The person managing CKD waste
must establish a ground-water
protection standard for each.metal
constituent (aslisted in Appendix VIII
of Part 261 of this chapter) detected in
the ground water. The ground-water
protection standard shall be:
(1) For constituents for which a
maximum contaminant level (MCL) has
been promulgated under section 1412 of
the Safe Drinking Water Act (codified)
under 40 CFR Part 141, the MCL for that
constituent;
(2) For constituents for which MCLs
have not been promulgated, the
background concentration for the
constituent established from wells in
accordance with § 259.41 (a) (1); or
(3) For constituents for which the
background level is higher than the
MCL identified under paragraph (h) (1)
of this section or health based levels
identified under paragraph (i)(l) of this
section, the background concentration.
(i) The Director of an approved State
may establish an alternative ground-
water protection standard for
constituents for which MCLs have not
been established. These ground-water
protection standards shall be
appropriate health based levels that
satisfy the following criteria:
(1) The level is derived in a manner
consistent with Agency guidelines for
assessing the health risks of
environmental pollutants;
(2) The level is based on scientifically
valid studies conducted in accordance
with the Toxic Substances Control Act
Good Laboratory Practice Standards (40
CFR Part 792) or equivalent;
(3) For carcinogens, the level
represents a concentration associated
with an excess lifetime cancer risk level
(due to continuous lifetime exposure)
with the lxlO~4 to lxlO~6 range; and
(4) For systemic toxicants, the level
represents a concentration to which the
human population (including sensitive
subgroups) could be exposed to on a
daily basis that is likely to be without
appreciable risk of deleterious effects
during a lifetime. For purposes of this
subpart, systemic toxicants include
toxic chemicals that cause effects other
than cancer or mutations.
0") In establishing ground-water
protection standards under paragraph (i)
of this section, the Director of an
approved State may consider the
following:
(1) Multiple contaminants in the
ground water;
(2) Exposure threats to sensitive
environmental receptors; and
(3) Other site-specific exposure or
potential exposure to ground water.
§259.46 Assessment of corrective
measures.
(a) Within 90 days of finding that any
of the metal constituents listed in
Appendix VIII of Part 261 of this
chapter have been detected at a
statistically significant-level exceeding
the ground-water protection standards
defined under §259.45(h), the person
managing CKD waste must initiate an
assessment of corrective measures. Such
an assessment must be completed
within 90 days, or within an alternative
period of time decided by the EPA
Regional Administrator.
(b) The person managing CKD waste
must continue to monitor in accordance
with the assessment monitoring
program as specified in § 259.45.
(c) The assessment shall include an
analysis of the effectiveness of potential
corrective measures in meeting all of the
requirements and objectives of the
remedy as described under §259.47,
addressing at least the following:
(1) The performance, reliability, ease
of implementation, and potential
impacts of appropriate potential
remedies, including safety impacts,
cross-media impacts, and control of
exposure to any residual contamination;
(2) The time required to begin and
complete the remedy;
(3) The costs of remedy
implementation; and
(4) The institutional requirements
such as State or local permit
requirements or other environmental or
public health requirements that may
substantially affect implementation of
the remedies.
(d) The person managing CKD waste
must discuss the results of the
corrective measures assessment, prior to
the selection of remedy, in a public
meeting with interested and affected
parties.
§259.47 Selection of remedy.
(a) Within 90 days of completing an
assessment of corrective measures
conducted under §259.46, the person
managing CKD waste must select a
remedy that, at a minimum, meets the
standards listed in paragraph (b) of this
section. Within 14 days of selecting a
remedy, the person managing CKD
waste must submit to the EPA Regional
Administrator a report describing the
selected remedy which demonstrates
how the remedy meets the standards in
paragraph (b) of this section. The report
must include a notification that the
owner and operator has placed a copy
of the report in the operating record.
(b) Remedies must:
(1) Be protective of human health and
the environment;
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(2) Attain the ground-water protection
standard as specified pursuant to
§259.45(h);
(3) Control the source(s) of releases so
as to reduce or eliminate, to the
maximum extent practicable, further
releases of metal constituents (as listed
in Appendix VIII of Part 261 of this
chapter) into the environment that may
pose a threat to human health or the
environment; and
(4) Comply with standards for
management of wastes as specified in
§259.48(d).
(c) In selecting a remedy that meets
the standards of paragraph (b) of this
section, the person managing CKD waste
shall consider the following evaluation
factors:
(1) The long- and short-term
effectiveness and protectiveness of the
potential remedies, along with the
degree of certainty that the remedy will
prove successful based on consideration
of the following:
(i) Magnitude of reduction of existing
risks;
(ii) Magnitude of residual risks in
terms of likelihood of further releases
due to waste remaining following
implementation of a remedy;
(Hi) The type and degree of long-term
management required, including
monitoring, operation, and
maintenance;
(iv) Short-term risks that might be
posed to the community, workers, or the
environment during implementation of
such a remedy, including potential
threats to human health and the
environment associated with
excavation, transportation, and
redisposal of containment;
(v) Time until full protection is
achieved;
(vi) Potential for exposure of humans
and environmental receptors to
remaining wastes, considering the
potential threat to human health and the
environment associated with
excavation, transportation, redisposal,
or containment;
(vii) Long-term reliability of the
engineering and institutional controls;
and
(viii) Potential need for replacement
of the remedy.
(2) The effectiveness of the remedy in
controlling the source to reduce further
releases based on consideration of the
following factors:
(i) The extent to which containment
practices will reduce further releases;
and
(ii) The extent to which treatment
technologies may be used.
(3) The ease or difficulty of
implementing a potential remedy(s)
based on consideration of the following
types of factors:
(i) Degree of difficulty associated with
constructing the technology;
(ii) Expected operational reliability of
the technologies;
(Hi) Need to coordinate with and
obtain necessary approvals and permits
from other agencies;
(iv) Availability of necessary
equipment and specialists; and
(v) Available capacity and location of
needed treatment, storage, and disposal
services.
(4) Practicable capability of the person
managing CKD waste, including a
consideration of the technical and
economic capability.
(5) The degree to which community
concerns are addressed by a potential
remedy (s).
(d) The person managing CKD waste
shall specify as part of the selected
remedy a schedule (s) for initiating and
completing remedial activities. Such a
schedule must require the initiation of
remedial activities within 90 days
taking into consideration the factors set
forth in paragraphs (d) (1) through (8) of
this section. The person managing CKD
waste must consider the following
factors in determining the schedule of
remedial activities:
(1) Extent and nature of
contamination;
(2) Practical capabilities of remedial
technologies in achieving compliance
with ground-water protection standards
established under §259.45 (g) or (h) and
other objectives of the remedy;
(3) Availability of treatment or
disposal capacity for wastes managed
during implementation of the remedy;
(4) Desirability of utilizing
technologies that are not currently
available, but which may offer
significant advantages over already
available technologies in terms of
effectiveness, reliability, safety, or
ability to achieve remedial objectives;
(5) Potential risks to human health
and the environment from exposure to
contamination prior to completion of
the remedy;
(6) Resource value of the aquifer
including:
(i) Current and future uses;
(ii) Proximity and withdrawal rate of
users;
(iii) Ground-water quantity and
quality;
(iv) The potential damage to wildlife,
crops, vegetation, and physical
structures caused by exposure to waste
constituents;
(v) The hydrogeologic characteristics
of the facility and surrounding land;
• (vi) Ground-water removal and
treatment costs; and
(vii) The cost and availability of
alternative water supplies.
(7) Other relevant factors.
(e) The EPA Regional Administrator
may determine an alternative period of
time for the person managing CKD
waste to initiate or complete remedial
activities pursuant to paragraph (d) of
this section.
(f) The EPA Regional Administrator
may determine that remediation of a
release of a constituent (as listed in
Appendix VIII of Part 261 of this
chapter) from a CKDLF unit is not
necessary if the person managing CKD
waste demonstrates to the satisfaction of
the EPA Regional Administrator that:
(1) The ground water is additionally
• contaminated by substances that have
originated from a source other than a
CKDLF unit and those substances are
present in concentrations such that
cleanup of the release from the CKDLF
unit would provide no significant
reduction in risk to actual or potential
receptors; or
(2) The constituent (s) is present in
ground water that:
(i) Is not currently or reasonably
expected to be a source of drinking
water; and
(ii) Is not hydraulically connected
with waters to which the hazardous
constituents are migrating or are likely
to migrate in a concentration (s) that
would exceed the ground-water
protection standards established under
§ 259.45(h); or
(3) Remediation of the release(s) is
technically impracticable; or
(4) Remediation results in
unacceptable cross-media impacts.
(g) This section shall not affect the
authority of the EPA Regional
Administrator to require the person
managing CKD waste to undertake
source control measures or other
measures that may be necessary to
eliminate or minimize further releases
to the ground water, to prevent exposure
to the ground water, or to remediate the
ground water to concentrations that are
technically practicable and significantly
reduce threats to human health or the
environment.
§ 259.48 Implementation of the corrective
action program.
(a) Based on the schedule established
under § 259.47(d) for initiation and
completion of remedial activities, the
owner/operator must:
(1) Establish and implement a
corrective action ground-water
monitoring program that:
(i) At a minimum, meets the
requirements of an assessment
monitoring program under §259.45;
(ii) Indicates the effectiveness of the
corrective action remedy; and
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(iii) Demonstrates compliance with
ground-water protection standards
pursuant to paragraph (e) of this section.
(2) Implement the corrective action
remedy selected under §259.47; and
(3) Take any interim measures
necessary to ensure the protection of
human health and the environment.
Interim measures should, to the greatest
extent practicable, be consistent with
the objectives of and contribute to the
performance of any remedy that may be
required pursuant to § 259.47. The
following factors must be considered by
a person managing CKD waste in
determining whether interim measures
are necessary:
(i) Time required to develop and
implement a final remedy;
(ii) Actual or potential exposure of
nearby populations or environmental
receptors to hazardous constituents;
(iii) Actual or potential contamination
of drinking water supplies or sensitive
ecosystems;
(iv) Further degradation of the ground
water that may occur if remedial action
is not initiated expeditiously;
(v) Weather conditions that may cause
hazardous constituents to migrate or be
released;
(vi) Potential for exposure to
hazardous constituents as a result of an
accident or failure of a container or
handling system; and
(vii) Other situations that may pose
threats to human health and the
environment.
(b) A person managing CKD waste
may determine, based on information
developed after implementation of the
remedy has begun or other information,
that compliance with requirements of
§ 259.47(b) are not being achieved
through the remedy selected. In such
cases, the person managing CKD waste
must implement other methods or
techniques that could practicably
achieve compliance with the
requirements, unless the person
managing CKD waste makes the
determination under paragraph (c) of
this section.
(c) If the person managing CKD waste
determines that compliance with
requirements under §259.47(b) cannot
be practically achieved with any
currently available methods, the person
managing CKD waste must:
(1) Obtain certification of a qualified
ground-water scientist or approval by
the EPA Regional Administrator that
compliance with requirements under
§ 259.47(b) cannot be practically
achieved with any currently available
methods;
(2) Implement alternate measures to
control exposure of humans or the
environment to residual contamination,
as necessary to protect human health
and the environment; and
(3) Implement alternate measures for
control of the sources of contamination,
or for removal or decontamination of
equipment, units, devices, or structures
that are:
(i) Technically practicable; and-
(ii) Consistent with the overall
objective of the remedy.
(4) Notify the EPA Regional
Administrator within 14 days that a
report justifying the alternative
measures prior to implementing the
alternative measures has been placed in
the operating record.
(d) All solid wastes that are managed
pursuant to a remedy required under
§ 259.47, or an interim measure required
under paragraph (a) (3) of this section,
shall be managed in a manner:
(1) That is protective of human health
and the environment; and
(2) That complies with applicable
RCRA requirements.
(e) Remedies selected pursuant to
§ 259.47 shall be considered complete
when:
(1) The person managing CKD waste
complies with the ground-water
protection standards established under
§§ 259.45(h) at all points within the
plume of contamination that lie beyond
the ground-water monitoring well (and
spring system if appropriate) established
under §259.41 (a).
(2) Compliance with the ground-water
protection standards established under
§ 259.45 (h) has been achieved by
demonstrating that concentrations of
metal constituents (as listed in
Appendix VIII of Part 261 of this
chapter) have not exceeded the ground-
water protection standards for a period
of three consecutive years using the
statistical procedures and performance
standards in §259.43 (g) and (h). The
EPA Regional Administrator may
specify an alternative length of time
during which the person managing CKD
waste must demonstrate that
concentrations of metal constituents (as
listed in Appendix VEI of Part 261 of
this chapter) have not exceeded the
ground-water protection standards
taking into consideration:
(i) Extent and concentration of the
release;
(ii) Behavior characteristics of the
hazardous constituents in the ground
water;
(iii) Accuracy of monitoring or
modeling techniques, including any
seasonal, meteorological, or other
environmental variabilities that may
affect the accuracy; and
(iv) Characteristics of the ground
water.
(3) All actions required to complete
the remedy have been satisfied.
(f) Upon completion of the remedy,
the person managing CKD waste must
notify the EPA Regional Administrator
within 14 days that a certification that
the remedy has been completed in
compliance with the requirements of
paragraph (e) of this section has been
placed in the operating record. The
certification must be signed by the
person managing CKD waste and by a
qualified ground-water scientist or
approved by the EPA Regional
Administrator.
(g) When, upon completion of the
certification, the person managing CKD
waste determines that the corrective
action remedy has been completed in
accordance with the requirements under
paragraph (e) of this section, the person
managing CKD waste shall be released
from the requirements for financial
assurance for corrective action under
§259.63.
§259.49 [Reserved]
Subpart F—Closure And Post-Closure
Care
§259.50 Closure criteria.
(a) A final cover system must be
installed at all CKDLF units that is
designed to minimize infiltration and
erosion. The final cover system must be
designed and constructed to:
(1) Have a saturated hydraulic
conductivity less than or equal to the
saturated hydraulic conductivity of any
bottom liner system or natural subsoils
present, or a saturated hydraulic
conductivity no greater than 1x10-5 cm/
sec, whichever is less, and
(2) Minimize infiltration through the
closed CKDLF by the use of an
infiltration layer that contains a
minimum 18-inches of earthen material,
and
(3) Minimize erosion of the final cover
by the use of an erosion layer that
contains a sufficient thickness of
earthen material that is capable of
sustaining native plant growth, and
(4) Minimize the disruption of the
final cover through a design that
accommodates settling and subsidence.
(b) The EPA Regional Administrator
may approve an alternative final cover
design that includes:
(1) An infiltration layer that achieves
an equivalent reduction in infiltration as
the infiltration layer specified in
paragraphs (a)(l) and (a) (2) of this
section, and
(2) An erosion layer that provides
equivalent protection from wind and
water erosion as the erosion layer
specified in paragraph (a) (3) of this
section.
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(c) The person managing CKD waste
must prepare a written closure plan that
describes the steps necessary to close all
CKDLF units at any point during their
active life in accordance with the cover
design requirements in paragraphs (a) or
(b) of this section, as applicable. The
closure plan, at a minimum, must
include the following information:
(1) A description of the final cover,
designed in accordance with paragraph
(a) of this section and the methods and
procedures to be used to install the
cover;
(2) An estimate of the largest area of
the CKDLF unit ever requiring a final
cover as required under paragraph (a) of
this section at any time during the
active life;
(3) An estimate of the maximum
inventory of wastes ever on-site over the
active life of the landfill facility; and
(4) A schedule for completing all
activities necessary to satisfy the closure
criteria in this section.
(d) The person managing CKD waste
must notify the EPA Regional
Administrator that a closure plan has
been prepared and placed in the
operating record no later than the
effective date of this rule, or by the date
of initial receipt of waste, whichever is
later.
(e) Prior to beginning closure of each'
CKDLF unit as specified in paragraph (f)
of this section, the person managing
CKD waste must notify the EPA
Regional Administrator that a notice of
the intent to close the unit has been
placed in the operating record.
(f) The closure activities of each
CKDLF unit must begin no later than 30
days after the date on which the CKDLF
unit receives the known final receipt of
wastes or, if the CKDLF unit has
remaining capacity and there is a
reasonable likelihood that the CKDLF
unit will receive additional wastes, no
later than one year after the most recent
receipt of wastes. Extensions beyond the
one-year deadline for beginning closure
may be granted by the EPA Regional
Administrator if the person managing
CKD waste demonstrates that the
CKDLF unit has the capacity to receive
additional wastes and the person
managing CKD waste has taken and will
continue to take all steps necessary to
prevent threats to human health and the
environmental from the unclosed
CKDLF unit.
(g) The closure activities of all CKDLF
units must be completed in accordance
with the closure plan within 180 days
following the beginning of closure as
specified in paragraph (f) of this
Section. Extensions of the closure
period may be granted by the EPA
Regional Administrator if the person
managing CKD waste demonstrates that
closure will, of necessity, take longer
than 180 days and he or she has taken
and will continue to take all steps to
prevent threats to human health and the
environment from the unclosed CKDLF
unit.
(h) Within 14 days following closure
of each CKDLF unit, the person
managing CKD waste must notify the
EPA Regional Administrator that a
certification, signed by an independent
registered professional engineer, facility
management, or approved by the EPA
Regional Administrator, verifying that
closure has been completed in
accordance with the closure plan, has
been placed in the operating record.
(i)(l) Within 14 days following
closure of all CKDLF units, the person
managing CKD waste must record a
notation on the deed to the landfill
facility property, or some other
instrument that is normally examined
during title search, and notify the EPA
Regional Administrator that the notation
has been recorded and a copy has been
placed in the operating record.
(2) The notation on the deed must in
perpetuity notify any potential
purchaser of the property that the land
has been used for disposal of CKD
waste.
(j) The person managing CKD waste
may request permission from the EPA
Regional Administrator to remove the
notation from the deed if all CKD waste
has been removed from the facility.
§259.51 Post-closure care requirements.
(a) Following closure of each CKDLF
unit, the person managing CKD waste
must conduct post-closure care. Post-
closure care must be conducted for 30
years, except as provided under
paragraph (b) of this Section, and
consist of at least the following:
(1) Maintaining the integrity and
effectiveness of any final cover,
including making repairs to the cover as
necessary to correct the effects of
settlement, subsidence, erosion, or other
events, and preventing run-on and run-
off from eroding or otherwise damaging
the final cover;
(2) Maintaining and operating the
leachate collection system in
accordance with the requirements in
§ 259.30, if applicable. The EPA
Regional Administrator may allow the
person managing CKD waste to stop
managing leachate if the person
managing CKD waste demonstrates that
leachate no longer poses a threat to
human health and the environment; and
(3) Monitoring the ground water in
accordance with the requirements of
Subpart E of this part and maintaining
the ground-water monitoring system, if
applicable.
(b) The length of the post-closure care
period may be:
(1) Decreased by the EPA Regional
Administrator if the person managing
CKD waste demonstrates that the
reduced period is sufficient to protect
human health and the environment and
this demonstration is approved by the
EPA Regional Administrator; or
(2) Increased by the EPA Regional
Administrator if the EPA Regional
Administrator determines that the
lengthened period is necessary to
protect human health and the
environment.
(c) For all CKDLF units the person
managing CKD waste must prepare a
written'post-closure care plan that
includes, at a minimum, the following
information:
(1) A description of the monitoring
and maintenance activities required in
paragraph (a) of this Section for each
CKDLF unit, and the frequency at which
these activities will be performed;
(2) Name, address, and telephone
number of the person or office to contact
about the facility during the post-
closure period; and
(3) A description of the planned uses
of the property during the post-closure
period. Post-closure use of the property
shall not disturb the integrity of the
final cover, liner(s), or any other
components of the containment system,
or the function of the monitoring
systems unless necessary to comply
with the requirements in this part. The
EPA Regional Administrator may
approve any other disturbance if the
person managing CKD waste
demonstrates that disturbance of the
final cover, liner or other component of
the containment system, including any
removal of waste, will not increase the
potential threat to human health or the
environment.
(d) The person managing CKD waste
must notify the EPA Regional
Administrator that a post-closure care
plan has been prepared and placed in
the operating record no later than the
effective date of this rule, or by the date
of initial receipt of waste, whichever is
later.
(e) Within 14 days following
completion of the post-closure care
period for each CKDLF unit, the person
managing CKD waste must notify the
EPA Regional Administrator that a
certification, signed by an independent,
registered professional engineer or
approved by the EPA Regional
Administrator, verifying that post-
closure care has been completed in
accordance with the post-closure plan,
has been placed in the operating record..
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§§259.52-259.59 [Reserved]
Subpart G—Financial Assurance
Criteria
§259.60 Applicability.
(a) The requirements of this section
apply to owners and operators of all
CKDLF units, except owners or
operators who are State or Federal
Government entities whose debts and
liabilities are the debts and liabilities of
a State or the United States.
(b) In this part, Owner means the
person (s) who owns a CKDLF unit or
part of a CKDLF unit.
Operator means the person(s)
responsible for the overall operation of
a CKDLF unit or part of a CKDLF unit.
§ 259.61 Financial assurance for closure.
(a) The owner or operator must have
a detailed written estimate, in current
dollars, of the cost of hiring a third party
to close the largest area of all CKDLF
units ever requiring a final cover as
required under § 259.50 at any time
during the active life in accordance with
the closure plan. The owner or operator
must notify the EPA Regional
Administrator that the estimate has been
placed in the operating record.
(1) The cost estimate must equal the
cost of closing the largest area of all
CKDLF unit ever requiring a final cover
at any time during the active life when
the extent and manner of its operation
would make closure the most expensive,
as indicated by its closure plan (see
§259.50(c)(2)).
(2) During the active life of the CKDLF
unit, the owner or operator must
annually adjust the closure cost estimate
for inflation.
(3) The owner or operator must
increase the closure cost estimate and
the amount of financial assurance
provided under paragraph (b) of this
Section if changes to the closure plan or
CKDLF unit conditions increase the
maximum cost of closure at any time
during the remaining active life.
(4) The owner or operator may reduce
the closure cost estimate and the
amount of financial assurance provided
under paragraph (b) of this Section if the
cost estimate exceeds the maximum cost
of closure at any time during the
remaining life of the CKDLF unit.
Within 14 days of this finding, the
person managing CKD waste must notify
the EPA Regional Administrator that the
justification for the reduction of the
closure cost estimate and the amount of
financial assurance has been placed in
the operating record.
(b) For each CKDLF unit receiving
CKD waste after the effective date of the
rule, the owner or operator must
establish financial assurance for closure
in compliance with §259.64. The owner
or operator must provide continuous
coverage for closure until released from
financial assurance requirements by
demonstrating compliance with §259 50
(h)and(i).
care by demonstrating compliance with
§ 259.5 l(e).
§ 259.63 Financial assurance for corrective
action.
§259.62 Financial assurance for post-
closure care.
(a) The owner or operator must have
a detailed written estimate, in current
dollars, of the cost of hiring a third party
to conduct post-closure care for the
CKDLF unit in compliance with the
post-closure care plan developed under
§259.51. The post-closure care cost
estimate used to demonstrate financial
assurance in paragraph (b) of this
Section must account for the total costs
of conducting post-closure care,
including annual and periodic costs as
described in the post-closure care plan
over the entire post-closure care period.
The owner or operator must notify the
EPA Regional Administrator that the
estimate has been placed in the
operating record.
(1) The cost estimate for post-closure
care must be based on the most
expensive costs of post-closure care
during the entire post-closure care
period.
(2) During the active life of the CKDLF
unit and during the post-closure care
period, the owner or operator must
annually adjust the post-closure cost
estimate for inflation.
(3) The owner or operator must
increase the post-closure care cost
estimate and the amount of financial
assurance provided under paragraph (b)
of this section if changes in the post-
closure plan or CKDLF unit conditions
increase the maximum costs of post-
closure care.
(4) The owner or operator may reduce
the post-closure care cost estimate and
the amount of financial assurance
provided under paragraph (b) of this
section if the cost estimate exceeds the
maximum costs of post-closure care
remaining over the post-closure care
period. Within 14 days of this finding,
the owner or operator must notify the
EPA Regional Administrator that the
justification for the reduction of the
post-closure cost estimate and the
amount of financial assurance has been
placed in the operating record.
(b) The owner or operator of each
CKDLF unit must establish, in a manner
in accordance with §259.64, financial
assurance for the costs of post-closure
care as required under §259.51. The
owner or operator must provide
continuous coverage for post-closure
care until released from financial
assurance' requirements for post-closure
(a) An owner or operator in a CKDLF
unit required to undertake a corrective
action program under §259.48 must
have a detailed written estimate, in
current dollars, of the cost of hiring a
third party to perform the corrective
action in accordance with the program
required under §259.48. The corrective
action cost estimate must account for
the total costs of corrective action
activities as described in the corrective
action plan for the entire corrective
action period. Prior to undertaking
corrective action under §259.48, the
owner or operator must notify the EPA
Regional Administrator that the estimate
has been placed in the operating record.
(1) The owner or operator must
annually adjust the estimate for
inflation until the corrective action
program is completed in accordance
with§259.48(f).
(2) The owner or operator must
increase the corrective action cost
estimate and the amount of financial
assurance provided under paragraph (b)
of this section if changes in the
corrective action program or CKDLF
unit conditions increase the maximum
costs of corrective action.
(3) The owner or operator may reduce
the amount of the corrective action cost
estimate and the amount of financial
assurance provided under paragraph (b)
of this section if the cost estimate
exceeds the maximum remaining costs
of corrective action. Within 14 days of
making an annual adjustment under
paragraph (a)(l) of this section, the
owner or operator must notify the EPA
Regional Administrator that the
justification for the reduction or
increase of the corrective action cost
estimate and the amount of financial
assurance has been placed in the
operating record.
(b) An owner or operator in a CKDLF
unit, if required to undertake a
corrective action program under
§ 259.48 must establish financial
assurance using the allowable
mechanisms defined under §259.64. An
owner or operator in a CKDLF unit must
establish financial assurance for all
corrective action programs initiated
during the active life of the unit,
closure, and post-closure care periods.
The owner or operator must provide
continuous coverage for corrective
action until released from financial
assurance requirements for corrective
action by demonstrating compliance
with §§259.48 (fj.and (g).
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§259.64 Allowable mechanisms.
The mechanisms used to demonstrate
financial assurance under this Section
must ensure that the funds necessary to
meet the costs of closure, post-closure
care, and corrective action for known
releases will be available whenever they
are needed. Persons managing CKD
waste must choose from the options
specified in paragraphs (a) through (j) of
this section.
(a) Trust Fund. (1) The owner or
operator may satisfy the requirements of
this section by establishing a trust fund
which conforms to the requirements of
this paragraph. The trustee must be an
entity which has the authority to act as
a trustee and whose-trust operations are
regulated and examined by a Federal or
State agency. A copy of the trust
agreement must be placed in the
facility's operating record.
(2) Payments into the trust fund must
be made annually by the owner or
operator over the term of the initial
control mechanism or over the
remaining life of the CKDLF unit,
whichever is shorter, in the case of a
trust fund for closure or post-closure
care, or over one-half of the estimated
length of the corrective action program
in the case of corrective action for
known releases. This period is referred
to as the pay-in period.
(3) For a trust fund used to
demonstrate financial assurance for
closure and post-closure care, the first
payment into the fund must be at least
equal to the current cost estimate for
closure or post-closure care, except as
provided in paragraph (k) of this
section, divided by the number of years
in the pay-in period as defined in
paragraph (a) (2) of this section. The
amount of subsequent payments must
be determined by the following formula:
Next Payment = [CE-CVJ/Y
Where:
CE is the current cost estimate for closure
or post-closure care (updated for inflation or
other changes), CV is the current value of the
trust fund, and Y is the number of years
remaining in the pay-in period.
' (4) For a trust fund used to
demonstrate financial assurance for
corrective action, the first payment into
the trust fund must be at least equal to
one-half of the current cost estimate for
corrective action, except as provided in
paragraph (k) of this section, divided by
the number of years in the corrective
action pay-in period as defined in
paragraph (a) (2) of this Section. The
amount of subsequent payments must
be determined by the followingformula:
Next Payment = [RB-CV1/Y
Where:
RB is the most recent estimate of the
required trust fund balance for corrective
action (i.e.. the total costs .that will be
incurred during the second half of the
corrective action period), CV is the current
value of the trust fund, and Y is the number
of years remaining in the pay-in period.
(5) The initial payment into the trust
fund must be made before the initial
receipt of waste or before two years
elapse after the effective date of this
rule, whichever is later; in the case of
closure and post-closure care, or no later
than 120 days after the corrective action
remedy has been selected in accordance
with the requirements of §259.48.
(6) If the owner or operator establishes
a trust fund after having used one or
more alternate mechanisms specified in
this Section, the initial payment into the
trust fund must be at least the amount
that the fund would contain if the trust
fund were established initially and
annual payments made according to the
specifications of this paragraph and
paragraph (a) of this section, as
applicable.
(7) The owner or operator, or other
person authorized to conduct closure,
post-closure care, or corrective action
activities may request reimbursement
from the trustee for these expenditures.
Requests for reimbursement will be
granted by the trustee only if sufficient
funds are remaining in the trust fund to
cover the remaining costs of closure,
post-closure care, or corrective action,
and if justification and documentation
of the cost is placed in the operating
record. Prior to reimbursement, the
owner or operator must notify the EPA.
Regional Administrator that the
documentation of the justification for
reimbursement has been placed in the
operating record and that
reimbursement has been received.
(8) The trust fund may be terminated
by the owner or operator only if the
owner or operator substitutes alternate
financial assurance as specified in this
Section or if he is no longer required to
demonstrate financial responsibility in
accordance with the requirements of
§259.61(b), §259.62(b), or §259.63(b).
(b) Surety Bond Guaranteeing
Payment or Performance. (1) The owner
or operator may demonstrate financial
assurance for closure or post-closure
care by obtaining a payment or
performance surety bond which
conforms to the requirements of this
paragraph. The owner or operator may
demonstrate financial assurance for
corrective action by obtaining a
performance bond which conforms to
the requirements of this paragraph. The
bond must be effective before the initial
receipt of waste or before two years
elapse after [the effective date of this
rule], whichever is later; in the case of
closure and post-closure care, the bond
must be effective no later than 120 days
after the corrective action remedy has
been selected in accordance with the
requirements of §259.48. Within 14
days after demonstrating financial
assurance according to this section,, the
owner or operator must notify the EPA
Regional Administrator that a copy of
the bond has been placed in the
operating record. The surety company
issuing the bond must, at a minimum,
be among those listed as acceptable
sureties on Federal bonds in Circular
570 of the U.S. Department of the
Treasury.
(2) The penal sum of the bond must
be in an amount at least equal to the
current closure, post-closure care or
corrective action cost estimate,
whichever is applicable, except as
provided in paragraph (k) of this
section.
(3) Under the terms of the bond, the
surety will become liable on die bond
obligation when the owner or operator
fails to perform as guaranteed by the
bond.
(4) The owner or operator must
establish a standby trust fund. The
standby trust fund must meet the
requirements of paragraph (a) of this
Section except the requirements for
initial payment and subsequent annual
payments specified in paragraphs (a) (2),
(3), (4) and (5) of this section.
(5) Payments made under the terms of
the bond will be deposited by the surety
directly into the standby trust fund.
Payments from the trust fund must be
approved by the trustee.
(6) Under the terms of the bond, the
surety may cancel the bond by sending
notice of cancellation by certified mail
to the owner and operator and to the
EPA Regional Administrator 120 days in
advance of cancellation. If the surety
cancels the bond, the owner or operator
must obtain alternate financial
assurance as specified in this section.
(7) The owner or operator may cancel
the bond only if alternate financial
assurance is substituted as specified in
this Section or if the owner or operator
is no longer required to demonstrate
financial responsibility in accordance
with §259.61 (b), §259.62(b) or
§259.63(b).
(c) Letter of Credit. (1) The owner or
operator may satisfy the requirements of
this Section by obtaining an irrevocable
standby letter of credit which conforms
to the requirements of this paragraph.
The letter of credit must be effective
before the initial receipt of waste or
before two years elapse after the
effective date of this rule, whichever is
later; in the case of closure and post-
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45693
closure care, the letter of credit must be
effective no later than 120 days after the
corrective action remedy has been
selected in accordance with the
requirements of §259.48. Within 14
days after obtaining a letter of credit, the
owner or operator must notify the EPA
Regional Administrator that a copy of
the letter of credit has been placed in
the operating record. The issuing
institution must be an entity which has
the authority to issue letters of credit
and whose letter-of-credit operations are
regulated and examined by a Federal or
State agency.
(2) A letter from the owner or operator
referring to the letter of credit by
number, issuing institution, and date,
and providing the following
information: Name, and address of the
facility, and the amount of funds
assured, must be included with the
letter of credit in the operating record.
{3) The letter of credit must be
irrevocable and issued for a period of at
least one year in an amount at least
equal to the current cost estimate for
closure, post-closure care or corrective
action, whichever is applicable, except
as provided in paragraph (k) of this
Section. The letter of credit must
provide that the expiration date will be
automatically extended for a period of at
least one year unless the issuing
institution has canceled the letter of
credit by sending notice of cancellation
by certified mail to the owner and
operator and to the EPA Regional
Administrator 120 days in advance of
cancellation. If the letter of credit is
canceled by the issuing institution, the
owner or operator must obtain alternate
financial assurance.
(4) The owner or operator may cancel
the letter of credit only if alternate
financial assurance is substituted as
specified in this Section or if the owner
or operator is released from the
requirements of this Section in
accordance with §259.61 (b), § 259.62(b)
or§259.63(b).
(d) Insurance. (1) The owner or
operator may demonstrate financial
assurance for closure and post-closure
care by obtaining insurance which
conforms to the requirements of this
paragraph. The insurance must be
effective before the initial receipt of
waste or before two years elapse after
the effective date of the requirements of
this rule, whichever is later; in the case
of closure and post-closure care, the
insurance must be effective no later than
120 days after the corrective action
remedy has been selected in accordance
with the requirements of §259.48. At a
minimum, the insurer must be licensed
to transact the business of insurance, or
eligible to provide insurance as an
excess or surplus lines insurer, in one
or more States. Within 14 days after
obtaining insurance, the owner or
operator must'notify the EP'R Regional
Administrator that a copy of the
insurance policy has been placed in the
operating record.
(2) The closure or post-closure care
insurance policy must guarantee that
funds will be available to close the
CKDLF Unit whenever final closure
occurs and/or to provide post-closure
care for the CKDLF unit whenever the
post-closure care period begins,
whichever is applicable. The policy
must also guarantee that once closure or
post-closure care begins, the insurer will
be responsible for the paying out of
funds to the owner or operator or other
person authorized to conduct closure or
post-closure care, up to an amount equal
to the face amount of the policy.
(3) The insurance policy must be
issued for a face amount at least equal
to the current cost estimate for closure
or post-closure care, whichever is
applicable. The term face amount means
the total amount the insurer is obligated
to pay under the policy. Actual
payments by the insurer will not change
the face amount, although the insurer's
future liability will be lowered by the
amount of the payments.
(4) A owner or operator, or any other
person authorized to conduct closure or
post-closure care, may receive
reimbursements for closure or post-
closure expenditures, whichever is
applicable. Requests for reimbursement
will be granted by the insurer only if the
remaining value of the policy is
sufficient to cover the remaining costs of
closure or post-closure care, and if
justification and documentation of the
cost is placed in the operating record.
Within 14 days after reimbursement, the
owner or operator must notify the EPA
Regional Administrator that the
documentation of the justification for
reimbursement has been placed in the
operating record and that
reimbursement has been received.
(5) Each policy must contain a
provision allowing assignment of the
policy to a successor owner or operator.
Such assignment may be conditional
upon consent of the insurer, provided
that such consent is not unreasonably
refused.
(6) The insurance policy must provide
that the insurer may not cancel,
terminate or fail to renew the policy
except for failure of payment of
premium. The automatic renewal of the
policy must, at a minimum, provide the
insured with the option of renewal at
the face amount of the expiring policy.
If there is a failure to pay the premium,
the insurer may cancel the policy by
sending notice of cancellation by
certified mail to the owner and operator
and to the EPA Regional Administrator
120 days in advance of cancellation. If
the insurer cancels the policy, the
owner or operator must obtain alternate
financial assurance as-specified in this
section.
(7) For insurance policies providing
coverage for post-closure care,
commencing on the date that liability to
make payments pursuant to the policy
accrues, the insurer will thereafter
annually increase the face amount of the
policy. Such increase must be
equivalent to the face amount of the
policy, less any payments made,
multiplied by an amount equivalent to
85 percent of the most recent
investment rate or of the equivalent
coupon-issue yield announced by the
U.S. Treasury for 26-week Treasury
securities.
(8) The owner or operator may cancel
the insurance policy only if alternate
financial assurance is substituted as
specified in this Section or if the owner
or operator is no longer required to
demonstrate financial responsibility in
accordance with the requirements of
§259.61(b), §259.62(b) or §259.63(b).
(e) Corporate Financial Test. The
owner or operator that satisfies the
requirements of this paragraph may
demonstrate financial assurance up to
the amount specified herein:
(1) Financial Component.
(i) The owner or operator must satisfy
one of the following three conditions:
(A) A current rating for its senior
unsecured debt of AAA, AA, A, or EBB
as issued by Standard and Poor's or Aaa,
Aa, A or Baa as issued by Moody's; or
(B) A ratio of less than 1.5 comparing
total liabilities to net worth; or
(C) A ratio of greater than 0.10
comparing the sum of net income plus
depreciation, depletion and
amortization, minus $10 million, to total
liabilities.
(ii) The tangible net worth of the
owner or operator must be greater than:
(A) The sum of the current closure,
post-closure care, corrective action cost
estimates and any other environmental
obligations, including guarantees,
covered by a financial test plus $10
million except as provided in paragraph
(e) (1) (ii) (B) of this section.
(B) $10 million in net worth plus the
amount of any guarantees that have not
been recognized as liabilities on the
financial statements, provided all of the
current closure, post-closure care, and
corrective action costs and any other
environmental obligations covered by a
financial test are recognized as
liabilities on the owner's or operator's
audited financial, statements, and
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subject to the approval of the EPA
Regional Administrator.
(iii) The owner or operator must have
assets located in the United States
amounting to at least the sum of current
closure, post-closure care, corrective
action cost estimates and any other
environmental obligations covered by a
financial test as described in paragraph
(e)(3) of this Section.
(2) Recordkeeping and reporting
requirements.
(i) As they become available, the
owner or operator must place the
following items into die facility's
operating record:
(A) A letter signed by the owner's or
operator's chief financial officer that:
(1) Lists all the current cost estimates
covered by a financial test, including,
but not limited to, cost estimates
required for municipal solid waste
management facilities under 40 CFR
Part 258, cost estimates required for UIC
facilities under 40 CFR Part 144, if
applicable, cost estimates required for
petroleum underground storage tank
facilities under 40 CFR Part 280, if
applicable, cost estimates required for
PCB storage facilities under 40 CFR Part
261, if applicable, and cost estimates
required for hazardous waste treatment,
storage, and disposal facilities under 40
CFR Parts 264 and 265, if applicable:
and
(2) Provides evidence demonstrating
that the firm meets the conditions of
either paragraph (e)(l)(i)(A) or
(e)(l)(i)(B) or (e)(l)(i)(C) and paragraphs
(e)(l)(ii) and (e)(l)(iii) of this Section.
(B) A copy of the independent
certified public accountant's
unqualified opinion of the owner's or
operator's financial statements for the
latest completed fiscal year. To be
eligible to use the financial test, the
owner's or operator's financial
statements must receive an unqualified
opinion from the independent certified
public accountant. An adverse opinion,
disclaimer of opinion, or other qualified
opinion will be cause for disallowance,
with the potential exception for
qualified opinions provided in the next
sentence. The EPA Regional
Administrator may evaluate qualified
opinions on a case-by-case basis and
allow use of the financial test in cases
where the EPA Regional Administrator
deems that the matters which form the
basis for the qualification are
insufficient to warrant disallowance of
the test. If the EPA Regional
Administrator does not allow use of the
test, the owner or operator must provide
alternate financial assurance that meets
the requirements of this Section.
(C) If the chief financial officer's letter
providing evidence of financial
assurance includes financial data
showing that owner or operator satisfies
paragraphs (e)(l)(i)(B) or (e)(l)(i)(C) of
this section that are different from data
in the audited financial statements
referred to in paragraph (e)(2)(i)(B) of
this Section or any other audited
financial statement or data filed with
the Securities and Exchange
Commission (SEC) then a special report
from the owner's or operator's
independent certified public accountant
to the owner or operator is required. The
special report shall be based upon an
agreed upon procedures engagement in
accordance widi professional auditing
standards and shall describe the
procedures performed in comparing the
data in the chief financial officer's letter
derived from die independently
audited, year-end financial statements
for the latest fiscal year with the
amounts in such financial statements,
the findings of that comparison, and the
reasons for any differences.
(D) If the chief financial officer's letter
provides a demonstration that the firm
has assured for environmental
obligations as provided in paragraph
(e)(l)(ii)(B) of this section, then the
letter shall include a report from the
independent certified public accountant
that verifies that all of the
environmental obligations covered by a
financial test have been recognized as
liabilities on the audited financial
statements, how these obligations have
been measured and reported, and that
the tangible net worth of the firm is at
least $10 million plus the amount of any
guarantees provided.
(ii) The owner or operator must place
the items specified in paragraph (e)(2)(i)
of this section in the operating record
and notify the EPA Regional
Administrator that these items have
been placed in the operating record
before the initial receipt of waste or
before two years elapse after the
effective date of this rule, whichever is
later; in the case of closure, and post-
closure care, items specified in
paragraph (e) (2) (i) of this section must
have been placed in the operating
record no later than 120 days after the
corrective action remedy has been
selected in accordance with die
requirements of § 259.48.
(iii) After the initial placement of
items specified in paragraph (e) (2) (i) of
this section in the operating record, the
owner or operator must annually update
the information and place updated
information in the operating record
widiin 90 days following the close of
the owner or operator's fiscal year. The
EPA Regional Administrator may
provide up to an additional 45 days for
a owner or operator who can
demonstrate that 90 days is insufficient
time to acquire audited financial
statements. The updated information
must consist of all items specified in
paragraph (e) (2) (i) of this section.
(iv) The owner or operator is no
longer required to submit the items
specified in paragraph (e)(2) of this
section or comply with the requirements
of this paragraph when:
(A) The person substitutes alternate
financial assurance as specified in this
section that is not subject to these
recordkeeping and reporting
requirements; or
(B) The person is released from the
requirements of this section in
accordance with §259.61(b), §259.62(b),
or§259.63(b).
(v) If die owner or operator no longer
meets the requirements of paragraph
(e)(l) of this section, the owner or
operator must, within 120 days
following the close of the owner or
operator's fiscal year, obtain alternative
financial assurance that meets the
requirements of this section, place the
required submissions for that assurance
in the operating record, and notify the
EPA Regional Administrator that the
owner or operator no longer meets the
criteria of the financial test and that
alternate assurance has been obtained.
(vi) The EPA Regional Administrator
may, based on a reasonable belief that
the owner or operator may no longer
meet the requirements of paragraph
(e)(l) of this section, require at any time
the owner or operator to provide reports
of its financial condition in addition to
or including current financial test
documentation as specified in
paragraph (e) (2) of this section. If the
EPA Regional Administrator finds that
the owner or operator no longer meets
the requirements of paragraph (e)(l) of
this section, within 120 days of this
finding the owner or operator must
provide alternate financial assurance
that meets the requirements of this
section.
(3) Calculation of costs to be assured.
When calculating the current cost
estimates for closure, post-closure care,
corrective action, or the sum of the
combination of such costs to be covered,
and any other environmental obligations
assured by a financial test referred to in
paragraph (e) of this section, the owner
or operator must include cost estimates
required for cement kiln dust solid
waste management facilities under this
part, as well as cost estimates required
for the following environmental
obligations, if the person assures them
through a financial test: obligations
associated with UIC facilities under 40
CFR Part 144, petroleum underground
storage tank facilities under 40 CFR Part.
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280, PCB storage facilities under 40 CFR
Part 261, and hazardous waste
treatment, storage, and disposal
facilities under 40 CFR Parts 264 and
265.
(f) Corporate Guarantee. (1) The
owner or operator may meet the
requirements of this section by
obtaining a written guarantee. The
guarantor must be the direct or higher-
tier parent corporation of the owner or
operator, a firm whose parent
corporation is also the parent
corporation of the owner or operator, or
a firm with a "substantial business
relationship" with the owner or
operator. The guarantor must meet the
requirements for owners or operators in
paragraph (e) of this section and must
comply with the terms of the guarantee.
A certified copy of the guarantee must
be placed in the facility's operating
record along with copies of the letter
from the guarantor's chief financial
officer and accountants' opinions. If the
guarantor's parent corporation is also
the parent corporation of the owner or
operator, the letter from the guarantor's
chief financial officer must describe the
value received in consideration of the
guarantee. If the guarantor is a firm with
a "substantial business relationship"
with the owner or operator, this letter
must describe this "substantial business
relationship" and the value received in
consideration of the guarantee.
(2) The guarantee must be effective
and all required submissions placed in
the operating record before the initial
receipt of waste or before the effective
date of the requirements of this section,
whichever is later, in the case of closure
and post-closure care, or in the case of
corrective action no later than 120 days
after the corrective action remedy has
been selected in accordance with the
requirements of § 259.48.
(3) The terms of the guarantee must
provide that:
(i) If the owner or operator fails to
perform closure, post-closure care, and/
or corrective action of a facility covered
by the guarantee, the guarantor will:
(A) Perform, or pay a third party to
perform, closure, post-closure care, and/
or corrective action as required
(performance guarantee); or
(B) Establish a fully funded trust fund
as specified in paragraph (a) of this
section in the name of the owner or
operator (payment guarantee).
(ii) The guarantee will remain in force
for as long as the owner or operator
must comply with the applicable
financial assurance requirements of this
Subpart unless the guarantor sends prior
notice of cancellation by certified mail
to the owner or operator and to the EPA
Regional Administrator. Cancellation
may not occur, however, during the 120
days beginning on the date of receipt of
the notice of cancellation by both the
owner or operator and the EPA Regional
Administrator, as evidenced by the
return receipts.
(iii) If notice of cancellation is given,
the owner or operator must, within 90
days following receipt of the
cancellation notice by the owner or
operator and the EPA Regional
Administrator, obtain alternate financial
assurance, place evidence of that
alternate financial assurance in the
facility operating record, and notify the
EPA Regional Administrator. If the
owner or_operator fails to provide
alternate financial assurance within the
90-day period, the guarantor must
provide that alternate assurance within
120 days of the cancellation notice,
obtain alternative assurance, place
evidence of the alternate assurance in
the facility operating record, and notify
the EPA Regional Administrator.
(4) If a corporate guarantor no longer
meets the requirements of paragraph
(e)(l) of this section, the owner or
operator must, within 90 days, obtain
alternative assurance, place evidence of
the alternate assurance in the facility
operating record, and notify the EPA
Regional Administrator. If the owner or
operator fails to provide alternate
financial assurance within the 90-day
period, the guarantor must provide that
alternate assurance within the next 30
days.
(5) The owner or operator is no longer
required to meet the requirements of
paragraph (g) of this section when:
(i) The owner or operator substitutes
alternate financial assurance as
specified in this section; or
(ii) The owner or operator is released
from the requirements of this section in
accordance with §259.61 (b), §259.62(b),
or§259.63(b).
(g) State-Approved Mechanism. In an
authorized State, the owner or operator
may satisfy the requirements of this
section by obtaining any other
mechanism that meets the criteria
specified in paragraph (j)(l) Of this
section, and that is approved by the
State Director.
(h) State Assumption of
Responsibility. If the State Director
either assumes legal responsibility for
the person's compliance with the
closure, post-closure care and/or
corrective action requirements of this
part, or assures that the funds will be
available from State sources to cover the
requirements, the owner or operator will
be in compliance with the requirements
of this section. Any State assumption of
responsibility must meet the criteria
specified in paragraph (j)(l) of this
section.
(i) Use of multiple mechanisms. The
owner or operator may demonstrate
financial assurance for closure, post-
closure, and corrective action, as
required by § 259.61-,-§259.62, and
§ 259.63 by establishing more than one
mechanism per facility, except that
mechanisms guaranteeing performance
rather than payment, may not be
combined with other instruments. The
mechanisms must be as specified in
paragraphs (a), (b), (c), (d), (e), (f), (g),
(h), and (i) of this section, except that
financial assurance for an amount at
least equal to the current cost estimate
for closure, post-closure care, and/or
corrective action may be provided by a
combination of mechanisms rather than
a single mechanism.
0) The language of the mechanisms
listed in paragraphs (a), (b). (c), (d), (e),
(f), (g), (h), and (i) of this section must
ensure that the instruments satisfy the
following criteria:
(1) The financial assurance
mechanisms must ensure that the
amount of funds assured is sufficient to
cover the costs of closure, post-closure
care, and corrective action for known
releases when needed;
(2) The financial assurance
mechanisms must ensure that funds will
be available in a timely fashion when
needed;
(3) The financial assurance
mechanisms must be obtained by the
owner or operator by the effective date
of these requirements or prior to the
initial receipt of solid waste, whichever
is later, in the case of closure and post-
closure care, and no later than 120 days
after the corrective action remedy has
been selected in accordance with the
requirements of §259.48, until the
owner or operator is released from the
financial assurance requirements under
§§259.61, 259.62 and 259.63.
(4) The financial assurance
mechanisms must be legally valid,
binding, and enforceable under State
and Federal law.
§259.65 Discounting.
The EPA Regional Administrator may
allow discounting of closure cost
estimates in §259.61 (a), post-closure
cost estimates in §259.62(a), and/or
corrective action costs in §259.63(a) up
to the rate of return for essentially risk
free investments, net of inflation, under
the following conditions:
(a) The EPA Regional Administrator
determines that cost estimates are
complete and accurate and the owner or
operator has submitted a statement from
a Registered Professional Engineer so
stating;
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(b) The EPA Regional Administrator
finds the facility in compliance with
applicable and appropriate permit
conditions:
(c) The EPA Regional Administrator
determines that the closure date is
certain and the owner or operator
certifies that there are no foreseeable
factors that will change the estimate of
site life; and
(d) Discounted cost estimates must be
adjusted annually to reflect inflation
and years of remaining life.
APPENDIX I TO PART 259—CONSTITU-
ENTS FOR DETECTION MONITORING
Common name1
pH
Conductivity
Total Dissolved Solids
Potassium
Chloride
Sodium
Sulfate .
1 Common names are those used widely in
government regulations, scientific publications,
and commerce; synonyms exist for many
chemicals.
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
1. The authority citation for Part 261
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921,
6922. 6924(y), and 6938.
2. Section 261.4 is amended by
revising paragraph (b)(8) to read as
follows:
§261.4 Exclusions.
# # # * *
(b)* * *
(8)(i) Except as provided in §266.112
of this chapter for facilities that burn or
process hazardous waste, CKD waste, so
long as it is managed in accordance with
Part 259 of this chapter.
(ii) CKD waste is not managed in
accordance with Part 259 of this chapter
when a facility:
(A) Fails to comply with:
(J) air requirements for landfills, as
specified §259.22 of this chapter, by 90
days after the effective date of the final
rule, unless granted approval by the
EPA Regional Administrator (or the
State, in authorized States) under
§ 259.22(d) of this chapter to implement
alternative measures for fugitive dust
control;
(2) the containment standards, as
specified under §259.20 of this chapter,
for CKD destined for sale or beneficial
use within two years after the effective
date of the final rule, unless granted
approval by the EPA Regional
Administrator under § 259.20(c) of this
chapter to implement alternative
measures for fugitive dust control;
(3) design requirements for CKD
landfills, as specified under §259.30(c)
of this chapter by two years after the
effective date of the final rule, unless
granted approval by the EPA Regional
Administrator under the provisions of
§ 259.30(h) of this chapter for a unit
design, or a finding is made of no
potential for migration under §259.40(b)
of this chapter;
(4) ground-water monitoring systems
requirements, as specified under
§ 259.41 of this chapter, by two years
after the effective date of the final rule,
unless granted approval by the EPA
Regional Administrator under the
provisions of § 259.30(h) of this chapter
for a unit design, or a finding is made
of no potential for migration under
§259.40(b) of this chapter;
(5) the time frames for appropriate
corrective action proposed today under
§§259.41, 259.44, 259.45, 259.46, and
259.47 of this chapter;
(6) any applicable demonstration
requirements for new CKD landfills as
specified under §§259.1 l(a), 259.12(a),
259.13(a), 259.14(a), 259.15(a) and
259.16(a) of this chapter;
(7) any requirement identified in a
notice received from the Regional
Administrator because of repeated
violations the requirements of Part 259
of this chapter, other than those
specified in paragraphs (b) (8) (ii) (A) (1)
through (b)(8)(ii)(A)(6) of this section;
or,
(B) Fails to comply with any section
of Part 259 of this chapter, other than
those specified in paragraphs
(b)(8)(ii)(A) of this section, within 30
days of receiving a written notice of
non-compliance with any of those
sections from the Regional
Administrator
(iii) Clinker manufactured with CKD
waste that has been listed in Subpart D
of this part and has been reintroduced
to the cement manufacturing process.
PART 266—STANDARDS FOR THE
MANAGEMENT OF SPECIFIC
HAZARDOUS WASTES AND SPECIFIC
TYPES OF HAZARDOUS WASTE
MANAGEMENT FACILITIES
1. The authority citation for Part 266
continues to read as follows:
Authority: 42 USC 1006, 2002(a), 3004,
3014, 6905, 6906. 6912, 6922, 6924, 6925,
and 6937.
2. Subpart I is added to Part 266 to
read as follows:
Subpart I—Management Standards For
Hazardous Cement Kiln Dust Waste
Sec.
266.120 Applicability and requirements.
266.121 Removal of the hazardous waste
designation.
§ 266.120 Applicability and requirements.
(a) The purpose of this part is to
establish national criteria under the
Resource Conservation and Recovery
Act (RCRA or the Act), as amended, for
cement kiln dust waste that is not
characteristically hazardous waste
under the provisions of 40 CFR 266.112
and is not managed in accordance with
the provisions of Part 259 of this
chapter.
(b) Persons who generate, transport or
store CKD that is regulated under this
Subpart are subject to the requirements
in paragraphs (b)(l) through (7) of this
section. These requirements operate in
lieu of requirements in 40 CFR Parts
262-265. and 40 CFR Part 268 except
where portions of those Parts are
specifically cross-referenced.
(1) All applicable provisions of Part
262 (Standards Applicable to Generators
of Hazardous Waste) of this chapter;
(2) Sections 264.4 and 265.4 of
Subpart A (Imminent hazard action) of
this chapter;
(3) Sections 264.11 and 265.11
(Identification number), 264.12 and
265.12 (Required notices), 264.14 and
265.14 (Security), 264.15 and 265.15
(General inspection requirements),
264.16 and 265.16 (Personnel training),
and 264.19 and 265.19 (Construction
quality assurance program) of Subpart B
(General Facility Standards) of this
chapter.
(4) Subparts C, D, and E of both Parts
264 and 265 (Preparedness and
Prevention, Contingency Plan and
Emergency Procedures, and Manifest
System, Recordkeeping, and Reporting)
of this chapter;
(5) All provisions of 40 CFR Part 259
of this chapter.
§ 266.121 Removal of the hazardous waste
designation.
(a) If any CKD waste loses the
exemption under §261.4(b)(8) of this
chapter and becomes subject to
§ 266.120, the owner or operator of the
facility managing such waste may apply
to the Regional Administrator for
removal of the hazardous designation
for such CKD waste. The application
must include:
(1) A statement that the CKD waste is
now being managed in accordance with
Part 259;
(2) A statement explaining the
circumstances of the non-compliance;
and,
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45697
(3) A demonstration that the non-
compliance is not likely to recur.
(b) The Regional Administrator may
remove the hazardous waste designation
by reinstating the exclusion, as listed
under §261.4(b)(8) of this chapter, if the
Regional Administrator finds that the
owner or operator of the facility has
satisfactorily explained the
circumstances of the non-compliance,
has demonstrated that the non-
compliance is not likely to recur and
that removal of the hazardous waste
designation will not pose a threat to
human health or the environment. The
Regional Administrator may remove the
hazardous waste designation by
reinstating the exclusion (as listed
under §261.4(b)(8) of this chapter) with
additional conditions if the Regional
Administrator finds that such additional
conditions are necessary to ensure
protection of human health and the
environment.
(c) The Regional Administrator
should take action on an application for
removal of a hazardous waste
designation within 60 days after receipt
of the application. If the Regional
Administrator does not take action on
the application within that time period,
then the application for removal of the
hazardous waste designation (i.e.,
reinstatement of the exclusion under
§261.4(b)(8) of this chapter) is deemed
granted, retroactive to the date of the
application. However, the Regional
Administrator may terminate a removal
(i.e., reinstatement of the exclusion
under §261.4 (b) (8) of this'xhapter) by
default under this subsection if the
Regional Administrator finds that the
removal of the hazardous waste
designation is not appropriate based on
the factors specified in paragraph (b) of
this Section.
PART 270—EPA ADMINISTERED
PERMIT PROGRAMS: THE
HAZARDOUS WASTE PERMIT
PROGRAM
1. The authority citation for Part 270
continues to read as follows:
Authority: 42 USC 6905, 6912, 6924, 6925,
6927, 6939, and 6974.
2. Section 270.10 is amended by
adding a sentence to the end of
paragraph (a) to read as follows:
Subpart B—Permit Application
§270.10 General application
Requirements.
(a) Permit application. * * *
Procedures for application, issuance and
administration of permits for cement
kiln facilities that do not comply with
the provisions of Part 259 are found
exclusively in 40 CFR 270.69.
Subpart F—Special Forms of Permits
2. Subpart F is amended to add a new
§270.69 to read as follows:
§270.69 Permits for the Management of
'Cement Kiln Dust
(a) The EPA Regional Administrator
may issue a permit for continued
operation of cement manufacturing
facilities that do not comply with the
provisions of 40 CFR Part 259. Any such
permit shall contain such terms and
conditions as will assure protection of
human health and the environment.
Such permits:
(1) Shall provide for the operation of
the facility in accordance 40 CFR Part
259, and
(2) May include such additional
requirements as the EPA Regional
Administrator deems necessary to
protect human health and the
environment, including, but not limited
to requirements regarding monitoring,
operation, financial responsibility,
closure and remedial action.
(b) In issuing such permits, the EPA
Regional Administrator may modify or
waive permit application and permit
issuance requirements in 40 CFR Parts
124 and 270, except procedures
regarding public participation, provided
the modifications or waivers protect
human health and the environment.
[FR Doc. 99-20546 Filed 8-19-99: 8:45 am]
BILLING CODE 6560-50-P
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