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

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 261

[EPA 530–Z95–003; FRL–5149–6]

RIN 2050–AD99

Regulatory Determination on Cement

Kiln Dust

AGENCY: Environmental Protection

Agency.

ACTION: Regulatory determination.

SUMMARY: Today’s action presents the

Environmental Protection Agency’s

(EPA) regulatory determination on

cement kiln dust (CKD) waste. This

action is required by the Resource

Conservation and Recovery Act (RCRA).

EPA has concluded that additional

control of CKD is warranted in order to

protect the public from human health

risks and to prevent environmental

damage resulting from current disposal

of this waste. The primary

environmental concerns to be addressed

through additional controls are

documented damages to ground water

and potable water supplies, and

potential human health risks from

inhalation of airborne CKD and

ingestion via food chain pathways. The

Agency has decided to take a common

sense approach in imposing such

controls. In order to avoid duplication

among regulatory programs, the Agency

will use, as appropriate, its various

authorities under the Clean Air Act,

Clean Water Act, and RCRA to address

the relevant pathways of potential

contaminant releases from CKD.

Under Subtitle C of RCRA, the Agency

will develop a tailored set of standards

for CKD that controls releases to ground

water. The tailored standards will

protect human health and the

environment, while imposing a minimal

burden on the regulated community.

Until the tailored regulations are

published by the Agency, CKD will

retain the Bevill exemption and the

status of CKD under RCRA Subtitle C

will remain unchanged. Those cement

manufacturing facilities that burn RCRA

hazardous waste in their kilns will still

be required to test their CKD to see that

it remains unaffected by the combustion

of hazardous waste.

EPA has not included an evaluation of

clinker or other products or by-products

of cement production in this regulatory

determination. In the absence of the

CKD regulatory exemption, under

certain regulatory scenarios clinker

produced from re-introduced CKD could

be considered a hazardous waste.

However, as part of the regulations that

EPA will promulgate as a result of

today’s determination, EPA intends to

exclude clinker from regulation as a

derived-from hazardous waste when

CKD is re-introduced. At this time, EPA

has no indication that such clinker

poses an unacceptable threat to human

health or the environment.

ADDRESSES: Copies of this regulatory

determination and the supporting

record docket are available for public

inspection and copying at the RCRA

docket, 401 M Street, SW., Washington,

DC, Room M2616, 2nd floor, Waterside

Mall. The docket number for this action

is F–94–RCKD–FFFFF. The docket is

open from 9 to 4 p.m., Monday through

Friday, except federal holidays. In order

to access the docket, please call (202)

260–9327 to make an appointment.

Copies are free up to 100 pages and

thereafter cost $0.15/page.

This document and the Response to

Public Comments document are also

available on the EPA’s Clean-up

Information Bulletin Board (CLU–IN).

To access CLU–IN with a modem of up

to 28,800 baud, dial (301) 589–8366.

First-time users will be asked to input

some initial registration information.

Next, select ‘‘D’’ (download) from the

main menu. Input the file name

‘‘CKD6.ZIP’’ to download this notice.

Input the file names ‘‘CKD7.ZIP’’ and

‘‘CKD8.ZIP’’ to download the two files

that contain the two response to public

comments documents. Follow the online instructions to complete the

download. More information about the

download procedure is located in

Bulletin 104; to read this bulletin type

‘‘B 104’’ from the main menu. For

additional help with these instructions,

telephone the CLU–IN help line at (301)

589–8368.

FOR FURTHER INFORMATION CONTACT: For

general information, contact the RCRA/

Superfund Hotline at (800) 424–9346 or

(703) 412–9810; for technical

information contact Bill Schoenborn,

U.S. Environmental Protection Agency

(5302W), 401 M Street SW.,

Washington, DC 20460, at (703) 308–

8483.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background

A. Statutory Authority

B. Public Comment Process

C. Stakeholder Comments

II. Major Findings of the RTC and NODA

A. Sources and Volumes of Waste

B. Current and Alternative CKD

Management Practices

C. Existing Regulatory Controls

D. Waste Characteristics

E. Documented Evidence of Damage

F. Potential Risks to Human Health and the

Environment

G. Environmental Justice

H. Potential Costs and Impacts of Subtitle

C Regulation

I. Regulatory Options

III. Applying the Decision Rationale in

Making the Regulatory Determination

A. Step 1: Does Management of CKD Pose

Human Health and Environmental

Problems? Might Current Practices Cause

Problems in the Future?

B. Step 2: Is More Stringent Regulation

Necessary and Desirable?

C. Step 3: What Would be the Operational

and Economic Consequences of a

Decision to Regulate Under Subtitle C?

IV. Regulatory Determination for Cement

Kiln Dust

V. Next Steps

VI. Regulatory Flexibility Analysis

VII. Executive Order 12866

VIII. Regulatory Determination Docket

I. Background

A. Statutory Authority

EPA is issuing today’s notice under

the authority of section 3001(b)(3)(C) of

the Resource Conservation and

Recovery Act (RCRA), as amended. This

section requires that, after completing

the Report to Congress (RTC) mandated

by section 8002(o) of RCRA, the EPA

Administrator must determine whether

Subtitle C regulation of CKD waste is

warranted. The RTC documents EPA’s

study of CKD. It was signed by the

Administrator on December 30, 1993.

B. Public Comment Process

After submitting the RTC to Congress,

EPA provided the public with an

opportunity to comment on the report

and the appropriateness of regulating

CKD under RCRA Subtitle C (59 FR 709,

1/6/94). The public comment period

lasted until February 22, 1994 (59 FR

709, 1/6/94). Due to numerous requests

to lengthen the comment period, EPA

extended the comment period to March

8, 1994 (59 FR 6640, 2/11/94). To ensure

that all interested parties had an

opportunity to present their views, EPA

not only held a public hearing in

Washington, DC, but also held a series

of public meetings with representatives

of the cement industry, the hazardous

waste treatment industry, regional and

state environmental authorities, and

citizen groups.

EPA received approximately 1,100

written comments, 18 videotapes, and a

number of photographs prior to the

close of the RTC comment period. All

individual comments and a transcript

from the public hearing are available for

public inspection in the RTC docket

(Docket No. F–94–RCKA–FFFFF). The

docket also contains a summary of all

the comments presented at the public
Federal Register / Vol. 60, No. 25 / Tuesday, February 7, 1995 / Rules and Regulations 7367

meetings and public hearing, as well as

those submitted in writing.

To supplement the information

included in the CKD RTC, the Agency

analyzed the public comments and

undertook several additional data

collection and analysis efforts. The new

data generated by EPA were placed into

the RCRA docket for public inspection

and comment and a Notice of Data

Availability (NODA) was published in

the September 14, 1994, Federal

Register (59 FR 47133). The Agency

provided a 30-day comment period for

review of the new data and analyses.

The principal new documents placed in

the docket addressed the following

issues: Additional CKD damage cases;

environmental justice; analysis of CKD

generation and characteristics data;

costs of CKD management alternatives;

and human health and environmental

risks posed by CKD management.

Subsequent to issuing the NODA, EPA

identified certain errors and, in a

supplemental errata document,

corrected certain portions of the new

data pertinent to additional assessments

of potential risk from CKD waste. EPA

published a correction Notice on

October 11, 1994 (59 FR 51440) that

identified the corrections and provided

a public comment period on the

corrected materials until November 10,

1994.

In preparing both of these Notices, the

Agency made a special effort to make

the data accessible to the public. In

addition to placing this information in

the RCRA docket, the Agency posted

data files in electronic format on EPA’s

Superfund electronic bulletin board

(CLU–IN) and made these data available

on disk upon request.

Today’s decision is based on the RTC

and the data and analyses that underlie

the report, as well as on public

comments received during the public

hearing and public meetings, or in

written form submitted during the

comment periods, and EPA analyses of

these comments.

C. Stakeholder Comments

The Agency received over 1,100

public comments on the RTC on Cement

Kiln Dust and subsequent Technical

Background Documents from individual

companies and trade organizations

representing the cement industry and

their affiliated consultants, suppliers,

and waste fuel blenders; individual

companies and trade groups

representing the hazardous waste

incineration industry, and their

associated consultants; other companies

that handle CKD; public interest groups;

and private citizens.

Comments were received on a wide

variety of topics discussed in the RTC

and NODA including cement

production and CKD generation and

characteristics; current and alternative

CKD management practices;

documented damage and potential

danger to human health and the

environment; existing regulatory

controls on CKD management; and cost

and economic impacts of alternatives to

current CKD disposal practices. The

following is a brief summary of the

major positions presented in the public

comments. (A detailed response to all of

the comments is included in two

background documents that are

identified below.)

Companies and groups representing

the cement manufacturing industry

generally stated that CKD exhibits low

inherent toxicity and poses minimal risk

to human health and the environment.

They argued for continued management

of CKD using existing Federal and State

authorities, and urged the Agency to

work with the cement industry to

develop voluntary standards for the

management of all CKD.

Commenters from companies that

handle CKD stated that CKD has

numerous beneficial uses (e.g., as a

liming agent or sewage sludge stabilizer)

which would be detrimentally affected

by regulation of CKD as a hazardous

waste.

Companies and groups representing

the hazardous waste treatment industry

generally argued for an aggressive

regulatory determination for CKD. These

commenters generally favored removing

the exemption and immediately

imposing hazardous waste regulations

for the management of CKD, especially

dust from kilns that burn hazardous

waste.

Public interest groups generally stated

that current industry management of

CKD from kilns that burn hazardous

waste causes chronic human health

problems and extensive environmental

damages, including degraded water and

air quality, affecting local residents

around cement manufacturing facilities.

These commenters generally argued for

immediate adoption of hazardous waste

regulations for CKD generated from

hazardous waste-burning kilns.

Most of the comments from public

citizens were from residents living

around cement manufacturing facilities,

and the commenters were divided in

their position on CKD. Some

commenters expressed concern over

potential loss of jobs at plants in their

communities if CKD is regulated as a

hazardous waste. Others commenters,

generally residents who live around

cement plants that burn hazardous

waste, stated that releases of CKD from

plants in their communities are a visual

nuisance, degrade the air and

vegetation, and cause health problems

for themselves and their neighbors.

EPA has carefully reviewed all

comments in arriving at today’s final

determination. The Agency has

prepared a detailed summary of

comments received, along with

responses, in two background

documents that are available for viewing

in the RCRA docket. The first document,

titled Summary of and Responses to

Comments on the Report to Congress,

presents the public comments and the

Agency’s response to these comments

on the Report to Congress on Cement

Kiln Dust; the second document, titled

Summary of and Responses to

Comments on the Notice of Data

Availability, presents the public

comments and the Agency’s response to

the material announced in the NODA.

II. Major Findings of the RTC and

NODA

In this section, EPA briefly restates

some of the basic technical findings

presented in the RTC, as well as new

insights presented in the technical

background documents announced in

the NODA. These findings are generally

presented in categories that correspond

to the study factors listed in RCRA

section 8002(o).

A. Sources and Volumes of Waste

Information received by the Agency

since publication of the RTC (in

comments and from additional research)

suggests that, as of 1992, the domestic

cement industry consisted of 111 plants

operated by 46 companies. The five

largest cement clinker producing states

are California, Texas, Pennsylvania,

Missouri, and Michigan. The cement

industry burns large amounts of high

Btu fuels, primarily coal and other fossil

fuels, during the manufacturing process.

In 1990 and in 1992, 23 facilities also

burned hazardous waste as fuels.

Based on an analysis of existing data,

including data collected by the Portland

Cement Association and separately by

EPA under RCRA section 3007 authority

from operators of cement manufacturing

facilities, the Agency has determined

that, nationally, cement plants generate

large quantities of CKD. In particular,

EPA has estimated that in 1990, the

generation of gross CKD (i.e., CKD that

is collected by air-pollution control

devices) was 12.7 million metric tons.

There are, however, wide variations

among kilns and plants in the amount

of gross CKD generated per ton of

clinker.
7368 Federal Register / Vol. 60, No. 25 / Tuesday, February 7, 1995 / Rules and Regulations

1Texas is in the process of developing on-site

management standards for cement kiln dust and

expects to propose them in 1995.

2EPA hazardous waste identification rules do not

include a characteristic or definition for solid

corrosives.

In addition, there are also wide

variations among kilns and plants in the

amount of net CKD (i.e., CKD that is

either disposed or used beneficially offsite) that is generated. For example, 25

percent of the facilities produce

essentially no net CKD, while 10 plants

(about 10 percent of the population)

generate 40 percent of all net CKD.

Finally, the Agency also found that

the burning of hazardous waste is

correlated with the volume of dust that

is actually disposed. Kilns that burn

hazardous waste remove from the kiln

system an average of 75 to 104 percent

more dust per ton of clinker than kilns

that do not burn hazardous waste.

Regression modeling conducted by EPA

for the NODA analyses showed a

consistent, statistically significant

association between hazardous waste

fuel burning in cement kilns and

increased CKD generation on a gross,

net, and disposed basis. EPA’s work

does not establish the cause of this

statistical relationship between

hazardous waste fuel burning and CKD

generation. The Agency, however,

believes that increased CKD generation

is maybe due either to the burning of

hazardous waste, or to some other plantspecific operating factors such as the

composition of the raw material feed.

B. Current and Alternative CKD

Management Practices

Most of the gross CKD—8.2 million

metric tons, or 64 percent—was

recycled directly back into the kiln or

raw feed system in 1990. For that

portion of CKD that is disposed,

standard industry practice is to place it

in piles, quarries, or landfills, most of

which are unlined and uncovered. Some

active piles are also managed

underwater or adjacent to surface water

and/or agricultural lands. Although

most CKD removed from the kiln system

is disposed on-site, some is sold for offsite beneficial use. For example, in

1990, about 7 percent of CKD generated

(897,000 metric tons) was sold for offsite use, most of it as a waste stabilizer,

liming agent, or materials additive.

Cost-effective opportunities may exist,

however, to further reduce the amount

of CKD that is disposed by recycling it

back into the kiln. The Agency has

identified a number of pollution

prevention opportunities, including flue

gas desulfurization, fluid-bed dust

recovery, and leaching with water, that

may, in some instances, represent lowcost and potentially profitable

alternatives to CKD disposal. In

addition, the Agency has received some

evidence, in comments from cement

companies, that raw material

substitution may be a highly effective

means of increasing CKD recycling

rates. This may be done by controlling

the input of contaminants (in raw

materials and fuels) to the kiln system,

thereby reducing or eliminating the

need to purge the kiln system of

contaminants by removing larger

volumes of CKD from the system.

C. Existing Regulatory Controls

Federal statutes that potentially affect

CKD management include the Clean Air

Act (CAA), Clean Water Act (CWA), the

Resource Conservation and Recovery

Act (RCRA), and the Comprehensive

Environmental Response, Compensation

and Liability Act (CERCLA). Regulations

developed under authority of the CAA

and CWA impose controls on releases of

CKD to the air (via stack or fugitive dust

emissions, 40 CFR Part 50) and water

(National Pollution Discharge

Elimination System (NPDES), 40 CFR

Part 122, point source effluent

discharges, and 40 CFR Part 411,

effluent guidelines for cement

manufacturing facilities), respectively.

Under both RCRA and CERCLA, the

Federal government can respond where

the release of CKD or its constituents

may present an imminent and

substantial danger to human health or

the environment. CKD that is not

directly recycled is also subject to

regulation under Subtitle D of RCRA as

a solid waste. In addition, CKD

generating facilities that burn RCRA

hazardous waste in kilns are subject to

the RCRA Boiler and Industrial Furnace

(BIF) rule (40 CFR part 266) and other

RCRA requirements if the CKD from that

combustion is ‘‘significantly affected’’

by the hazardous waste fuel. See 40 CFR

266.112.

For states with the highest cement

production capacity (California,

Michigan, Pennsylvania, and Texas), the

Agency has found that CKD waste is

subject to some regulation under State

and local laws, but the requirements

vary significantly from State to State.

For example, California regulates CKD

as a non-RCRA hazardous waste, but has

suspended enforcement of the

management requirements for CKD that

fails the State’s hazardous waste

corrosivity test, pending the results of

further study of CKD and other

cementitious materials. Pennsylvania

regulates CKD as a residual waste,

requiring facilities to comply with sitespecific disposal requirements and

waste reduction strategies, which are

both periodically updated by the State.

In contrast, Michigan and Texas both

consider CKD an industrial nonhazardous waste. Michigan requires

permits, ground water monitoring, and

regular reports of ground water

sampling results, whereas Texas issues

non-enforceable guidance.1

D. Waste Characteristics

While CKD itself does not exhibit the

RCRA Subtitle C hazardous waste

characteristic of corrosivity (40 CFR

261.22) 2, EPA’s data show that mixtures

of CKD and water often exhibit the

characteristic of corrosivity. In

particular, runoff from precipitation that

contacts CKD storage and waste piles

generates considerable volumes of

wastewater. EPA data show that the pH

level in such precipitation runoff

typically exceeds 12.5 standard units,

the standard for the corrosivity

characteristic for hazardous wastes (40

CFR 261.22).

In addition, EPA’s analyses of CKD

show that CKD does contain certain

metals listed in Appendix 8

(‘‘Hazardous Constituents’’) part 261 of

RCRA. Table 1 presents the range of

total concentration levels for a number

of other toxic metals EPA has observed

in CKD.

TABLE 1.—Measured Metals Levels in CKD 1

[Mg/kg (parts per million), total basis]

Metal No. of samples Min. Mean Max.

Antimony ..................................................................................................................... 52 0.09 11.5 102

Arsenic ........................................................................................................................ 60 0.26 14.1 80.7

Barium ........................................................................................................................ 59 0.43 181 900

Beryllium ..................................................................................................................... 53 0.1 1.03 6.2
Federal Register / Vol. 60, No. 25 / Tuesday, February 7, 1995 / Rules and Regulations 7369

3The differences cited are those discernible at a

95 percent confidence level.

4While lead, cadmium, and chromium were

observed to be higher in CKD from facilities that

burn hazardous waste, generally the difference in

mean constituent concentrations by themselves are

not enough (i.e., do not differ by more than a factor

of about 2) to result in discernible risk estimates

between facilities that do and do not burn

hazardous waste, after considering other sitespecific factors affecting exposure (e.g., proximity of

exposure points, topography). The concentrations of

barium, chromium, and nickel in CKD are within

the typical range found in U.S. soils.

5A separate issue raised by commenters is

whether the TCLP adequately depicts the potential

for metals to leach from CKD. See the background

document to this Notice entitled Summary of and

Response to Comments on the Report to Congress

in the RCRA docket for a discussion of this issue.

6EPA received many comments on the specific

damage cases described in both the RTC and

subsequent NODA. Based on review of the damage

cases, except for only one reassessment, the Agency

believes the information received does not

contradict the Agency’s basic conclusions regarding

any of the damage cases.

TABLE 1.—Measured Metals Levels in CKD 1—Continued

[Mg/kg (parts per million), total basis]

Metal No. of samples Min. Mean Max.

Cadmium .................................................................................................................... 61 0.065 9.7 44.9

Chromium ................................................................................................................... 61 3.9 31.2 105

Lead 2 ......................................................................................................................... 63 3.1 287 2,620

Mercury ....................................................................................................................... 57 0.003 0.33 2.9

Nickel .......................................................................................................................... 45 3 19.9 55

Selenium ..................................................................................................................... 52 0.1 12.2 103

Silver ........................................................................................................................... 56 0.25 5.9 40.7

Thallium ...................................................................................................................... 57 0.44 33.6 450

1 Metals data sources include 1992 APCA survey, EPA sampling data, and public comments on the RTC.

2The median value for lead is 113 mg/kg.

For many of the toxic metals, the

concentrations detected in kiln dust

were not significantly different whether

the dust is generated from kilns that

burn or do not burn hazardous waste.

However, for lead, cadmium, and

chromium, the mean concentration

found in CKD generated by kilns that

burn hazardous waste is measurably

higher than in CKD from those kilns that

do not burn hazardous waste;

conversely, thallium and barium

concentrations are measurably higher in

CKD from kilns that do not burn

hazardous waste.3 4

With respect to organics, volatile and

semi-volatile compounds were generally

not found in CKD. However, levels of

2,3,7,8-substituted dioxin, and 2,3,7,8-

substituted dibenzofuran were detected,

although the concentrations were

generally low—ranging from 0.5 to 20

ppt for dioxin and non-detected to 470

ppt for furan. The calculated 2,3,7,8–

TCDD TEQ values for the facilities

sampled by EPA ranged from nondetected to 9 ppt.

Note: EPA sampling data for one cement

plant reported a total dioxins concentration

in CKD as high as 16 ppb, with a TEQ value

for the managed CKD of 195 ppt. The total

dioxins level measured for this plant were at

least 21⁄2 times higher than those found at

any of the other plants sampled by EPA.

In terms of potential constituent

solubility and release, leach test results

show that no significant distinction can

be made between CKD generated from

kilns that burn hazardous waste and

those that do not burn hazardous waste.

(This finding was corroborated for

metals in CKD by leachate test results

submitted to the Agency by the cement

industry.) For example, laboratory

analysis of CKD using the Toxicity

Characteristic Leaching Procedure

(TCLP) shows that trace metal

concentrations rarely exceed RCRA

toxicity limits, whether or not the CKD

is generated at kilns that burn hazardous

waste.5

E. Documented Evidence of Damage

Migration of potentially hazardous

constituents, including metals, has

occurred from CKD waste sites. In the

RTC and subsequent NODA, EPA

identified 14 cases of damage (10

documented and 4 potential) to surface

water and ground water and 36 cases of

documented damage to air from CKD

waste.6 By damage, the Agency means

that metal constituents have

contaminated ground water and/or

surface water, and/or air above a federal

or state standard (e.g., a maximum

concentration limit). Constituents of

concern that have been released to

ground and surface waters include

arsenic, chromium, and lead, among

others. When ground water and surface

water exceedances do occur, the

magnitude of the exceedance is variable,

going as high as two orders of

magnitude above the standard.

Environmental damage generally affects

the area in the immediate vicinity of the

waste disposal site. However, in some

cases, nearby wetlands and streams that

are off-site were also affected. For

example, excessive discharges from two

facilities in Mason City, Iowa caused

severe degradation of the aquatic habitat

in nearby Calmus Creek. Observed

releases are commonly chronic at sites

at which exceedances have been

documented. However, most of the

documented surface water damage cases

occurred prior to 1991, which was

before implementation of NPDES

general stormwater permits.

Information on environmental quality,

on which this evidence is based, is

limited by available data from each of

the 127 sites evaluated. For those sites

for which data were available, files

contained information on releases, but

little human exposure data.

Significantly, releases to ground water

were observed at all sites for which EPA

has received ground water monitoring

data; if there had been additional

ground water monitoring data from

other sites, further evidence of leaching

and contamination would likely have

been found. While the Agency has no

documented data on contaminant

transport off-site, or documented data

on human exposure and risk at the point

of drinking water use, this is because

the drinking water wells at these sites

are currently located far enough away,

and/or tap aquifers are isolated enough,

to be unlikely to intersect contaminated

ground water. To the extent that wells

would be drilled closer to the sites or

the contamination spreads, there is

potential that the wells would tap CKDcontaminated ground water. Waste

disposal practices at sites where water

damages have been documented include

management in waste piles, abandoned

quarries, or landfills, all of which were

unlined. Air damages are cited as

primarily due to mechanical failure of

dust handling equipment.
7370 Federal Register / Vol. 60, No. 25 / Tuesday, February 7, 1995 / Rules and Regulations

7 Documentation and detailed results of five case

study facilities are documented in the technical

background document for the NODA on human

health and environmental risk assessment (see 59

FR 47133). The documentation and detailed results

of the more recent work are presented in the

Technical Background Document on Potential Risks

from Cement Kiln Dust in support of the Cement

Kiln Dust Regulatory Determination, January, 1995.

This document is located in the RCRA docket No.

F–95–RCKD–FFFFF.

F. Potential Risks to Human Health and

the Environment

Based on an extensive data base

compiled from industry sources, Agency

field visits, RCRA section 3007

information requests, information

submitted in comments, literature

reviews, and other public sources, the

Agency conducted a series of risk

screening and site-specific risk

modeling studies to evaluate potential

risks from on-site management and offsite uses of CKD. Methodologies and

results of these studies were

documented in Chapter 6 of the RTC

and its related technical background

document and in two subsequent EPA

technical background documents titled

Human Health and Environmental Risk

Assessment in Support of the

Regulatory Determination on Cement

Kiln Dust (August 31, 1994) and

Supplemental Errata Document for the

Technical Background Document for the

Notice of Data Availability on Cement

Kiln Dust (September 30, 1994).

Principal findings from these studies

include the following:

• Among a sample of 83 plants for

which EPA had sufficient data to

conduct a site-specific risk screening

evaluation for metals in CKD, the

Agency predicted only low or negligible

risk potential from on-site management

of CKD via conventional direct

pathways of constituent transport and

exposure (drinking water, incidental

direct ingestion, chemical inhalation)

via ground water contamination, surface

water runoff to streams or lakes, or

windblown dust. However, there are

three principal and important

qualifications to these direct pathway

findings:

• As noted above, EPA has found

empirical evidence of ground water

contamination near the management

unit at each cement manufacturing

facility where ground water quality data

exist; these sites are located in both

areas of karst and non-karst terrain.

• According to U.S. Geological

Survey maps and other sources, about

half of all cement plant sites are

underlain by limestone formations in

areas of karst landscape. These

limestone formations may have fissures

caused by rock dissolution along joints

or bedding planes with hydraulic

characteristics that allow leachate to

directly enter ground water aquifers

without substantial dilution or

attenuation. Available ground water

pathway modeling techniques are not

applicable under these conditions. This

does not necessarily mean that ground

water contamination will occur at these

cement plants (although that would be

consistent with some of the damage

cases); however, it should be regarded

as a significant qualification to the

general findings of low or negligible risk

from the ground water pathway risk

modeling results.

• In its follow-up work leading to the

NODA, EPA did find evidence of

possible risk to human health due to the

fine particulate nature of inhaled dust.

Although the Agency’s direct inhalation

exposure modeling studies described in

the RTC did not indicate significant risk

from inhaled chemical constituents in

CKD, subsequent screening-level

modeling on a small number of plants

did indicate that windblown dust from

uncontrolled CKD waste management

units could exceed EPA’s health-based

fine particulate (10 micron or less)

National Ambient Air Quality Standard

(NAAQS) at plant boundaries, and

potentially at nearby residences. Results

from a more recent extension of this

work to a larger sample of 52 cement

plants suggest that 28 of the plants

could exceed NAAQS standards at plant

boundaries, if the plants do not have

effective dust control mechanisms.7

Although quantitative risks presently

can not be estimated, these initial

modeling results relating to fine

particulates suggest cause for concern

and argue for further attention to this

source of fugitive dust.

• The Agency also modeled health

risks via indirect food-chain pathways

(i.e., risks from ingestion of crop or

livestock products or fish containing

CKD-derived chemical contaminants).

These contaminants reach the food

chain as part of storm water run-off and/

or wind erosion from uncontrolled CKD

storage or disposal areas to nearby water

bodies and farm fields. The Agency’s

indirect pathway methodology is

relatively new, complex, and still under

refinement and peer review. Therefore,

the reported results must be regarded as

preliminary and subject to substantial

uncertainties. However, the

methodology represents the best

available approach for evaluating these

potential risk pathways of interest.

EPA’s indirect food chain risk

modeling estimated that potential

individual cancer risks in the 1×10¥5 (1

in 100,000) to 1×10¥3 (1 in 1,000) range

to highly exposed subsistence farmers

and subsistence fishers from CKD

metals (principally arsenic) could occur

at about 12 percent of the 83 cement

plants studied. Similar risk levels due to

dioxins are also possible at some

additional sites, although the Agency’s

data base on dioxin concentrations in

CKD was not extensive enough to

conduct a similar large sample study. In

addition, about 18 percent of the plants

(mostly the same plants with the higher

estimates for cancer risks) were

estimated to have potential non-cancer

hazard ratios greater than 0.1 for highly

exposed potential farmer/fisher

individuals. That is, they would

contribute enough of a toxic metal such

as cadmium, chromium, or thallium

through a possible food source (fish,

vegetable, or beef and milk source) to

equal one-tenth of a subsistence

individual’s allowable health-basedstandard intake from all sources. In a

few instances, a toxic metal food chain

exposure was estimated to exceed a

non-cancer health based standard by

more than a factor of 100. Preliminary

analysis presented in the September

1994 technical background document

also suggested possibilities for elevation

of blood lead levels in children living

near uncontrolled CKD piles, due to

food chain exposures.

These indirect pathway risk estimates

are based on current standard Agency

methods to account for toxic metals and

dioxins to be bio-concentrated in plant

and animal components of foods for

human consumption. The Agency did

not have direct data on local food

consumption patterns for backyard

gardeners, subsistence farmers, or

recreational or subsistence fishermen in

areas of potential exposure. In this

instance, standard Agency assumptions

(as documented in the RTC and

background document) regarding

consumption rates of home-grown beef,

dairy products, vegetables and familycaught fish were used to estimate

exposures to these potentially affected

consumers.

The particular sites selected for

indirect pathway analysis from among

the 83 plants in EPA’s study were

carefully screened with respect to the

potential for CKD releases from

currently active piles and exposures via

land, air, and surface water pathways.

Proximity to nearby streams or lakes (for

possible risk via fish ingestion) and

distance to actual farm fields and rural

dwellings likely to have gardens (for

potential exposures from home grown

vegetables and/or beef and milk) were

determined from a variety of sources,

including company-provided maps, U.S.

Geological Survey maps, and aerial

photographs.
Federal Register / Vol. 60, No. 25 / Tuesday, February 7, 1995 / Rules and Regulations 7371

8For purposes of this report, subsistence farmers

and subsistence fish consumers are those whose

diets are very heavily dependent on home-grown

foods or locally caught fish. Particularly high

exposures to contaminants can result from

bioaccumulation of toxic constituents in the locallygrown farm products or fish, compounded by a high

proportion of these foods in the diet.

EPA’s risk assessment work did not

explicitly consider the potential for

changes in population around CKD

management units, which would alter

future direct and indirect exposure

potentials. Proximity to the source is

one of the more important determinants

of risk, and many cement plants are

experiencing encroachment by human

populations.

• The Agency also studied several offsite beneficial uses of waste dust. Most

current off-site uses, such as for waste

stabilization or general construction, are

either currently regulated (under RCRA

for hazardous waste stabilization, or

under the Clean Water Act in the case

of municipal sewage sludge) or appear

to present low risk due to low exposure

potential. However, one current use—as

a lime/fertilizer substitute on

agricultural fields—was found to

present some potential for indirect food

chain risk under plausible exposure

modeling assumptions for highly

exposed farmers.

As reported in the RTC and the

December 1993 technical background

document, median industry-wide CKD

constituent concentration values for

metals and dioxins did not yield cancer

or non-cancer human health risks of

concern when modeled using current

Agency indirect food chain modeling

procedures and a normal land

application rate of two tons of CKD per

acre every three to five years. However,

cancer risks for subsistence farming in

excess of 1×10¥4 (1 in 10,000) were

estimated when high-end (upper 95th

percentile) reported constituent

concentration levels for metals and

dioxins were used.

Again, these indirect exposure results

should be reviewed with caution due to

the substantial uncertainties involved in

this risk modeling methodology, which

is still under refinement and peer

review. The Agency believes, the results

do suggest the need for further study

regarding possible human health

implications from this current off-site

use of CKD.

G. Environmental Justice

As part of its analysis of risks to

human health posed by CKD, the

Agency investigated whether there are

environmental justice issues associated

with the management of CKD. Executive

Order 12989, dated February 11, 1994,

and titled ‘‘Federal Actions to Address

Environmental Justice in Minority

Populations and Low-Income

Populations,’’ directs federal agencies to

consider environmental justice issues.

The Agency’s risk modeling results

indicate that subsistence farmers and

subsistence fish consumers would be

most susceptible to the risks posed by

the management of CKD.8 In the RTC,

EPA solicited comment on the

prevalence of these activities around

existing cement manufacturing

facilities. The Agency also requested

comment on environmental justice

issues (i.e., the fair treatment of people

of all cultures, incomes, and educational

levels with respect to protection from

environmental hazards) associated with

the management of CKD.

As part of the NODA, EPA announced

the availability of a report titled Race,

Ethnicity, and Poverty Status of

Populations Living Near Cement Kilns

in the United States. The report

includes numerous analyses and

summaries of the demographics data,

and is available in the RCRA docket.

One analysis indicated that, of the

facilities studied, approximately threefourths of the sites have a minority

population at or below the national

average of 24 percent living within one

mile of the facility while the remaining

sites had minority populations higher

than the national average living within

a mile of the site. With regard to poverty

level, approximately 54 percent of the

facilities had less than 13 percent of the

population (national average) living

below the poverty level within one mile

of the facility while 46 percent of the

facilities had more than 13 percent of

the population living below the poverty

level within one mile of the facility.

H. Potential Costs and Impacts of

Subtitle C Regulation

The analysis presented in the RTC

indicates that if CKD were managed as

a RCRA hazardous waste under the full

Subtitle C regulatory scheme, including

minimum technology (RCRA section

3004(o)) and land disposal restriction

requirements (RCRA section 3004(d–g)),

there would most likely be significant

compliance costs for a substantial

number of cement plants. Costs would,

however, vary considerably, depending

on individual plant efficiencies in

converting raw materials into finished

cement. For the 25 percent or so of U.S.

cement plants that presently generate

little or no wasted dust for on-site

disposal, compliance costs for CKD

would be negligible. For the remaining

75 percent, the Agency estimates the

annualized incremental compliance

costs at between $2 million and $14

million per year per plant (not including

corrective action), depending on an

individual plant’s current CKD quantity

and local landfill construction

conditions. This range for typical

annual plant costs translates into $3 to

$28 per ton of cement, or 6 to 56 percent

of a plant’s annual gross value of sales

(at a nominal selling price of $50 per ton

of cement).

Such high costs are a result of the

relatively high waste-to-product ratios

among plants in this industry and the

high unit compliance costs for the full

Subtitle C technology. Costs at

individual plants might be reduced if

facility operators could decrease net

waste generation rates by improving

basic plant efficiencies, substituting

lower alkali raw materials, or

implementing dust reclamation and

recycling technologies, as discussed in

Chapters 8 and 9 of the RTC. The extent

to which these pollution prevention

options can be implemented

economically, however, is uncertain.

For those facilities with high CKD

generation rates that cannot reduce their

waste-to-product ratios economically,

costs for the full Subtitle C scenario

would be prohibitively high, and a

substantial portion of the industry could

become noncompetitive. Projected

impacts under this regulatory scenario

suggest a substantial curtailment of

domestic cement capacity and

production, a shift in market share

towards the more efficient domestic

producers, higher prices for cement in

most regions of the country, and

substantially increased imports.

Important secondary impacts on

regional construction industries and on

small communities affected by cement

industry employment losses also would

be projected.

The costs of managing CKD as a

hazardous waste would be reduced if

certain Subtitle C requirements (e.g.,

land disposal restrictions, minimum

technology requirements for managing

CKD) were modified. In the RTC, the

Agency speculated that plant-level costs

under this scenario might amount to

one-third to one-half the cost of full

Subtitle C for typical plants with

median to high CKD generation rates.

Alternative, more tailored standards

were estimated to require even lower

compliance costs, particularly for

favorably located plants or plants

already employing available

containment measures. Depending upon

specific requirements, the costs for these

types of controls generally were less

than one percent of the industry cement

sales value, although they could be

higher for some facilities located in

areas of karst terrain, which might
7372 Federal Register / Vol. 60, No. 25 / Tuesday, February 7, 1995 / Rules and Regulations

9For a discussion of EPA’s approach in

combining the RCRA study factors, see the

discussion of the Agency’s approach in the Final

Regulatory Determination and Final Rule for

Special Wastes From Mineral Processing (56 FR

27300, June 13, 1991).

require more extensive ground water

protection measures.

In addition to these two lower-cost

versions of a possible Subtitle C land

management option, the cement

industry suggested, in public comment,

a ‘‘voluntary contingent management

practice’’ proposal, that was estimated

by industry representatives to cost

between $5 and $14 per ton of CKD at

various plants and to average about $10

per ton. Although EPA has not been able

to confirm these estimates, this land

disposal technology would, using the

industry’s cost figures, require an

average industry-wide compliance cost

of about one percent of gross cement

sales.

Though by no means negligible, costs

averaging one per cent of sales would

not imply the dire consequences for the

industry that would be suggested by the

full Subtitle C regulatory scenario.

In addition, cost effective dust

reduction and reclamation options

remain a possibility under any of the

regulatory scenarios discussed. Industry

representatives in public comment have

challenged the efficacy and cost

effectiveness of these waste reduction

and recovery options. Nevertheless,

operational prototypes do exist and

technologies such as the

Passamaquoddy flue-gas scrubber and

alkali leaching (both described in

Chapter 8 of the RTC) do show benefits

in stack gas pollution control and/or byproduct sales to help offset capital and

operating costs, as well as reducing

basic raw material requirements.

Further examination of the economics of

the Passamaquoddy recovery scrubber,

as reported in the September NODA

document, indicated that prospective

unit costs for plants with lower CKD

quantities would be higher than

originally estimated in the RTC.

However, otherwise, the Agency

continues to believe that this and other

alternatives can potentially serve as

technically and economically viable

options to land disposal of CKD, at least

for some plants.

I. Regulatory Options

Based on the findings of the RTC, the

Agency considered a number of options

for the management of CKD. These

options represent a range of

requirements for management of CKD

waste. From these, the Agency chose to

highlight five specific options,

including three in which CKD would be

managed under RCRA Subtitle C. (For

more detail on the options, see 59 FR

709, 1/6/94.) The specific options are:

Option 1: Retain the CKD exemption.

Option 2: Retain the CKD exemption,

but the Agency would enter into

voluntary agreements with the industry

whereby they would implement dust

recycling technologies, reduce waste,

and monitor and control CKD

management and use.

Option 3: Remove the CKD

exemption, but delay implementation

for some period of time (e.g., two years)

that would allow industry time to

employ pollution prevention measures.

Option 4: Remove the CKD

exemption, and implement the

compliance measures within six

months.

Option 5: Promulgate tailored

regulatory standards for the

management of CKD waste under

Subtitle C of RCRA.

In presenting this list of options, the

Agency noted that control of CKD under

Subtitle C may not be warranted or

appropriate if other statutes

administered by EPA (such as the Clean

Water Act, Clean Air Act, or Toxic

Substances Control Act) are better

suited to address the concerns identified

in the RTC. The Agency indicated that

these statutes were also being

considered in the Agency’s decision to

either retain or remove the CKD

exemption.

III. Applying the Decision Rationale in

Making the Regulatory Determination

In its decision making process, the

Agency’s approach was the same as for

previous special waste determinations 9.

As explained in the RTC, the study

factors were evaluated in a step-wise

sequence to arrive at a decision. This

approach allows EPA to make a

systematic evaluation of the information

presented in the RTC, the notices, and

in all public comments. The Agency has

carefully evaluated all comments

received in making its decision. (All of

the comments received on the RTC, the

NODA, and the correction notice are

addressed in the background documents

titled Analysis of and Responses to

Comments on the Report to Congress on

Cement Kiln Dust and Analysis of and

Consolidated Responses to Comments

on the Notice of Data Availability,

which are available in the RCRA

docket.)

The Agency considers its step-wise

methodology to be consistent with

Congressional intent that EPA consider

all the study factors listed in RCRA

section 8002(o). In addition, EPA

received no substantive comments on

the RTC that disagreed with any aspect

of its decision methodology. Therefore,

no changes have been made in the

approach.

The step-wise process that the Agency

applied to the available information is

presented below.

A. Step 1: Does Management of CKD

Pose Human Health and Environmental

Problems? Might Current Practices

Cause Problems in the Future?

The initial component of the Agency’s

decision making process is to determine

whether CKD either has or may

adversely impact human health or the

environment. To resolve these issues,

EPA has posed the following key

questions:

Substep 1. Has CKD as Currently

Managed, Caused Documented Human

Health Impacts or Environmental

Damage?

The Agency has determined that CKD

has caused documented impacts (and

may continue to cause impacts) at levels

of concern. As explained in the RTC,

danger to human health and the

environment is defined to include

various effects associated with the

management of CKD, including acute

and chronic human health effects,

significant impairment of natural

resources (e.g., contamination of a

source of drinking water), degradation

of natural ecosystems and habitats, and

detrimental impacts to terrestrial or

aquatic fauna. A case is considered

proven if damages are documented as

part of a scientific investigation,

administrative ruling, or court decision.

In its examination of cases of damage to

human health and the environment, the

Agency identified fourteen cases of

ground water and/or surface water

contamination (10 documented and 4

potential), including two sites that are

listed on the CERCLA (Superfund)

National Priorities List (NPL). In each

case, there is information available to

indicate that on-site surface water and/

or ground water has been affected by

CKD management units. Typical

impacts include elevated pH, total

dissolved solids, and sulfate above

secondary federal or state concentration

limits as well as elevated levels of

certain potentially toxic metals such as

arsenic, cadmium, chromium, and lead

that are above primary drinking water

MCLs.

One of the NPL sites with ground

water damage is in an area of karst

terrain. The RTC described a release at

this site of contaminants to ground and

surface water through a ‘‘blowout’’ (i.e.,

sudden discharge) into a nearby creek

that resulted in increased turbidity and

an abrupt decline in stream biota
Federal Register / Vol. 60, No. 25 / Tuesday, February 7, 1995 / Rules and Regulations 7373

downstream of the release. An

investigation by the facility showed

waste kiln dust to be the original source

of contamination. Since the site is in an

area of karst terrain, it is both logical

and reasonable to believe that the waste

dust rapidly migrated through discrete

channels in the bedrock, with minimal

attenuation, to the point of the blowout.

The fact that this occurred at the site

suggests EPA’s MMSOILS ground water

model is not suitable for karst type

terrain, since the model assumes ground

water migration through bedrock that is

uniformly porous, and lacks discrete

channels.

Of particular concern to the Agency is

the extent of documented contamination

of ground water. Even though limited

information exists on ground water

contamination due to a lack of

monitoring programs at most sites, each

case with available information on

ground water shows contamination at

levels of concern. Only 17% of all

cement manufacturing facilities have

ground water monitoring systems

around their dust management units.

These plants are considered to be

representative of the industry. Thus, the

Agency considers it likely that more

damages exist, even though it did not

conduct a detailed investigation of

ground water beneath all CKD waste

management units.

Environmental damages can also be

attributed to particulate emissions of

CKD from quarries, haul roads, and CKD

handling equipment (screws, conveyors,

and trucks), and are traceable to kilns

that do and do not burn hazardous

waste. Several commenters on the RTC

indicated that air dispersion of CKD was

a significant source of pollution to local

residents living around cement

manufacturing facilities. In addition, the

RTC identified numerous citizen

complaints of excessive particulate

matter from cement plant operations

collecting on cars, lawns, gardens,

chairs, and other personal property of

area residents. While developing the

RTC, the Agency reviewed numerous

letters in state files from residents living

near cement kilns who complained of

fugitive dust emissions (which may be

due to release of CKD from plant

operations and/or dust disposal piles).

Although the Agency recognizes that

dust from mining and quarry operations

could contribute to the particulate

emissions from a cement plant, other

evidence (i.e., damage cases) indicates

that fugitive CKD emissions are a

substantial contributor to environmental

damages in the form of air quality

degradation.

Substep 2. Does EPA’s Analysis Indicate

That CKD Could Pose Significant Risk to

Human Health or the Environment At

Any of the Sites that Generate It (or In

Off-Site Use), Under Either Current

Management Practices or Plausible

Management Scenarios?

The Agency’s analysis indicates that

there are potential risks warranting

concern, from both current on-site

management practices and certain offsite beneficial uses. In the RTC and

NODA documents, the Agency reported

on plant-specific risk screening and

quantitative risk modeling conducted to

evaluate potential risks from current

and plausible future management of

CKD. As summarized in the findings

above, current on-site land management

practices appear generally to pose

relatively low risks to human health via

direct pathways of contaminant

transport and exposure.

However, with respect to possible

ground water contamination, a large

percentage of cement plants (and CKD

management units at those cement

plants) are located in areas of karst

terrain, many of which may be

underlain by bedrock with hydrological

characteristics conducive to relatively

direct leachate transport to off-site

locations. In karst aquifers,

contaminants can potentially migrate

long distances through open conduits

with little of the filtration, adsorption,

and dispersion that are typical of

contaminant dispersal in porous

bedrock.

In addition, modeling of windblown

dust from CKD management areas

suggests that dust piles, when

uncontrolled (i.e., uncovered and dry),

may typically release sufficient

quantities of fine particulates to exceed

health-based National Ambient Air

Quality Standards (NAAQS) at plant

boundaries, and sometimes as far away

as nearby residences.

The Agency’s quantitative modeling

of ‘‘indirect’’ food chain pathways, both

aquatic and agricultural, indicates

potential human health effects, both

cancer and non-cancer. A wide range of

chemical constituents, including

arsenic, cadmium, chromium, barium,

thallium, lead, and dioxins, were

indicated as constituents of concern at

various plants. Because some CKD

disposal units are located near, and in

some instances immediately adjacent to,

farm fields, rural residences with

gardens, or surface waters containing

fish, there is potential for indirect risk

from the consumption of CKDcontaminated beef, vegetables and fish,

as well as ingestion of CKDcontaminated water during recreational

swimming.

Although limited by available data

and assessment methodology, the

Agency’s risk assessment studies also

indicated potentials for adverse aquatic

ecological effects due to possible

chemical releases to streams and lakes

adjacent to some cement plants. Aquatic

ecological damages due to siltation and

sedimentation were not specifically

studied in the risk assessment, but were

observed in field visits and reported as

a problem in damage case documents

and in public comments.

The Agency’s risk assessment for offsite beneficial uses of CKD indicated

that, except for direct application as a

lime/fertilizer substitute, most off-site

uses do not pose significant risks. Direct

cropland application, however, occurs

at a number of locations in the country

and is essentially unregulated at the

state and federal levels. Analysis

suggests that, at plausible application

rates, CKD that contain sufficiently high

concentrations of arsenic or other metals

or dioxins (as documented in the

Agency’s CKD constituent data base),

could cause food chain risks of concern

that may warrant some type of

regulation for these off-site uses.

Substep 3. Does CKD Exhibit Any of the

Characteristics of Hazardous Waste?

Although all of the toxicity

characteristic (TC) metals (arsenic,

barium, cadmium, chromium, lead,

mercury, selenium, and silver) were

detected in CKD, CKD exhibits the

toxicity characteristic infrequently, and

only for certain metals. This is based

analysis of the CKD analytical data

available to the Agency. Although CKD

itself is not corrosive under EPA’s rules

because it is a solid, water-CKD

mixtures are highly alkaline. Data

presented in the RTC indicate that the

pH of CKD leachates (using standard

EPA leach test procedures) are typically

between 11 and 13 standard units. In

addition, the elevated pH of a CKDwater mixture is a prominent factor in

10 out of 14 cases of damage

(documented and potential) to surface

water and/or ground water. In six of

these cases, including the ground water

damages described for the two plants

listed on the NPL, CKD-water mixtures

are reported to have a pH exceeding the

EPA standard of 12.5 for corrosive

hazardous waste (40 CFR 261.22).

The results of Step 1 of the decision

process indicate that CKD has posed

and may continue to pose risks to

human health and the environment

under plausible management scenarios.

Releases have occurred and may

continue to occur as a result of current
7374 Federal Register / Vol. 60, No. 25 / Tuesday, February 7, 1995 / Rules and Regulations

10The Clean Air Act is implemented through the

State implementation plan (SIP). As explained in

the RTC, the Clean Air Act as amended (see section

110(a)(2)) requires an acceptable SIP to contain

detailed provisions to address: Emission limitations

and control measures; monitoring requirements,

review of new and modified sources for compliance

with new source performance standards, prevention

of significant deterioration, and non-attainment

review; adequate legal authority; and a permit

program.

11One plant has submitted a video to the Agency

that indicates that its CKD management practices

have changed.

12A general description of these emissions can be

found in the EPA CKD sampling trip reports which

are located in the support section of the RCRA

docket on the Report to Congress, Docket No. F–94–

RCKA–FFFFF.

management practices (e.g.,

management of CKD in unlined,

uncovered piles near shallow ground

water and surface water bodies), posing

risk to human health and the

environment.

B. Step 2: Is More Stringent Regulation

Necessary and Desirable?

EPA evaluated State and Federal

regulations pertaining to CKD waste.

The Agency has determined that the

answer to this question is yes, more

stringent regulation of CKD is necessary

and desirable.

Substep 1. Are Current Practices

Adequate to Limit Contaminant Release

and Associated Risk?

The Agency has determined that

current practices are inadequate to limit

contaminant releases and associated

risks. CKD is now managed primarily

on-site in non-engineered landfills,

piles, and ponds. Many piles and

landfills lack liners, leachate controls,

or run-on/run-off collection systems. In

addition, while dust suppression

measures exist at many facilities, it

appears that they are generally

ineffective at controlling airborne

releases of CKD.

Substep 2. Are Current Federal and

State Regulatory Controls Adequate to

Address the Management of CKD?

The Agency has determined that

Federal and State regulatory controls

need to be improved for the proper

management of CKD. Some existing

regulations do apply to CKD piles, but

are rarely tailored to the cement

industry. In addition, problems with

repeated releases of CKD to the

environment suggest that

implementation of existing regulations

is uneven.

The Agency has analyzed the

application of regulations and standards

under the Clean Air Act (CAA) for

cement manufacturing facilities.

Implementation of the CAA

requirements varies from State to State.

In addition to the baseline Federal

requirements,10 each of the four States

studied in the RTC selectively

implements more stringent standards on

a case-by-case basis. For example,

California regulates two more pollutants

than required under the NAAQS.

Pennsylvania has fugitive dust controls

as a permit condition and discourages

the open storage of CKD.

The Agency believes that there are

adequate existing authorities in the

Clean Air Act to address risks via the air

pathway posed by the management of

CKD. However, there appears to be a

need for increased regulation and

implementation under the Clean Air

Act. The Agency has information that

indicates releases of particulate

emissions at cement plants are common,

persistent, and continuing. The RTC

documents 21 incidents of CKD releases

at 13 facilities. With the exception of

one case that involved fugitive dust

emissions from a CKD pile, all cases

involved visible emissions violations

(opacity) related to equipment

malfunctions associated with CKD

handling equipment (kilns, baghouses,

screw conveyors) 11. In addition,

persistent releases of CKD are

documented in the Agency’s NODA for

one facility in Pennsylvania. This

facility was cited for 16 air emissions

violations between March 1983 and

June 1989. Also, significant releases of

airborne particulates at other facilities

were frequently observed first-hand by

Agency staff during the course of this

study 12.

Numeric standards for point source

discharges of wastewater from cement

facilities have been established under

the Clean Water Act, and are

administered through the NPDES permit

program (40 CFR part 122) along with

industry-tailored effluent limitations for

runoff from materials storage piles (40

CFR part 411). Indirect discharges via

publicly owned treatment works

(POTWs) are subject to general

pretreatment standards under 40 CFR

part 403. Wastewater discharges from

individual facilities may also be subject

to state water quality standards and

state or local effluent discharge

standards.

In addition, EPA proposed a multisector stormwater general permit under

the NPDES program on November 19,

1993 (58 FR 61146). The proposed

permit contains limits to control

effluent discharges specific to the

cement industry (among other

industries) and requires each plant to

develop facility-specific pollution

prevention plans and demonstrate best

management practices (BMP) to

minimize the contact between

stormwater runoff and CKD or other

pollutant sources, or else remove CKD

(or other constituents) before the

stormwater is discharged. This permit

will be in addition to previously issued

and effective storm water baseline

general permits that were issued in 1992

by EPA and between 1991 and 1993 by

the 40 states with authorized NPDES

programs. The final multi-sector storm

water general permit is expected to be

issued by EPA in early 1995.

With respect to ground water, there

are no Federal standards that are

adequate to address the risks posed by

CKD via the ground water pathway. The

Safe Drinking Water Act (42 U.S.C. 300

f–j) protects drinking water by setting

maximum contaminant levels (MCLs)

for toxic contaminants, including

metals. However, drinking water

standards are only protective at the

point of consumption. Public water

supply wells are protected through the

wellhead protection program under the

SDWA (41 U.S.C. 300h–7(e)).

Of the states studied in the RTC, three

(California, Michigan, and

Pennsylvania) have primacy for

implementing the NPDES program. The

program in Texas is administered by

EPA but incorporates more stringent

Texas water quality requirements. These

four states have ground water protection

programs that set non-degradation of

ground water quality as a goal. In

addition, Texas implements an EPAapproved wellhead protection program.

Water quality regulations vary from

state to state. California’s water quality

program includes long range resource

planning, annual inspection of all

facilities, and compliance with stringent

surface water and ground water quality

standards. The California program also

grants broad enforcement authority to

its State Water Resources Control

Boards. Pennsylvania and Michigan

inspect major industrial dischargers

(including some cement plants)

annually, and enforce permit

requirements. In addition, Michigan

requires compliance with ground water

quality standards. Pennsylvania

approaches ground water protection

through permit requirements for

wastewater and stormwater discharges,

but has no separate ground water

quality standards. In Texas, cement

plants are considered ‘‘minor’’ facilities

and are not inspected annually like all

facilities that have major discharges,

unless the facility burns hazardous

waste, has a past record of

environmental violations, or has a

complaint filed against it. However,

Texas is considering requiring
Federal Register / Vol. 60, No. 25 / Tuesday, February 7, 1995 / Rules and Regulations 7375

13 In fact, the Agency believes that once the storm

water permits are fully implemented, no further

water permits or regulations will be needed to

address releases to surface water.

subsurface investigations at all facilities

that dispose of CKD as part of an effort

to establish minimum technical

standards for the on-site management of

CKD.

The Clean Water Act, through existing

effluent guideline regulations, NPDES

permits, water quality standards, and

existing and forthcoming storm water

permits, provide considerable authority

to control risks associated with

contamination of surface waters by the

management of CKD.13 However, EPA

has identified releases of CKD to surface

waters, and to ground water as well. In

its investigation of CKD waste, the

Agency uncovered 14 cases of water

damage, of which seven involved

ground water. Both ground water and

surface water damages were major

factors cited for including two CKD

disposal units on the CERCLA NPL.

Furthermore, only 17% of all CKD

management units nationwide have

ground water monitoring systems, while

25 of 91 cement manufacturing facilities

(27 percent) were reported in a 1991

industry survey to be located within one

mile of a public drinking water well.

Based on the above analysis, the

Agency believes the following factors

warrant additional environmental

controls for CKD: (1) The general lack of

current regulations applicable to

contaminant discharges to ground water

for protection of human health and the

environment; (2) the general lack of

ground water monitoring systems at

CKD disposal units; and (3) the

existence of damages to ground water

and air that are persistent and

continuing, and for which no

requirements exist to address the risks

posed via these pathways.

At the federal level, authorities exist

to address site-specific problems posing

imminent and substantial danger to

human health or the environment under

RCRA section 7003 and CERCLA

sections 104 and 106. However, the

Agency believes that cost-effective

controls that prevent contamination are

preferable to cleaning up after

contamination and damages occur.

C. Step 3: What Would Be the

Operational and Economic

Consequences of A Decision To

Regulate Under Subtitle C?

The Agency has determined that

industry-wide regulation of CKD under

full Subtitle C, including land disposal

restrictions, would impose extremely

high costs on a substantial portion of the

U.S. cement industry. While the Agency

believes that CKD waste minimization

and reclamation/recycling options exist

that could limit the cost exposure for

many plants, there is considerable

uncertainty and disagreement at this

time regarding their general technical

availability and ability to serve as low

cost substitutes for land management of

CKD.

Thus, it is likely that full Subtitle C

regulation could impose compliance

costs in excess of 20 percent of sales

value for a significant part of the

industry and a resulting inability to

compete. Expected economic

consequences include a combination of

reduced domestic cement capacity and

production, sharply higher prices for

cement (particularly in interior regions

of the country), and substantially

increased imports. Substantial adverse

secondary effects on regional

construction industries and on

communities experiencing losses in

cement industry-related employment

could also be expected.

Thus, based on the factors in RCRA

section 3001(b)(3) and section 8002(o),

full RCRA Subtitle C regulation is

unwarranted. However, the Agency also

believes that special Subtitle C

regulations tailored to local cement

plant conditions could be developed

using the broad regulatory flexibility

provided by RCRA, including section

2002, section 3001(b)(3)(C), and section

3004(x). These regulations could be

based on either technology or

performance standards or a combination

of both. These regulations could be

implemented at far lower cost at most

plant locations requiring controls to

prevent contamination of ground water.

In addition, regulations for CKD to

prevent releases to the air can be

improved or implemented under CAA

authority, and releases to surface water

are regulated under CWA authority.

These authorities provide the Agency

with additional flexibility to prevent

releases of CKD to the environment,

while at the same time minimizing the

burden on the regulated community.

The cement industry’s voluntary CKD

management proposal, submitted as a

comment on the RTC, tends to support

this conclusion. This tailored program

for constructing and operating CKD

monofills would include the following

site-specific features: a hydrogeological

assessment, water inflow modeling,

ground water monitoring, surface water

management in accord with NPDES and

storm water discharge permits, run-on/

run-off controls, fugitive dust emissions

control measures, personnel training, a

written closure plan, financial

assurance, and post-closure care,

including security and maintenance and

repair of the cap and vegetation as

suggested by periodic inspections. Thus,

special tailored standards under Subtitle

C of RCRA as well as under other

Agency authorities can be expected to

pose far less dire consequences for the

U.S. cement industry and the economy

as a whole than would regulation under

full Subtitle C.

IV. Regulatory Determination for

Cement Kiln Dust

Pursuant to RCRA sections

3001(b)(3)(C) and 8002(o), EPA has

determined that additional control of

CKD is warranted. The Agency’s

concerns about the harm to human

health and the environment posed by

CKD suggest the need for regulation

under RCRA Subtitle C authority.

However, the Agency recognizes that

certain of these areas of concern (those

related to releases to air and surface

waters) are more appropriately

controlled under other EPAadministered statutes. In order to avoid

unnecessary duplication among

regulatory programs, EPA would rather

use the other existing regulatory

programs to control risks where

appropriate, and develop a more

creative, affordable, and common sense

approach that would control the adverse

effects of CKD.

The Agency will develop, promulgate,

and implement regulations for CKD as

necessary to protect human health and

the environment by using a variety of

statutes. This regulatory program will

apply to CKD from all cement

manufacturing facilities, regardless of

the type(s) of fuels used in the

manufacturing process, or other factors.

In particular, the Agency will develop

and implement additional controls/

activities to limit releases to the air

using its Clean Air Act authority. For

surface waters, the Agency believes that

existing regulations and the planned

general permit under the NPDES

permitting program will provide an

adequate mechanism for controlling

point source discharges and for

managing storm water that contains

CKD. Thus, no additional water

controls, beyond these already planned,

are considered necessary.

The Agency will evaluate the need for

additional controls for a limited number

of off-site uses of CKD (such as use as

a lime fertilizer on agricultural fields) in

its regulatory proposal. However, for

most off-site uses (e.g., in waste

stabilization or certain construction

uses) EPA’s current record indicates

there are no significant risks. The

Agency will restrict its focus to those
7376 Federal Register / Vol. 60, No. 25 / Tuesday, February 7, 1995 / Rules and Regulations

off-site uses for which there are

significant risks.

With respect to ground water, the

Agency will use its authority under

Subtitle C of RCRA to address these

concerns. The Agency will use its broad

authority provided by RCRA section

2002(a), section 3001(b)(3)(C), and

section 3004(x) to develop a program

tailored to local cement plant conditions

to control the specific risks identified

while minimizing compliance costs.

Until the Subtitle C tailored rules take

effect, the Agency will retain the Bevill

exemption. The Bevill exemption will

be removed when final regulations

under RCRA authority take effect.

The Agency believes that subjecting

CKD waste to the full RCRA Subtitle C

program would be prohibitively

burdensome on the cement industry,

and is not a feasible regulatory option

under the factors cited in RCRA section

8002(o). Although EPA at this time is

not proposing the specifics of a RCRA

regulatory program for CKD, EPA

intends to apply only those components

of Subtitle C that are necessary, based

on our current knowledge of the cement

industry and the human health and

environmental concerns associated with

CKD, to achieve a common sense result

with respect to the hazards posed by

CKD on a site-specific basis. The

Agency anticipates that any such

standards would be designed to be

protective, yet minimally burdensome,

and may not necessarily apply to all

facilities or may not apply to all

facilities in the same manner or to the

same extent.

The specific RCRA Subtitle C

components that EPA believes may

deserve particular scrutiny in

developing a minimal, tailored

approach, including site-specific

considerations, include the following:

facility-wide corrective action under

section 3004(u); land disposal

restriction requirements (LDRs) under

sections 3004 (c), (d), (e), (f) and (g);

minimum technology standards under

section 3004(o); and permit

requirements under section 3005. EPA

believes that most of the concerns

addressed by the land disposal

restrictions program, permit

requirements, and the minimum

technology standards might be best

addressed through management

standards developed specifically for

CKD, and the Agency will carefully

study those possibilities as an

alternative to some or all LDRs and

minimum technology standards.

Moreover, because the costs for

including all solid waste management

units under facility-wide corrective

action at all cement plants may be

prohibitively burdensome on the

cement industry, EPA intends to explore

less burdensome, site-specific, tailored

approaches to identifying and correcting

problems that may occur from existing

CKD piles and preventing problems

arising from future CKD management.

This may include ground water

monitoring, a reliance on existing

response authorities under RCRA

section 7003 and CERCLA (or state

response authorities), or may focus on

site-specific factors, such as geography

and hydrology, in determining the need

for corrective action requirements.

Because most of the Agency’s ground

water concerns are associated with

potential contamination in areas of

limestone with karst features, EPA will

focus on tailored standards for CKD

disposal in karst terrain. The Agency

believes that concerns about

contamination in non-karst areas can be

addressed through the adoption by

industry of good CKD waste

management practices.

In addition, EPA believes it is

appropriate to consider other RCRA

Subtitle C requirements to see if, and to

what extent, they are necessary to

address the human health and

environmental concerns discussed in

this regulatory determination. In doing

so, EPA will also consider the costs

associated with those Subtitle C

requirements. EPA intends to develop a

regulatory program for CKD waste only

after full participation by the various

stakeholders. Consistent with the spirit

of that commitment, EPA at this time is

neither definitively limiting the scope

of, nor determining that any particular

elements necessarily will be included in

any proposed CKD regulatory program.

Finally, as discussed in the RTC, CKD

is often re-introduced into the kiln as a

substitute for raw material in clinker

production. In the absence of the CKD

regulatory exemption, under certain

regulatory scenarios clinker produced

from re-introduced CKD could be

considered a hazardous waste under the

derived-from rule (40 CFR

261.3(c)(2)(i)). As part of the regulations

that EPA will promulgate as a result of

today’s determination, EPA intends to

propose exclusion of clinker from

regulation as a derived-from hazardous

waste when CKD is reintroduced. When

reintroduced, CKD does not contribute

any constituents to clinker production

that are not already present in the

production process. Furthermore, at this

time, EPA has no indication that such

clinker poses unacceptable threats to

human health or the environment.

V. Next Steps

This section provides an overview of

the Agency’s plans for developing and

issuing tailored regulations for CKD.

The Agency recognizes that the

selection of a regulatory approach for

CKD waste may involve difficult choices

and policy decisions with wide-ranging

economic and environmental

implications. EPA believes that the

development of regulations under

multiple statutes (without duplication

among regulatory programs) that

adequately address the risks identified

in the RTC, yet are economically

affordable to the industry, should

involve participation by all interested

parties. To this end, EPA is announcing

a regulation development process

designed to encourage involvement by

all stakeholders. The regulation

development process will be conducted

in similar fashion to the Agency’s

Common Sense Initiative, notably with

early-on participation by all

stakeholders. This process will be

directed towards development of

environmentally protective regulations

that provide for highly flexible methods

to administer and implement them. The

Agency’s concern for minimizing the

burden on State and local regulatory

authorities and minimizing compliance

costs and resource burdens on the

regulated community will be an

important principle in the regulation

development process.

EPA will begin this process by

conducting a series of meetings with

interested parties, including industry,

government, and public interest groups.

The initial meetings with the parties

will be used to solicit technical

information and approaches that will

facilitate the Agency’s analysis of

regulatory options (e.g., CKD

management technologies, cost

information, and economic

information). The Agency plans to

conduct the initial meetings during the

spring and summer of 1995. Before

these meetings are held, the Agency will

identify specific questions and issues on

which the Agency would like to receive

information.

During the regulation development

process, the Agency will use the

information in the cumulative record of

the RTC and regulatory determination,

along with any new information

received, to formulate its approach to

developing tailored regulations for CKD.

Before the rule is proposed, the Agency

may publish an advance notice of

proposed rulemaking (ANPR) to present

and solicit comment on various

approaches to developing the

regulations.
Federal Register / Vol. 60, No. 25 / Tuesday, February 7, 1995 / Rules and Regulations 7377

14 USEPA, 1992. EPA Guidelines for

Implementing the Regulatory Flexibility Act, Office

of Regulatory Management and Evaluation, Office of

Policy, Planning, and Evaluation.

15 The definition of small entity is established by

the Federal Small Business Administration, which

has promulgated regulations found at 13 CFR

121.601. The criterion for determining small

business status in the hydraulic cement industry

(SIC Code 3241) is company-wide employment of

less than 750 employees.

VI. Regulatory Flexibility Analysis

The Regulatory Flexibility Act (RFA)

of 1980 (Pub. L. 96–354), which amends

the Administrative Procedure Act,

requires Federal regulatory agencies to

consider ‘‘small entities’’ throughout the

regulatory development process. Section

603 of the RFA requires an initial

screening analysis to be performed to

determine whether a substantial number

of small entities will be significantly

affected by a regulation. Under current

internal EPA guidance, however, any

economic impact is considered a

significant impact, and any number of

small entities is a substantial number.14

In keeping with this policy, EPA has

performed an initial evaluation of the

domestic cement industry to determine

whether or not there are small entities

operating U.S. cement plants. The

results of this analysis show that 23 of

the 115 operating domestic cement

plants are owned and operated by

companies that are defined as small

entities.15 These 23 plants are owned/

operated by 16 of the 40 companies

comprising the domestic cement

industry.

Because in today’s regulatory

determination EPA does not establish

new regulatory controls, the Agency has

not conducted a full Regulatory

Flexibility Analysis in support of

today’s action. EPA will, however,

consider the potential impacts of the

new regulations that will be developed

as a result of this action on these small

entities. In the process, the Agency will

examine potential impacts of regulatory

alternatives on these entities, and

identify and evaluate alternative

approaches that could mitigate such

impacts, as required by the RFA.

VII. Executive Order 12866

Under Executive Order 12866 (58 FR

51735, 10/4/93), the Agency must

determine whether the regulatory action

is ‘‘significant’’ and therefore subject to

OMB review and the requirements of

the Executive Order. The Order defines

‘‘significant regulatory action’’ as one

that is likely to result in a rule that may:

(1) Have an annual effect on the

economy of $100 million or more or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

(3) Materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof; or

(4) Raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in the Executive Order.

Pursuant to the terms of Executive

Order 12866, it has been determined

that this rule is a ‘‘significant regulatory

action’’ because it raises novel legal or

policy issues arising out of legal

mandates, the President’s priorities, or

the principles set forth in the Executive

Order. This action was submitted to

OMB for review. Changes made in

response to OMB suggestions or

recommendations will be documented

in the public record.

VIII. Regulatory Determination Docket

Documents related to this regulatory

determination, including EPA’s

response to the public comments, are

available for inspection in the docket.

The relevant docket numbers are: F–95–

RCKD-FFFFF for the regulatory

determination, F–94–RCKA–FFFFF for

the RTC and F–94–RC2A–FFFFF for the

NODA. The EPA RCRA docket is

located at the following address: United

States Environmental Protection

Agency, EPA RCRA Docket, Room

M2616, 401 M Street SW., Washington,

DC 20460. The docket is open from 9

a.m. to 4 p.m., Monday through Friday,

except for Federal holidays. The public

must make an appointment to review

docket materials. Call the docket clerk at

(202) 260–9327. Copies are free up to

100 pages and thereafter cost $0.15 per

page.

In addition to the data and

information that was included in the

docket to support the RTC on CKD and

the Technical Background Documents,

the docket also includes the following

documents:

• Analysis of and Responses to Public

Comments on the Report To Congress;

and

• Analysis of and Response to

Comments on the Notice of Data

Availability.

List of Subjects in 40 CFR Part 261

Environmental protection, Bevill

exemption, Cement kiln dust,

Incineration, Special wastes.

Dated: January 31, 1995.

Carol M. Browner,

Administrator.

[FR Doc. 95–2832 Filed 2–6–95; 8:45 am]

BILLING CODE 6560–50–P