TSCA Section 21 Petition; Response to Citizens' Petition

ENVIRONMENTAL PROTECTION AGENCY

[OPPTS-211042A; FRL-4968-9]

TSCA Section 21 Petition; Response to Citizens' Petition

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice; Response to citizens' petition.

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SUMMARY: On April 19, 1995, EPA received a petition under section 21 of

the Toxic Substances Control Act (TSCA), 15 U.S.C. 2620, signed by 24

environmental groups located in 10 western and mid-western States. The

petition asserts that cement-producing plants that burn hazardous

waste-derived fuel (WDF) in their kilns have higher concentrations of

toxic metals in their cement end-products, and that these products

therefore pose risks to end-users. The petition requests that EPA

promulgate a rule under section 6 of TSCA requiring those producers who

burn WDF to label their cement with a notice advising consumers of that

fact, and cautioning them to avoid emitting or breathing the cement

dust and to avoid direct contact.

The petition is denied on two grounds: (a) petitioners have not

substantiated the assertion that burning WDF increases risks posed to

end-users of cement; and (b) for risk protection purposes, the label

requested essentially duplicates labeling already required by the

Occupational Safety and Health Administration (OSHA).

FOR FURTHER INFORMATION CONTACT: Susan B. Hazen, Director,

Environmental Assistance Division (7408), Office of Pollution

Prevention and Toxics, Environmental Protection Agency, Rm. E-543, 401

M St. SW., Washington, DC 20460, (202-260-1024), Internet: TSCA-

H[email protected].

SUPPLEMENTARY INFORMATION:

I. Statutory Requirements

Section 21 of TSCA provides that any person may petition EPA to

initiate proceedings for issuance of rules under sections 4, 6, and 8

of TSCA, or to issue orders under sections 5(e) or 6(b)(2) of TSCA. A

section 21 petition must set forth facts which petitioners believe

establish the need for the rules requested. EPA is required to grant or

deny the petition within 90 days. If EPA grants the petition, the

Agency must promptly commence an appropriate proceeding. If EPA denies

the petition, the Agency must publish its reasons in the Federal

Register.

Within 60 days of denial, or if EPA fails to respond in 90 days,

the petitioner may commence a civil action in a U.S. district court to

compel initiation of the requested rulemaking. For a petition for a new

rule, the court must provide opportunity for the petition to be

considered de novo. After hearing the evidence, the court can order EPA

to initiate the requested action.

II. Approach to Reviewing Petition

Immediately following receipt of the petition, on April 19th, a

Workgroup was established with representatives from EPA's Offices of

Pollution Prevention and Toxics; Solid Waste and Emergency Response;

and General Counsel. After receiving an unsolicited comment on the

petition, on May 15th, the Agency decided to publish a Notice of

Receipt (60 FR 30538, June 9, 1995), in order to afford all interested

parties an opportunity to comment. In keeping with the 90 day deadline

for reaching closure, the Workgroup briefed the Director of the Office

of Pollution Prevention and Toxics on May 17th, and the Office Director

subsequently presented the case to the Assistant Administrator for

Prevention, Pesticides and Toxic Substances for a decision.

[[Page 39170]]

In response to the FR Notice of Receipt, comments were received

from 8 individuals and 10 organizations. Several samples of current

cement packaging and Material Safety Data Sheets (MSDSs) were also

received. All comments were reviewed and considered by the Agency

before reaching its final determination to deny the petition.

III. Background

On April 19, 1995, EPA received a petition under section 21 of the

Toxic Substances Control Act (TSCA), 15 U.S.C. 2620, signed by 24

environmental groups located in 10 western and mid-western States. The

petition asserts that cement-producing plants that burn hazardous

waste-derived fuel (WDF) in their kilns have higher concentrations of

toxic metals in their cement end-products, and that these products

therefore pose risks to end-users. The petition requests that EPA

promulgate a rule under section 6 of the TSCA requiring those producers

who burn WDF to label their products, in both English and Spanish, with

the following label.

WARNING: THIS PRODUCT WAS MADE WHILE BURNING HAZARDOUS WASTE AND

CONTAINS RESIDUALS OF THAT HAZARDOUS WASTE, INCLUDING INCREASED

AMOUNTS OF TOXIC AND CARCINOGENIC METALS. AVOID EMITTING AND

BREATHING DUST FROM THIS PRODUCT AND AVOID DIRECT CONTACT WITH THIS

PRODUCT.

Cement is made by heating limestone, clay and other substances to

very high temperatures in rotary kilns to form a granular material

called ``clinker'', which is then cooled and ground up with gypsum to

make cement powder. Cement kiln dust (CKD) waste is generated during

the production of clinker. Releases to air, water and land from cement

kilns are regulated under the Clean Air Act (CAA), Clean Water Act

(CWA), and Resource Conservation and Recovery Act (RCRA). In 1992, 23

of the 111 domestic cement-producing plants burned WDF to supplement

traditional fossil fuels (FF) (Ref. 3, p.7367). Air emissions and

disposal of residues from kilns burning WDF are regulated under the

Boiler and Industrial Furnace (BIF) regulations issued under RCRA.

While not central to the petition, CKD is tangentially related to

petitioners's concerns. CKD is particulate matter, including toxic

metals, that has been removed from kiln stack gases by air pollution

control equipment. Once removed, CKD may be: (a) reintroduced into the

kiln as feedstock; (b) used for such beneficial purposes as general

construction, waste stabilization, or as a substitute for lime and

fertilizer in agriculture; or (c) simply disposed. Pursuant to RCRA

section 8002(o), EPA published a Report to Congress on Cement Kiln Dust

in 1993 in which the Agency concluded that although risks associated

with CKD management are generally low, CKD could, under some

circumstances, pose a danger to human health and the environment (Ref.

2). No decision was made at that time regarding the need to treat CKD

as hazardous waste under RCRA Subtitle C.

In February of this year, pursuant to RCRA section 3001(b)(3)(C),

the Agency published a Regulatory Determination on Cement Kiln Dust (60

FR 7366, February 7,1995) in which it concluded that additional control

of CKD is warranted, and that it would use RCRA Subtitle C and other

authorities to control risks where appropriate (Ref. 3). Pending

development of those regulations, CKD retains its exemption from

regulation under Subtitle C pursuant to the Bevill Amendment contained

in section 3001(b)(3)(A). The Regulatory Determination also stated that

the Agency would propose exclusion of clinker as ``derived-from''

hazardous waste when CKD is reintroduced into the kiln as feedstock.

Although the Bevill Amendment conditionally exempted CKD from

regulation as hazardous waste under Subtitle C, the BIF regulations

require kilns burning WDF to test their CKD to ensure that it is not

significantly affected by the practice (40 CFR 260.112).

The activities described above address CKD waste disposal issues

(the focus of both the Report to Congress and the Regulatory

Determination). The petition, on the other hand, is primarily concerned

about potential hazards to users posed by toxic metals introduced into

cement via combustion of WDF. There are, however, four sources of toxic

metals in cement: (1) the original feedstock; (2) CKD recycled as

feedstock; (3) the fuel, both FF and WDF, used to heat the kiln; and

(4) equipment and processes used, particularly refractory kiln bricks

and the steel balls used to grind clinker (Ref. 1, p.50). The relative

contribution of each of the four potential sources varies by an unknown

extent from facility to facility and from time to time. The

concentrations of metals in cement from any given plant are a function

of complex interactions among all of these variables. A plant burning

FF, using feedstock with a high metal content, and recycling CKD

extensively, for example, might produce cement with high concentrations

of metals, while one burning WDF using the same feedstock, but

discarding most of its CKD, might produce cement with lower

concentrations.

IV. Adverse Effects Associated with Cement

Based on information provided by petitioners, adverse effects

associated with cement cited in the petition include: (a) cement eczema

or cement dermatitis; (b) lung cancer; (c) asthma; and (d) a variety of

other effects including nosebleeds, ulcers, respiratory distress and

pneumoconiosis. Of these, cement dermatitis is the most common effect

associated with cement, because the relationship between exposure to

cement and dermatitis is well-established, and because the effect can

occur at relatively low levels of exposure. Frank cement dermatitis is

generally preceded by a number of years of skin irritation, abrasions,

and cracks. Once established, cement dermatitis is chronic, even if

there is no further exposure to cement. The dermatitis sensitization

threshold is reported to be in the range of 10 to 15 parts per million

(ppm) hexavalent chromium in cement.

V. Analysis of Petition

As general background, petitioners argue that CAA, CWA and RCRA

regulations are tightening restrictions on kiln-generated discharges of

toxic metals to air, water and land, without restricting transfer of

these metals into the cement itself. They contend that this incentive

structure has increased the toxic metals content of cement. However,

petitioners offer no evidence that concentrations of metals in cement

have in fact increased. With respect to the objective of the petition,

EPA notes that if restricting toxic metals from all compartments except

the end-product is a problem, it would be a problem for all kilns, not

simply those burning WDF. The essence of the petition is the more

specific assertion that burning WDF increases the amount of toxic

metals in cement.

The petition's assertion is based entirely upon evidence

petitioners adduce from a 1992 study, published by the Portland Cement

Association (PCA), that presented data on heavy metal concentrations

found in both CKD and cement produced in facilities using FF only, and

in facilities using WDF (Ref. 1). The study determined both ``total''

(acid soluble) and ``leachable'' (water soluble) concentrations of 12

metals (arsenic, antimony, barium, beryllium, cadmium, chromium, lead,

mercury, nickel, selenium, silver and thallium) in both CKD and cement

drawn from 97

[[Page 39171]]

North American kilns. The results were tabulated, among other ways,

according to whether the originating kilns burned FF or WDF. Relevant

findings of the study were that (a) the mean ``total metal''

concentration of only one metal, chromium, was statistically

significantly higher in cement from kilns burning WDF than from kilns

burning FF; (b) for the remaining 11, some of the ``total metal''

concentrations were higher and some lower , but none by statistically

significant amounts; and (c) none of the ``leachable metal''

concentrations differed significantly in cement for any of the 12

metals. Evidence brought forth by petitioners therefore suggests only

that burning WDF may increase concentrations of chromium in cement; no

empirical case is made for metals in general.

Petitioners, however, have not established that burning WDF

increases even chromium concentrations in cement. There are two flaws

in the reasoning and evidence presented. The first has to do with the

inability of the cited PCA study to identify the source of metal

concentrations found in the cement samples. Although the study

documented statistically significant higher mean levels of total

chromium (113 vs. 61.7 ppm) in cement from the kilns burning WDF, the

authors of that study explicitly cautioned against attributing the

difference to type of fuel burned:

Identification of the specific sources of the twelve chemical

elements in the samples is beyond the scope of this study. Sources

include fuel, raw materials, refractories, and processing equipment

that comes into contact with the materials. For any particular kiln

system, the concentration of these elements in cement and kiln dust

is a function of the manufacturing process and the total metals

input from all sources.

Because of widespread interest in the burning of alternate fuels

in cement kilns, comparisons are presented in this data summary

between kiln systems using waste fuels and coal, coke or natural

gas. However, the reader should not infer that observed differences

are necessarily attributable to the waste fuels, as that is only one

of many sources of metals in this multivariate system. (Ref. 1; p.1

of Data Summary appended to reference)

Construction Technology Laboratories (CTL), the firm PCA used to

conduct the study, reiterated this concern in an April 24, 1995 letter

addressed to the Executive Director of the Cement Kiln Recycling

Coalition (CKRC), a trade association of cement producers that burn

WDF. That letter, forwarded by CKRC to EPA on May 15, 1995, states in

part, that ``It was not the purpose of the study to determine the

specific sources of trace elements in cements. The work on which this

report is based did not include a complete material balance for each

plant that submitted samples. Therefore, increases or decreases in

trace metals concentrations cannot necessarily be attributed to fuel

type.''

The second point has to do with the substance selected by

petitioners for discussion. They highlighted the statistically

significant higher concentration of ``total chromium'' found by the PCA

study in cement from kilns that burned WDF. The following table

(derived from Ref. 1) also shows the concentrations of ``leachable

chromium'' found in the same study. The mean difference in leachable

chromium between kilns burning WDF and FF is not statistically

significant. The evidence from the study cited by petitioners for

increased chromium in kilns burning WDF is therefore mixed.

Total and Leachable Chromium Levels Found in Cement Produced Burning WDF

and FF (ppm)

------------------------------------------------------------------------

Total Chromium Leachable Chromium

Levels ---------------------------------------------------

WDF Cement FF Cement WDF Cement FF Cement

------------------------------------------------------------------------

Minimum............. 33.3 24.6 3 Found that concentrations of ``total chromium'', not

metals in general, were statistically significantly higher in cement

produced in kilns burning WDF--but did not, and was not intended to,

attribute that difference to WDF;

Found no statistically significant difference in the

concentration of leachable chromium in cement produced with and without

burning WDF; and

Found that burning both FF and WDF generates

concentrations of chromium in cement at and above reported threshold

levels for cement dermatitis.

EPA's analysis of (a) the material presented by petitioners, and

(b) the PCA study1, has concluded that petitioners have not

provided convincing evidence for their basic contention, or for the

need for regulation under TSCA.

1 The petition did not include the PCA study. The findings

reported in the petition regarding the PCA study were drawn from

data about that study cited in a secondary article supplied by

petitioners. The caveats on use of the study's findings, contained

in the original, did not appear in the secondary work.

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VI. Other Evidence

Other data are available that bear on the question of whether use

of WDF adds metals to cement. EPA's Regulatory Determination on Cement

Kiln Dust, although not concerned with cement, did compare metal

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concentrations found in CKD produced in plants burning FF and WDF. That

determination noted that:

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 concentrations

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

(Ref. 3, p.7369).

Again, the evidence is inconsistent; concentrations of some metals

in WDF-generated CKD are higher, but others are lower. The continuing

difficulty, however, is in establishing causality. As previously noted,

the concentration of metals found in any given plant's cement results

from complex interactions among several site-specific variables; in the

absence of a study controlling for these variables, one cannot

confidently attribute variations in metal concentrations among plants

to any one source. There is one industry study, A Comparison of Metal

and Organic Concentrations in Cement and Clinker Made With Fossil Fuels

to Cement and Clinker Made with Waste Derived Fuels (Ref. 4), that

determined the concentrations of metals in cement produced at a single

facility that initially used WDF, and then switched temporarily to FF.

Other operating conditions were held constant in both time periods, and

20 cement samples were taken in each. That study found detectable

amounts of four metals. In one phase (pH=5 extract waters), the mean

concentration of antimony was statistically significantly higher in the

cement generated burning WDF, but there were no significant differences

for either cadmium or chromium. In the second phase (pH=10 extract

waters), the mean concentration of chromium in cement produced while

burning WDF was statistically significantly lower than in cement

produced burning FF--exactly opposite to the PCA findings. The

differences for nickel were insignificant.

The totality of evidence, then, does not confirm that burning WDF

in kilns materially increases concentrations of metals in cement. It

also shows that decreased concentrations of metals can occur, and the

net human health potential, if any, is simply unknown. In any event,

based on the available information, the type of fuel burned in kilns

appears to be a minor determinant of the concentration of metals in

cement relative to (a) the extent to which CKD is recycled as

feedstock, and (b) the metals content of the original feedstock.

Finally, the evidence indicates that all domestic2 cement poses a

potential problem to long-term users who fail to take precautionary

steps to avoid exposures. Any labeling intended to warn users of this

hazard should therefore be applied to all cement, not simply to cement

produced with WDF.

2There is some evidence that the hexavalent chromium content of

cement can be reduced by adding ferrous sulfate. Petitioners cite

references indicating that Denmark has made it illegal to sell

cement with more than 2 ppm CR (VI).

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VII. OSHA's Labeling Requirement

The current regulatory situation recognizes the need for

comprehensive labeling of cement. Although petitioners state that the

problems they discuss cannot be adequately addressed under other

statutes, OSHA's Hazard Communication Standard (29 CFR 1910.1200) does,

in fact, require cement manufacturers to label virtually all containers

of their products with essentially all of the information petitioners

want to convey, other than the fact that the cement was produced

through burning of WDF. This requirement extends to all cement, not

just that produced with WDF. Pertinent provisions of the Hazard

Communication Standard require chemical manufacturers (cement

producers, for this purpose, are considered chemical manufacturers) of

products for which there is evidence of health hazard to label all

containers of the product providing: (a) the identity of the chemical;

(b) appropriate hazard warnings; and (c) the name and address of the

manufacturer (29 CFR 1910.1200(f)). Manufacturers must also ensure that

distributors and employers using the product are furnished with

appropriate MSDS, and downstream wholesalers and retailers are required

to ensure that these warnings are carried with the product through the

distribution chain to the ultimate end-user. A typical cement bag label

reads as follows:

CAUTION EYE AND SKIN IRRITANT

Contains Portland Cement (CAS No. 65997-15-1). Do not allow

contact with eyes or skin. Contains concrete aggregates Sand/Gravel

(CAS No. 14808-60-7). Avoid breathing dust--respirable Silica may

cause serious lung problems.

Use gloves, goggles, dust masks, and waterproof protective

clothing. If material gets into eyes, rinse immediately with clean

water and seek prompt medical attention. If material gets onto skin

or saturates clothing, rinse immediately and thoroughly with clean

water. CONTACT WITH WET PORTLAND CEMENT MAY CAUSE SERIOUS SKIN

BURNS.''

EPA believes that the hazard communication label required by OSHA

provides sufficient warning to users of cement to allow them to take

appropriate steps to protect themselves from exposure to cement

products.

VIII. Comments Received

EPA published a Notice of Receipt of the Petition in the Federal

Register (60 FR 30538; June 9, 1995), in order to provide opportunity

to comment to all interested parties. Comments were received from 8

individuals, all of whom supported the petition, and 10 organizations.

Several samples of current cement packaging and MSDSs were also

received. All comments were reviewed and considered by the Agency

before reaching its final determination to deny the petition.

Six of the 10 organizations wrote in support of the petition. Of

these, 3 were among the 24 signers of the petition itself; 1 is another

environmental group; 1 is a general contractor; and 1, Rollins

Environmental Services, operates hazardous waste incinerators. The

Rollins submission included two studies bearing on the question of the

contribution of WDF to metals in cement. The first study was a mass

balance analysis conducted at Rutgers University with the support of

the Association for Responsible Thermal Treatment (ARTT), an

organization of some hazardous waste incinerator companies. That study

models the operation of cement kilns, and concludes, among other

things, that burning WDF could increase the metals content of cement.

The second study is a risk assessment undertaken by ENVIRON

Corporation, using the data generated by the Rutgers model, and a

portion of the PCA data. These studies were reviewed by EPA, insofar as

time permitted, but did not alter the Agency's decision on the petition

because: (a) there is no apparent justification for substituting

modeling data for the extensive empirical monitoring data available;

(b) the model itself appears flawed in that a light weight aggregate

kiln, rather than a cement kiln, was used in its development; (c) the

model has only recently been developed, and has not yet been peer

reviewed; and (d) the ENVIRON study is largely based upon the

unpersuasive modeling results (Refs. 5 and 6).

The four organizations that wrote in opposition to the petition

included the CKRC; the International Brotherhood of Boilermakers, Iron

Ship Builders, Blacksmiths, Forgers Helpers; LaFarge Corporation, a

cement producer that

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burns WDF; and Union Carbide Corporation, a company that uses cement

kilns to handle wastes produced manufacturing petrochemicals. These

commenters generally noted advantages that acrue from recovering energy

from waste by burning it as fuel in kilns, asserted that petitioners

had not provided sufficient evidence of increased risk, and cited the

current regulatory requirement for labeling.

IX. Disposition of Petition

Based upon (a) the lack of convincing evidence that WDF contributes

materially to the hazards posed by cement; and (b) the fact that

current OSHA regulations already require virtually everything

petitioners request, other than a reference to WDF, the petition is

denied.

X. References

The following references were used in reviewing this petition:

1. Portland Cement Association. An Analysis of Selected Trace

Metals in Cement and Kiln Dust, 1992.

2. USEPA. Report to Congress on Cement Kiln Dust. Office of Solid

Waste and Emergency Response. USEPA 530-S-94-001, December 1993.

3. USEPA. Regulatory Determination on Cement Kiln Dust: Final Rule.

Office of Solid Waste and Emergency Response. USEPA 60 FR 7366,

February 7, 1995.

4. NSF. A Comparison of Metal and Organic Concentrations in Cement

and Clinker made with Fossil Fuels to Cement and Clinkers Made with

Waste Derived Fuels: Final Report. NSF International. November 13,

1995.

5. Review of Comments submitted by Rollins Environmental Services;

memorandum from Oscar Hernandez to Edward Brooks, July 13, 1995.

6. Review of Rutgers' Model as Discussed in Submission by Rollins

Environmental Services: June 26, 1995; memorandum from William A.

Schoenborn to Edward Brooks, July 18, 1995.

XI. Public Record

EPA has established a public record of those documents the Agency

considered in reviewing this petition. The record consists of documents

in the file designated by Docket Number OPPT-211042, located in the

TSCA Public Docket Office. This Docket is available for inspection from

12 noon to 4 p.m., Monday through Friday, except legal holidays, in the

TSCA Nonconfidential Information Center, Rm. NEB-607, 401 M St., SW.,

Washington, DC 20460. The public record consists of all documents in

the OPPT file and all documents cited in the documents in that file.

List of Subjects

Environmental Protection, hazardous waste.

Dated: July 24, 1995.

Susan H. Wayland,

Assistant Administrator for Prevention, Pesticides and Toxic

Substances.

[FR Doc. 95-18871 Filed 7-31-95; 8:45 am]

BILLING CODE 6560-50-F