Regulatory Determination on Cement Kiln Dust

SUMMARY: Today's action presents the Environmental Protection Agency's

(EPA) regulatory determination on cement kiln dust (CKD) waste. This

action is required by the Resource Conservation and Recovery Act

(RCRA). EPA has concluded that additional control of CKD is warranted

in order to protect the public from human health risks and to prevent

environmental damage resulting from current disposal of this waste. The

primary environmental concerns to be addressed through additional

controls are documented damages to ground water and potable water

supplies, and potential human health risks from inhalation of airborne

CKD and ingestion via food chain pathways. The Agency has decided to

take a common sense approach in imposing such controls. In order to

avoid duplication among regulatory programs, the Agency will use, as

appropriate, its various authorities under the Clean Air Act, Clean

Water Act, and RCRA to address the relevant pathways of potential

contaminant releases from CKD.

Under Subtitle C of RCRA, the Agency will develop a tailored set of

standards for CKD that controls releases to ground water. The tailored

standards will protect human health and the environment, while imposing

a minimal burden on the regulated community. Until the tailored

regulations are published by the Agency, CKD will retain the Bevill

exemption and the status of CKD under RCRA Subtitle C will remain

unchanged. Those cement manufacturing facilities that burn RCRA

hazardous waste in their kilns will still be required to test their CKD

to see that it remains unaffected by the combustion of hazardous waste.

EPA has not included an evaluation of clinker or other products or

by-products of cement production in this regulatory determination. In

the absence of the CKD regulatory exemption, under certain regulatory

scenarios clinker produced from re-introduced CKD could be considered a

hazardous waste. However, as part of the regulations that EPA will

promulgate as a result of today's determination, EPA intends to exclude

clinker from regulation as a derived-from hazardous waste when CKD is

re-introduced. At this time, EPA has no indication that such clinker

poses an unacceptable threat to human health or the environment.

ADDRESSES: Copies of this regulatory determination and the supporting

record docket are available for public inspection and copying at the

RCRA docket, 401 M Street, SW., Washington, DC, Room M2616, 2nd floor,

Waterside Mall. The docket number for this action is F-94-RCKD-FFFFF.

The docket is open from 9 to 4 p.m., Monday through Friday, except

federal holidays. In order to access the docket, please call (202) 260-

9327 to make an appointment. Copies are free up to 100 pages and

thereafter cost $0.15/page.

This document and the Response to Public Comments document are also

available on the EPA's Clean-up Information Bulletin Board (CLU-IN). To

access CLU-IN with a modem of up to 28,800 baud, dial (301) 589-8366.

First-time users will be asked to input some initial registration

information. Next, select ``D'' (download) from the main menu. Input

the file name ``CKD6.ZIP'' to download this notice. Input the file

names ``CKD7.ZIP'' and ``CKD8.ZIP'' to download the two files that

contain the two response to public comments documents. Follow the on-

line instructions to complete the download. More information about the

download procedure is located in Bulletin 104; to read this bulletin

type ``B 104'' from the main menu. For additional help with these

instructions, telephone the CLU-IN help line at (301) 589-8368.

FOR FURTHER INFORMATION CONTACT: For general information, contact the

RCRA/Superfund Hotline at (800) 424-9346 or (703) 412-9810; for

technical information contact Bill Schoenborn, U.S. Environmental

Protection Agency (5302W), 401 M Street SW., Washington, DC 20460, at

(703) 308-8483.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background

A. Statutory Authority

B. Public Comment Process

C. Stakeholder Comments

II. Major Findings of the RTC and NODA

A. Sources and Volumes of Waste

B. Current and Alternative CKD Management Practices

C. Existing Regulatory Controls

D. Waste Characteristics

E. Documented Evidence of Damage

F. Potential Risks to Human Health and the Environment

G. Environmental Justice

H. Potential Costs and Impacts of Subtitle C Regulation

I. Regulatory Options

III. Applying the Decision Rationale in Making the Regulatory

Determination

A. Step 1: Does Management of CKD Pose Human Health and

Environmental Problems? Might Current Practices Cause Problems in

the Future?

B. Step 2: Is More Stringent Regulation Necessary and Desirable?

C. Step 3: What Would be the Operational and Economic

Consequences of a Decision to Regulate Under Subtitle C?

IV. Regulatory Determination for Cement Kiln Dust

V. Next Steps

VI. Regulatory Flexibility Analysis

VII. Executive Order 12866

VIII. Regulatory Determination Docket

I. Background

A. Statutory Authority

EPA is issuing today's notice under the authority of section

3001(b)(3)(C) of the Resource Conservation and Recovery Act (RCRA), as

amended. This section requires that, after completing the Report to

Congress (RTC) mandated by section 8002(o) of RCRA, the EPA

Administrator must determine whether Subtitle C regulation of CKD waste

is warranted. The RTC documents EPA's study of CKD. It was signed by

the Administrator on December 30, 1993.

B. Public Comment Process

After submitting the RTC to Congress, EPA provided the public with

an opportunity to comment on the report and the appropriateness of

regulating CKD under RCRA Subtitle C (59 FR 709, 1/6/94). The public

comment period lasted until February 22, 1994 (59 FR 709, 1/6/94). Due

to numerous requests to lengthen the comment period, EPA extended the

comment period to March 8, 1994 (59 FR 6640, 2/11/94). To ensure that

all interested parties had an opportunity to present their views, EPA

not only held a public hearing in Washington, DC, but also held a

series of public meetings with representatives of the cement industry,

the hazardous waste treatment industry, regional and state

environmental authorities, and citizen groups.

EPA received approximately 1,100 written comments, 18 videotapes,

and a number of photographs prior to the close of the RTC comment

period. All individual comments and a transcript from the public

hearing are available for public inspection in the RTC docket (Docket

No. F-94-RCKA-FFFFF). The docket also contains a summary of all the

comments presented at the public [[Page 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.

In addition, there are also wide variations among kilns and plants

in the amount of net CKD (i.e., CKD that is either disposed or used

beneficially off-site) that is generated. For example, 25 percent of

the facilities produce essentially no net CKD, while 10 plants (about

10 percent of the population) generate 40 percent of all net CKD.

Finally, the Agency also found that the burning of hazardous waste

is correlated with the volume of dust that is actually disposed. 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 plant-specific operating factors such

as the composition of the raw material feed.

B. Current and Alternative CKD Management Practices

Most of the gross CKD--8.2 million metric tons, or 64 percent--was

recycled directly back into the kiln or raw feed system in 1990. For

that portion of CKD that is disposed, standard industry practice is to

place it in piles, quarries, or landfills, most of which are unlined

and uncovered. Some active piles are also managed underwater or

adjacent to surface water and/or agricultural lands. Although most CKD

removed from the kiln system is disposed on-site, some is sold for off-

site beneficial use. For example, in 1990, about 7 percent of CKD

generated (897,000 metric tons) was sold for off-site use, most of it

as a waste stabilizer, liming agent, or materials additive.

Cost-effective opportunities may exist, however, to further reduce

the amount of CKD that is disposed by recycling it back into the kiln.

The Agency has identified a number of pollution prevention

opportunities, including flue gas desulfurization, fluid-bed dust

recovery, and leaching with water, that may, in some instances,

represent low-cost and potentially profitable alternatives to CKD

disposal. In addition, the Agency has received some evidence, in

comments from cement companies, that raw material substitution may be a

highly effective means of increasing CKD recycling rates. This may be

done by controlling the input of contaminants (in raw materials and

fuels) to the kiln system, thereby reducing or eliminating the need to

purge the kiln system of contaminants by removing larger volumes of CKD

from the system.

C. Existing Regulatory Controls

Federal statutes that potentially affect CKD management include the

Clean Air Act (CAA), Clean Water Act (CWA), the Resource Conservation

and Recovery Act (RCRA), and the Comprehensive Environmental Response,

Compensation and Liability Act (CERCLA). Regulations developed under

authority of the CAA and CWA impose controls on releases of CKD to the

air (via stack or fugitive dust emissions, 40 CFR Part 50) and water

(National Pollution Discharge Elimination System (NPDES), 40 CFR Part

122, point source effluent discharges, and 40 CFR Part 411, effluent

guidelines for cement manufacturing facilities), respectively. Under

both RCRA and CERCLA, the Federal government can respond where the

release of CKD or its constituents may present an imminent and

substantial danger to human health or the environment. CKD that is not

directly recycled is also subject to regulation under Subtitle D of

RCRA as a solid waste. In addition, CKD generating facilities that burn

RCRA hazardous waste in kilns are subject to the RCRA Boiler and

Industrial Furnace (BIF) rule (40 CFR part 266) and other RCRA

requirements if the CKD from that combustion is ``significantly

affected'' by the hazardous waste fuel. See 40 CFR 266.112.

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

site-specific disposal requirements and waste reduction strategies,

which are both periodically updated by the State. In contrast, Michigan

and Texas both consider CKD an industrial non-hazardous waste. Michigan

requires permits, ground water monitoring, and regular reports of

ground water sampling results, whereas Texas issues non-enforceable

guidance.\1\ [[Page 7368]]

\1\Texas is in the process of developing on-site management

standards for cement kiln dust and expects to propose them in 1995.

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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).

\2\EPA hazardous waste identification rules do not include a

characteristic or definition for solid corrosives.

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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]

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

No. of

Metal 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

[[Page 7369]]

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.

\2\The 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\

\3\The differences cited are those discernible at a 95 percent

confidence level.

\4\While 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 site-specific

factors affecting exposure (e.g., proximity of exposure points,

topography). The concentrations of barium, chromium, and nickel in

CKD are within the typical range found in U.S. soils.

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With respect to organics, volatile and semi-volatile compounds were

generally not found in CKD. However, levels of 2,3,7,8-substituted

dioxin, and 2,3,7,8-substituted dibenzofuran were detected, although

the concentrations were generally low--ranging from 0.5 to 20 ppt for

dioxin and non-detected to 470 ppt for furan. The calculated 2,3,7,8-

TCDD TEQ values for the facilities sampled by EPA ranged from non-

detected to 9 ppt.

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 2\1/2\ 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\

\5\A separate issue raised by commenters is whether the TCLP

adequately depicts the potential for metals to leach from CKD. See

the background document to this Notice entitled Summary of and

Response to Comments on the Report to Congress in the RCRA docket

for a discussion of this issue.

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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.

\6\EPA received many comments on the specific damage cases

described in both the RTC and subsequent NODA. Based on review of

the damage cases, except for only one reassessment, the Agency

believes the information received does not contradict the Agency's

basic conclusions regarding any of the damage cases.

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Information on environmental quality, on which this evidence is

based, is limited by available data from each of the 127 sites

evaluated. For those sites for which data were available, files

contained information on releases, but little human exposure data.

Significantly, releases to ground water were observed at all sites for

which EPA has received ground water monitoring data; if there had been

additional ground water monitoring data from other sites, further

evidence of leaching and contamination would likely have been found.

While the Agency has no documented data on contaminant transport off-

site, or documented data on human exposure and risk at the point of

drinking water use, this is because the drinking water wells at these

sites are currently located far enough away, and/or tap aquifers are

isolated enough, to be unlikely to intersect contaminated ground water.

To the extent that wells would be drilled closer to the sites or the

contamination spreads, there is potential that the wells would tap CKD-

contaminated ground water. Waste disposal practices at sites where

water damages have been documented include management in waste piles,

abandoned quarries, or landfills, all of which were unlined. Air

damages are cited as primarily due to mechanical failure of dust

handling equipment. [[Page 7370]]

F. Potential Risks to Human Health and the Environment

Based on an extensive data base compiled from industry sources,

Agency field visits, RCRA section 3007 information requests,

information submitted in comments, literature reviews, and other public

sources, the Agency conducted a series of risk screening and site-

specific risk modeling studies to evaluate potential risks from on-site

management and off-site uses of CKD. Methodologies and results of these

studies were documented in Chapter 6 of the RTC and its related

technical background document and in two subsequent EPA technical

background documents titled Human Health and Environmental Risk

Assessment in Support of the Regulatory Determination on Cement Kiln

Dust (August 31, 1994) and Supplemental Errata Document for the

Technical Background Document for the Notice of Data Availability on

Cement Kiln Dust (September 30, 1994). Principal findings from these

studies include the following:

Among a sample of 83 plants for which EPA had sufficient

data to conduct a site-specific risk screening evaluation for metals in

CKD, the Agency predicted only low or negligible risk potential from

on-site management of CKD via conventional direct pathways of

constituent transport and exposure (drinking water, incidental direct

ingestion, chemical inhalation) via ground water contamination, surface

water runoff to streams or lakes, or windblown dust. However, there are

three principal and important qualifications to these direct pathway

findings:

As noted above, EPA has found empirical evidence of ground

water contamination near the management unit at each cement

manufacturing facility where ground water quality data exist; these

sites are located in both areas of karst and non-karst terrain.

According to U.S. Geological Survey maps and other

sources, about half of all cement plant sites are underlain by

limestone formations in areas of karst landscape. These limestone

formations may have fissures caused by rock dissolution along joints or

bedding planes with hydraulic characteristics that allow leachate to

directly enter ground water aquifers without substantial dilution or

attenuation. Available ground water pathway modeling techniques are not

applicable under these conditions. This does not necessarily mean that

ground water contamination will occur at these cement plants (although

that would be consistent with some of the damage cases); however, it

should be regarded as a significant qualification to the general

findings of low or negligible risk from the ground water pathway risk

modeling results.

In its follow-up work leading to the NODA, EPA did find

evidence of possible risk to human health due to the fine particulate

nature of inhaled dust. Although the Agency's direct inhalation

exposure modeling studies described in the RTC did not indicate

significant risk from inhaled chemical constituents in CKD, subsequent

screening-level modeling on a small number of plants did indicate that

windblown dust from uncontrolled CKD waste management units could

exceed EPA's health-based fine particulate (10 micron or less) National

Ambient Air Quality Standard (NAAQS) at plant boundaries, and

potentially at nearby residences. Results from a more recent extension

of this work to a larger sample of 52 cement plants suggest that 28 of

the plants could exceed NAAQS standards at plant boundaries, if the

plants do not have effective dust control mechanisms.\7\ Although

quantitative risks presently can not be estimated, these initial

modeling results relating to fine particulates suggest cause for

concern and argue for further attention to this source of fugitive

dust.

\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.

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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 x 10-5 (1 in 100,000) to

1 x 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-based-standard 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 family-caught fish were used to

estimate exposures to these potentially affected consumers.

The particular sites selected for indirect pathway analysis from

among the 83 plants in EPA's study were carefully screened with respect

to the potential for CKD releases from currently active piles and

exposures via land, air, and surface water pathways. Proximity to

nearby streams or lakes (for possible risk via fish ingestion) and

distance to actual farm fields and rural dwellings likely to have

gardens (for potential exposures from home grown vegetables and/or beef

and milk) were determined from a variety of sources, including company-

provided maps, U.S. Geological Survey maps, and aerial photographs.

[[Page 7371]]

EPA's risk assessment work did not explicitly consider the

potential for changes in population around CKD management units, which

would alter future direct and indirect exposure potentials. Proximity

to the source is one of the more important determinants of risk, and

many cement plants are experiencing encroachment by human populations.

The Agency also studied several off-site beneficial uses

of waste dust. Most current off-site uses, such as for waste

stabilization or general construction, are either currently regulated

(under RCRA for hazardous waste stabilization, or under the Clean Water

Act in the case of municipal sewage sludge) or appear to present low

risk due to low exposure potential. However, one current use--as a

lime/fertilizer substitute on agricultural fields--was found to present

some potential for indirect food chain risk under plausible exposure

modeling assumptions for highly exposed 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 x 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.

\8\For purposes of this report, subsistence farmers and

subsistence fish consumers are those whose diets are very heavily

dependent on home-grown foods or locally caught fish. Particularly

high exposures to contaminants can result from bioaccumulation of

toxic constituents in the locally-grown farm products or fish,

compounded by a high proportion of these foods in the diet.

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As part of the NODA, EPA announced the availability of a report

titled Race, Ethnicity, and Poverty Status of Populations Living Near

Cement Kilns in the United States. The report includes numerous

analyses and summaries of the demographics data, and is available in

the RCRA docket. One analysis indicated that, of the facilities

studied, approximately three-fourths of the sites have a minority

population at or below the national average of 24 percent living within

one mile of the facility while the remaining sites had minority

populations higher than the national average living within a mile of

the site. With regard to poverty level, approximately 54 percent of the

facilities had less than 13 percent of the population (national

average) living below the poverty level within one mile of the facility

while 46 percent of the facilities had more than 13 percent of the

population living below the poverty level within one mile of the

facility.

H. Potential Costs and Impacts of Subtitle C Regulation

The analysis presented in the RTC indicates that if CKD were

managed as a RCRA hazardous waste under the full Subtitle C regulatory

scheme, including minimum technology (RCRA section 3004(o)) and land

disposal restriction requirements (RCRA section 3004(d-g)), there would

most likely be significant compliance costs for a substantial number of

cement plants. Costs would, however, vary considerably, depending on

individual plant efficiencies in converting raw materials into finished

cement. For the 25 percent or so of U.S. cement plants that presently

generate little or no wasted dust for on-site disposal, compliance

costs for CKD would be negligible. For the remaining 75 percent, the

Agency estimates the annualized incremental compliance costs at between

$2 million and $14 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 [[Page 7372]] 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 by-product sales to help offset capital and operating

costs, as well as reducing basic raw material requirements. Further

examination of the economics of the Passamaquoddy recovery scrubber, as

reported in the September NODA document, indicated that prospective

unit costs for plants with lower CKD quantities would be higher than

originally estimated in the RTC. However, otherwise, the Agency

continues to believe that this and other alternatives can potentially

serve as technically and economically viable options to land disposal

of CKD, at least for some plants.

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 determinations9. 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.)

\9\For a discussion of EPA's approach in combining the RCRA

study factors, see the discussion of the Agency's approach in the

Final Regulatory Determination and Final Rule for Special Wastes

From Mineral Processing (56 FR 27300, June 13, 1991).

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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 [[Page 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 off-site beneficial uses. In the RTC and NODA documents, the

Agency reported on plant-specific risk screening and quantitative risk

modeling conducted to evaluate potential risks from current and

plausible future management of CKD. As summarized in the findings

above, current on-site land management practices appear generally to

pose relatively low risks to human health via direct pathways of

contaminant transport and exposure.

However, with respect to possible ground water contamination, a

large percentage of cement plants (and CKD management units at those

cement plants) are located in areas of karst terrain, many of which may

be underlain by bedrock with hydrological characteristics conducive to

relatively direct leachate transport to off-site locations. In karst

aquifers, contaminants can potentially migrate long distances through

open conduits with little of the filtration, adsorption, and dispersion

that are typical of contaminant dispersal in porous bedrock.

In addition, modeling of windblown dust from CKD management areas

suggests that dust piles, when uncontrolled (i.e., uncovered and dry),

may typically release sufficient quantities of fine particulates to

exceed health-based National Ambient Air Quality Standards (NAAQS) at

plant boundaries, and sometimes as far away as nearby residences.

The Agency's quantitative modeling of ``indirect'' food chain

pathways, both aquatic and agricultural, indicates potential human

health effects, both cancer and non-cancer. A wide range of chemical

constituents, including arsenic, cadmium, chromium, barium, thallium,

lead, and dioxins, were indicated as constituents of concern at various

plants. Because some CKD disposal units are located near, and in some

instances immediately adjacent to, farm fields, rural residences with

gardens, or surface waters containing fish, there is potential for

indirect risk from the consumption of CKD-contaminated beef, vegetables

and fish, as well as ingestion of CKD-contaminated water during

recreational swimming.

Although limited by available data and assessment methodology, the

Agency's risk assessment studies also indicated potentials for adverse

aquatic ecological effects due to possible chemical releases to streams

and lakes adjacent to some cement plants. Aquatic ecological damages

due to siltation and sedimentation were not specifically studied in the

risk assessment, but were observed in field visits and reported as a

problem in damage case documents and in public comments.

The Agency's risk assessment for off-site beneficial uses of CKD

indicated that, except for direct application as a lime/fertilizer

substitute, most off-site uses do not pose significant risks. Direct

cropland application, however, occurs at a number of locations in the

country and is essentially unregulated at the state and federal levels.

Analysis suggests that, at plausible application rates, CKD that

contain sufficiently high concentrations of arsenic or other metals or

dioxins (as documented in the Agency's CKD constituent data base),

could cause food chain risks of concern that may warrant some type of

regulation for these off-site uses.

Substep 3. Does CKD Exhibit Any of the Characteristics of Hazardous

Waste?

Although all of the toxicity characteristic (TC) metals (arsenic,

barium, cadmium, chromium, lead, mercury, selenium, and silver) were

detected in CKD, CKD exhibits the toxicity characteristic infrequently,

and only for certain metals. This is based analysis of the CKD

analytical data available to the Agency. Although CKD itself is not

corrosive under EPA's rules because it is a solid, water-CKD mixtures

are highly alkaline. Data presented in the RTC indicate that the pH of

CKD leachates (using standard EPA leach test procedures) are typically

between 11 and 13 standard units. In addition, the elevated pH of a

CKD-water mixture is a prominent factor in 10 out of 14 cases of damage

(documented and potential) to surface water and/or ground water. 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

[[Page 7374]] 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.

\10\The 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.

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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 study12.

\11\One plant has submitted a video to the Agency that indicates

that its CKD management practices have changed.

\12\A general description of these emissions can be found in the

EPA CKD sampling trip reports which are located in the support

section of the RCRA docket on the Report to Congress, Docket No. F-

94-RCKA-FFFFF.

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Numeric standards for point source discharges of wastewater from

cement facilities have been established under the Clean Water Act, and

are administered through the NPDES permit program (40 CFR part 122)

along with industry-tailored effluent limitations for runoff from

materials storage piles (40 CFR part 411). Indirect discharges via

publicly owned treatment works (POTWs) are subject to general

pretreatment standards under 40 CFR part 403. Wastewater discharges

from individual facilities may also be subject to state water quality

standards and state or local effluent discharge standards.

In addition, EPA proposed a multi-sector stormwater general permit

under the NPDES program on November 19, 1993 (58 FR 61146). The

proposed permit contains limits to control effluent discharges specific

to the cement industry (among other industries) and requires each plant

to develop facility-specific pollution prevention plans and demonstrate

best 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 EPA-approved wellhead

protection program.

Water quality regulations vary from state to state. California's

water quality program includes long range resource planning, annual

inspection of all facilities, and compliance with stringent surface

water and ground water quality standards. The California program also

grants broad enforcement authority to its State Water Resources Control

Boards. Pennsylvania and Michigan inspect major industrial dischargers

(including some cement plants) annually, and enforce permit

requirements. In addition, Michigan requires compliance with ground

water quality standards. Pennsylvania approaches ground water

protection through permit requirements for wastewater and stormwater

discharges, but has no separate ground water quality standards. In

Texas, cement plants are considered ``minor'' facilities and are not

inspected annually like all facilities that have major discharges,

unless the facility burns hazardous waste, has a past record of

environmental violations, or has a complaint filed against it. However,

Texas is considering requiring [[Page 7375]] 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.

\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.

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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 EPA-administered 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

[[Page 7376]] 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. [[Page 7377]]

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

\14\ USEPA, 1992. EPA Guidelines for Implementing the Regulatory

Flexibility Act, Office of Regulatory Management and Evaluation,

Office of Policy, Planning, and Evaluation.

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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.

\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.

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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]

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