[Federal Register Volume 60, Number 25 (Tuesday, February 7, 1995)]
[Rules and Regulations]
[Pages 7366-7377]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2832]




[[Page 7365]]

_______________________________________________________________________

Part IV





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 261



Regulatory Determination on Cement Kiln Dust; Final Rule

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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA 530-Z95-003; FRL-5149-6]
RIN 2050-AD99


Regulatory Determination on Cement Kiln Dust

AGENCY: Environmental Protection Agency.

ACTION: Regulatory determination.

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

SUMMARY: Today's action presents the Environmental Protection Agency's 
(EPA) regulatory determination on cement kiln dust (CKD) waste. This 
action is required by the Resource Conservation and Recovery Act 
(RCRA). EPA has concluded that additional control of CKD is warranted 
in order to protect the public from human health risks and to prevent 
environmental damage resulting from current disposal of this waste. The 
primary environmental concerns to be addressed through additional 
controls are documented damages to ground water and potable water 
supplies, and potential human health risks from inhalation of airborne 
CKD and ingestion via food chain pathways. The Agency has decided to 
take a common sense approach in imposing such controls. In order to 
avoid duplication among regulatory programs, the Agency will use, as 
appropriate, its various authorities under the Clean Air Act, Clean 
Water Act, and RCRA to address the relevant pathways of potential 
contaminant releases from CKD.
    Under Subtitle C of RCRA, the Agency will develop a tailored set of 
standards for CKD that controls releases to ground water. The tailored 
standards will protect human health and the environment, while imposing 
a minimal burden on the regulated community. Until the tailored 
regulations are published by the Agency, CKD will retain the Bevill 
exemption and the status of CKD under RCRA Subtitle C will remain 
unchanged. Those cement manufacturing facilities that burn RCRA 
hazardous waste in their kilns will still be required to test their CKD 
to see that it remains unaffected by the combustion of hazardous waste.
    EPA has not included an evaluation of clinker or other products or 
by-products of cement production in this regulatory determination. In 
the absence of the CKD regulatory exemption, under certain regulatory 
scenarios clinker produced from re-introduced CKD could be considered a 
hazardous waste. However, as part of the regulations that EPA will 
promulgate as a result of today's determination, EPA intends to exclude 
clinker from regulation as a derived-from hazardous waste when CKD is 
re-introduced. At this time, EPA has no indication that such clinker 
poses an unacceptable threat to human health or the environment.

ADDRESSES: Copies of this regulatory determination and the supporting 
record docket are available for public inspection and copying at the 
RCRA docket, 401 M Street, SW., Washington, DC, Room M2616, 2nd floor, 
Waterside Mall. The docket number for this action is F-94-RCKD-FFFFF. 
The docket is open from 9 to 4 p.m., Monday through Friday, except 
federal holidays. In order to access the docket, please call (202) 260-
9327 to make an appointment. Copies are free up to 100 pages and 
thereafter cost $0.15/page.
    This document and the Response to Public Comments document are also 
available on the EPA's Clean-up Information Bulletin Board (CLU-IN). To 
access CLU-IN with a modem of up to 28,800 baud, dial (301) 589-8366. 
First-time users will be asked to input some initial registration 
information. Next, select ``D'' (download) from the main menu. Input 
the file name ``CKD6.ZIP'' to download this notice. Input the file 
names ``CKD7.ZIP'' and ``CKD8.ZIP'' to download the two files that 
contain the two response to public comments documents. Follow the 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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

     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.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    Because in today's regulatory determination EPA does not establish 
new regulatory controls, the Agency has not conducted a full Regulatory 
Flexibility Analysis in support of today's action. EPA will, however, 
consider the potential impacts of the new regulations that will be 
developed as a result of this action on these small entities. In the 
process, the Agency will examine potential impacts of regulatory 
alternatives on these entities, and identify and evaluate alternative 
approaches that could mitigate such impacts, as required by the RFA.

VII. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, 10/4/93), the Agency must 
determine whether the regulatory action is ``significant'' and 
therefore subject to OMB review and the requirements of the Executive 
Order. The Order defines ``significant regulatory action'' as one that 
is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that this rule is a ``significant regulatory action'' 
because it raises novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order. This action was submitted to OMB for review. 
Changes made in response to OMB suggestions or recommendations will be 
documented in the public record.

VIII. Regulatory Determination Docket

    Documents related to this regulatory determination, including EPA's 
response to the public comments, are available for inspection in the 
docket. The relevant docket numbers are: F-95-RCKD-FFFFF for the 
regulatory determination, F-94-RCKA-FFFFF for the RTC and F-94-RC2A-
FFFFF for the NODA. The EPA RCRA docket is located at the following 
address: United States Environmental Protection Agency, EPA RCRA 
Docket, Room M2616, 401 M Street SW., Washington, DC 20460. The docket 
is open from 9 a.m. to 4 p.m., Monday through Friday, except for 
Federal holidays. The public must make an appointment to review docket 
materials. Call the docket clerk at (202) 260-9327. Copies are free up 
to 100 pages and thereafter cost $0.15 per page.
    In addition to the data and information that was included in the 
docket to support the RTC on CKD and the Technical Background 
Documents, the docket also includes the following documents:
     Analysis of and Responses to Public Comments on the Report 
To Congress; and
     Analysis of and Response to Comments on the Notice of Data 
Availability.

List of Subjects in 40 CFR Part 261

    Environmental protection, Bevill exemption, Cement kiln dust, 
Incineration, Special wastes.

    Dated: January 31, 1995.
Carol M. Browner,
Administrator.
[FR Doc. 95-2832 Filed 2-6-95; 8:45 am]
BILLING CODE 6560-50-P