[Federal Register Volume 60, Number 147 (Tuesday, August 1, 1995)]
[Notices]
[Pages 39169-39173]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18871]
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ENVIRONMENTAL PROTECTION AGENCY
[OPPTS-211042A; FRL-4968-9]
TSCA Section 21 Petition; Response to Citizens' Petition
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice; Response to citizens' petition.
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SUMMARY: On April 19, 1995, EPA received a petition under section 21 of
the Toxic Substances Control Act (TSCA), 15 U.S.C. 2620, signed by 24
environmental groups located in 10 western and mid-western States. The
petition asserts that cement-producing plants that burn hazardous
waste-derived fuel (WDF) in their kilns have higher concentrations of
toxic metals in their cement end-products, and that these products
therefore pose risks to end-users. The petition requests that EPA
promulgate a rule under section 6 of TSCA requiring those producers who
burn WDF to label their cement with a notice advising consumers of that
fact, and cautioning them to avoid emitting or breathing the cement
dust and to avoid direct contact.
The petition is denied on two grounds: (a) petitioners have not
substantiated the assertion that burning WDF increases risks posed to
end-users of cement; and (b) for risk protection purposes, the label
requested essentially duplicates labeling already required by the
Occupational Safety and Health Administration (OSHA).
FOR FURTHER INFORMATION CONTACT: Susan B. Hazen, Director,
Environmental Assistance Division (7408), Office of Pollution
Prevention and Toxics, Environmental Protection Agency, Rm. E-543, 401
M St. SW., Washington, DC 20460, (202-260-1024), Internet: TSCA-
H[email protected].
SUPPLEMENTARY INFORMATION:
I. Statutory Requirements
Section 21 of TSCA provides that any person may petition EPA to
initiate proceedings for issuance of rules under sections 4, 6, and 8
of TSCA, or to issue orders under sections 5(e) or 6(b)(2) of TSCA. A
section 21 petition must set forth facts which petitioners believe
establish the need for the rules requested. EPA is required to grant or
deny the petition within 90 days. If EPA grants the petition, the
Agency must promptly commence an appropriate proceeding. If EPA denies
the petition, the Agency must publish its reasons in the Federal
Register.
Within 60 days of denial, or if EPA fails to respond in 90 days,
the petitioner may commence a civil action in a U.S. district court to
compel initiation of the requested rulemaking. For a petition for a new
rule, the court must provide opportunity for the petition to be
considered de novo. After hearing the evidence, the court can order EPA
to initiate the requested action.
II. Approach to Reviewing Petition
Immediately following receipt of the petition, on April 19th, a
Workgroup was established with representatives from EPA's Offices of
Pollution Prevention and Toxics; Solid Waste and Emergency Response;
and General Counsel. After receiving an unsolicited comment on the
petition, on May 15th, the Agency decided to publish a Notice of
Receipt (60 FR 30538, June 9, 1995), in order to afford all interested
parties an opportunity to comment. In keeping with the 90 day deadline
for reaching closure, the Workgroup briefed the Director of the Office
of Pollution Prevention and Toxics on May 17th, and the Office Director
subsequently presented the case to the Assistant Administrator for
Prevention, Pesticides and Toxic Substances for a decision.
[[Page 39170]]
In response to the FR Notice of Receipt, comments were received
from 8 individuals and 10 organizations. Several samples of current
cement packaging and Material Safety Data Sheets (MSDSs) were also
received. All comments were reviewed and considered by the Agency
before reaching its final determination to deny the petition.
III. Background
On April 19, 1995, EPA received a petition under section 21 of the
Toxic Substances Control Act (TSCA), 15 U.S.C. 2620, signed by 24
environmental groups located in 10 western and mid-western States. The
petition asserts that cement-producing plants that burn hazardous
waste-derived fuel (WDF) in their kilns have higher concentrations of
toxic metals in their cement end-products, and that these products
therefore pose risks to end-users. The petition requests that EPA
promulgate a rule under section 6 of the TSCA requiring those producers
who burn WDF to label their products, in both English and Spanish, with
the following label.
WARNING: THIS PRODUCT WAS MADE WHILE BURNING HAZARDOUS WASTE AND
CONTAINS RESIDUALS OF THAT HAZARDOUS WASTE, INCLUDING INCREASED
AMOUNTS OF TOXIC AND CARCINOGENIC METALS. AVOID EMITTING AND
BREATHING DUST FROM THIS PRODUCT AND AVOID DIRECT CONTACT WITH THIS
PRODUCT.
Cement is made by heating limestone, clay and other substances to
very high temperatures in rotary kilns to form a granular material
called ``clinker'', which is then cooled and ground up with gypsum to
make cement powder. Cement kiln dust (CKD) waste is generated during
the production of clinker. Releases to air, water and land from cement
kilns are regulated under the Clean Air Act (CAA), Clean Water Act
(CWA), and Resource Conservation and Recovery Act (RCRA). In 1992, 23
of the 111 domestic cement-producing plants burned WDF to supplement
traditional fossil fuels (FF) (Ref. 3, p.7367). Air emissions and
disposal of residues from kilns burning WDF are regulated under the
Boiler and Industrial Furnace (BIF) regulations issued under RCRA.
While not central to the petition, CKD is tangentially related to
petitioners's concerns. CKD is particulate matter, including toxic
metals, that has been removed from kiln stack gases by air pollution
control equipment. Once removed, CKD may be: (a) reintroduced into the
kiln as feedstock; (b) used for such beneficial purposes as general
construction, waste stabilization, or as a substitute for lime and
fertilizer in agriculture; or (c) simply disposed. Pursuant to RCRA
section 8002(o), EPA published a Report to Congress on Cement Kiln Dust
in 1993 in which the Agency concluded that although risks associated
with CKD management are generally low, CKD could, under some
circumstances, pose a danger to human health and the environment (Ref.
2). No decision was made at that time regarding the need to treat CKD
as hazardous waste under RCRA Subtitle C.
In February of this year, pursuant to RCRA section 3001(b)(3)(C),
the Agency published a Regulatory Determination on Cement Kiln Dust (60
FR 7366, February 7,1995) in which it concluded that additional control
of CKD is warranted, and that it would use RCRA Subtitle C and other
authorities to control risks where appropriate (Ref. 3). Pending
development of those regulations, CKD retains its exemption from
regulation under Subtitle C pursuant to the Bevill Amendment contained
in section 3001(b)(3)(A). The Regulatory Determination also stated that
the Agency would propose exclusion of clinker as ``derived-from''
hazardous waste when CKD is reintroduced into the kiln as feedstock.
Although the Bevill Amendment conditionally exempted CKD from
regulation as hazardous waste under Subtitle C, the BIF regulations
require kilns burning WDF to test their CKD to ensure that it is not
significantly affected by the practice (40 CFR 260.112).
The activities described above address CKD waste disposal issues
(the focus of both the Report to Congress and the Regulatory
Determination). The petition, on the other hand, is primarily concerned
about potential hazards to users posed by toxic metals introduced into
cement via combustion of WDF. There are, however, four sources of toxic
metals in cement: (1) the original feedstock; (2) CKD recycled as
feedstock; (3) the fuel, both FF and WDF, used to heat the kiln; and
(4) equipment and processes used, particularly refractory kiln bricks
and the steel balls used to grind clinker (Ref. 1, p.50). The relative
contribution of each of the four potential sources varies by an unknown
extent from facility to facility and from time to time. The
concentrations of metals in cement from any given plant are a function
of complex interactions among all of these variables. A plant burning
FF, using feedstock with a high metal content, and recycling CKD
extensively, for example, might produce cement with high concentrations
of metals, while one burning WDF using the same feedstock, but
discarding most of its CKD, might produce cement with lower
concentrations.
IV. Adverse Effects Associated with Cement
Based on information provided by petitioners, adverse effects
associated with cement cited in the petition include: (a) cement eczema
or cement dermatitis; (b) lung cancer; (c) asthma; and (d) a variety of
other effects including nosebleeds, ulcers, respiratory distress and
pneumoconiosis. Of these, cement dermatitis is the most common effect
associated with cement, because the relationship between exposure to
cement and dermatitis is well-established, and because the effect can
occur at relatively low levels of exposure. Frank cement dermatitis is
generally preceded by a number of years of skin irritation, abrasions,
and cracks. Once established, cement dermatitis is chronic, even if
there is no further exposure to cement. The dermatitis sensitization
threshold is reported to be in the range of 10 to 15 parts per million
(ppm) hexavalent chromium in cement.
V. Analysis of Petition
As general background, petitioners argue that CAA, CWA and RCRA
regulations are tightening restrictions on kiln-generated discharges of
toxic metals to air, water and land, without restricting transfer of
these metals into the cement itself. They contend that this incentive
structure has increased the toxic metals content of cement. However,
petitioners offer no evidence that concentrations of metals in cement
have in fact increased. With respect to the objective of the petition,
EPA notes that if restricting toxic metals from all compartments except
the end-product is a problem, it would be a problem for all kilns, not
simply those burning WDF. The essence of the petition is the more
specific assertion that burning WDF increases the amount of toxic
metals in cement.
The petition's assertion is based entirely upon evidence
petitioners adduce from a 1992 study, published by the Portland Cement
Association (PCA), that presented data on heavy metal concentrations
found in both CKD and cement produced in facilities using FF only, and
in facilities using WDF (Ref. 1). The study determined both ``total''
(acid soluble) and ``leachable'' (water soluble) concentrations of 12
metals (arsenic, antimony, barium, beryllium, cadmium, chromium, lead,
mercury, nickel, selenium, silver and thallium) in both CKD and cement
drawn from 97
[[Page 39171]]
North American kilns. The results were tabulated, among other ways,
according to whether the originating kilns burned FF or WDF. Relevant
findings of the study were that (a) the mean ``total metal''
concentration of only one metal, chromium, was statistically
significantly higher in cement from kilns burning WDF than from kilns
burning FF; (b) for the remaining 11, some of the ``total metal''
concentrations were higher and some lower , but none by statistically
significant amounts; and (c) none of the ``leachable metal''
concentrations differed significantly in cement for any of the 12
metals. Evidence brought forth by petitioners therefore suggests only
that burning WDF may increase concentrations of chromium in cement; no
empirical case is made for metals in general.
Petitioners, however, have not established that burning WDF
increases even chromium concentrations in cement. There are two flaws
in the reasoning and evidence presented. The first has to do with the
inability of the cited PCA study to identify the source of metal
concentrations found in the cement samples. Although the study
documented statistically significant higher mean levels of total
chromium (113 vs. 61.7 ppm) in cement from the kilns burning WDF, the
authors of that study explicitly cautioned against attributing the
difference to type of fuel burned:
Identification of the specific sources of the twelve chemical
elements in the samples is beyond the scope of this study. Sources
include fuel, raw materials, refractories, and processing equipment
that comes into contact with the materials. For any particular kiln
system, the concentration of these elements in cement and kiln dust
is a function of the manufacturing process and the total metals
input from all sources.
Because of widespread interest in the burning of alternate fuels
in cement kilns, comparisons are presented in this data summary
between kiln systems using waste fuels and coal, coke or natural
gas. However, the reader should not infer that observed differences
are necessarily attributable to the waste fuels, as that is only one
of many sources of metals in this multivariate system. (Ref. 1; p.1
of Data Summary appended to reference)
Construction Technology Laboratories (CTL), the firm PCA used to
conduct the study, reiterated this concern in an April 24, 1995 letter
addressed to the Executive Director of the Cement Kiln Recycling
Coalition (CKRC), a trade association of cement producers that burn
WDF. That letter, forwarded by CKRC to EPA on May 15, 1995, states in
part, that ``It was not the purpose of the study to determine the
specific sources of trace elements in cements. The work on which this
report is based did not include a complete material balance for each
plant that submitted samples. Therefore, increases or decreases in
trace metals concentrations cannot necessarily be attributed to fuel
type.''
The second point has to do with the substance selected by
petitioners for discussion. They highlighted the statistically
significant higher concentration of ``total chromium'' found by the PCA
study in cement from kilns that burned WDF. The following table
(derived from Ref. 1) also shows the concentrations of ``leachable
chromium'' found in the same study. The mean difference in leachable
chromium between kilns burning WDF and FF is not statistically
significant. The evidence from the study cited by petitioners for
increased chromium in kilns burning WDF is therefore mixed.
Total and Leachable Chromium Levels Found in Cement Produced Burning WDF
and FF (ppm)
------------------------------------------------------------------------
Total Chromium Leachable Chromium
Levels ---------------------------------------------------
WDF Cement FF Cement WDF Cement FF Cement
------------------------------------------------------------------------
Minimum............. 33.3 24.6 3 <1.2
Mean................ 113 61.7 12 10
Maximum............. 422 214 24 31
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This table also sheds light on any practical impact WDF might add
to risks posed by chromium in cement. The mean concentrations of
leachable chromium in cement produced with either WDF or FF are in the
10 to 15 ppm range -- levels at which cement dermatitis could be
expected if precautionary steps were not taken to avoid dermal contact.
The maximum levels of leachable chromium detected in both types of
cement are well above the upper end of that range. For total chromium,
all values are well above the threshold levels. The risks are therefore
potentially present in cement regardless of the type of fuel used. If
these risks are considered sufficiently serious to warrant labeling,
therefore, the precautionary warning sought by petitioners should
arguably be affixed to all cement packaging, not simply to cement
produced in kilns burning WDF.
The only study petitioners cite as demonstrating that burning WDF
increases levels of chromium (or any other metal) in cement more than
burning FF, therefore, cannot confirm that assertion. It further
suggests that even if the assertion were demonstrated, the magnitude of
the increase in the amount of chromium, relative to the amount
typically found in all cement, would not materially alter the pre-
existing level of potential risk. In summary, the only evidence
petitioners cite as evidence that burning WDF adds toxic metals to
cement is a study which:
Found that concentrations of ``total chromium'', not
metals in general, were statistically significantly higher in cement
produced in kilns burning WDF--but did not, and was not intended to,
attribute that difference to WDF;
Found no statistically significant difference in the
concentration of leachable chromium in cement produced with and without
burning WDF; and
Found that burning both FF and WDF generates
concentrations of chromium in cement at and above reported threshold
levels for cement dermatitis.
EPA's analysis of (a) the material presented by petitioners, and
(b) the PCA study1, has concluded that petitioners have not
provided convincing evidence for their basic contention, or for the
need for regulation under TSCA.
1 The petition did not include the PCA study. The findings
reported in the petition regarding the PCA study were drawn from
data about that study cited in a secondary article supplied by
petitioners. The caveats on use of the study's findings, contained
in the original, did not appear in the secondary work.
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VI. Other Evidence
Other data are available that bear on the question of whether use
of WDF adds metals to cement. EPA's Regulatory Determination on Cement
Kiln Dust, although not concerned with cement, did compare metal
[[Page 39172]]
concentrations found in CKD produced in plants burning FF and WDF. That
determination noted that:
For many of the toxic metals, the concentrations detected in
kiln dust were not significantly different whether the dust is
generated from kilns that burn or do not burn hazardous waste.
However, for lead, cadmium, and chromium, the mean concentrations
found in CKD generated by kilns that burn hazardous waste is
measurably higher than in CKD from those kilns that do not burn
hazardous waste; conversely, thallium and barium concentrations are
measurably higher in CKD from kilns that do not burn hazardous waste
(Ref. 3, p.7369).
Again, the evidence is inconsistent; concentrations of some metals
in WDF-generated CKD are higher, but others are lower. The continuing
difficulty, however, is in establishing causality. As previously noted,
the concentration of metals found in any given plant's cement results
from complex interactions among several site-specific variables; in the
absence of a study controlling for these variables, one cannot
confidently attribute variations in metal concentrations among plants
to any one source. There is one industry study, A Comparison of Metal
and Organic Concentrations in Cement and Clinker Made With Fossil Fuels
to Cement and Clinker Made with Waste Derived Fuels (Ref. 4), that
determined the concentrations of metals in cement produced at a single
facility that initially used WDF, and then switched temporarily to FF.
Other operating conditions were held constant in both time periods, and
20 cement samples were taken in each. That study found detectable
amounts of four metals. In one phase (pH=5 extract waters), the mean
concentration of antimony was statistically significantly higher in the
cement generated burning WDF, but there were no significant differences
for either cadmium or chromium. In the second phase (pH=10 extract
waters), the mean concentration of chromium in cement produced while
burning WDF was statistically significantly lower than in cement
produced burning FF--exactly opposite to the PCA findings. The
differences for nickel were insignificant.
The totality of evidence, then, does not confirm that burning WDF
in kilns materially increases concentrations of metals in cement. It
also shows that decreased concentrations of metals can occur, and the
net human health potential, if any, is simply unknown. In any event,
based on the available information, the type of fuel burned in kilns
appears to be a minor determinant of the concentration of metals in
cement relative to (a) the extent to which CKD is recycled as
feedstock, and (b) the metals content of the original feedstock.
Finally, the evidence indicates that all domestic2 cement poses a
potential problem to long-term users who fail to take precautionary
steps to avoid exposures. Any labeling intended to warn users of this
hazard should therefore be applied to all cement, not simply to cement
produced with WDF.
2There is some evidence that the hexavalent chromium content of
cement can be reduced by adding ferrous sulfate. Petitioners cite
references indicating that Denmark has made it illegal to sell
cement with more than 2 ppm CR (VI).
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VII. OSHA's Labeling Requirement
The current regulatory situation recognizes the need for
comprehensive labeling of cement. Although petitioners state that the
problems they discuss cannot be adequately addressed under other
statutes, OSHA's Hazard Communication Standard (29 CFR 1910.1200) does,
in fact, require cement manufacturers to label virtually all containers
of their products with essentially all of the information petitioners
want to convey, other than the fact that the cement was produced
through burning of WDF. This requirement extends to all cement, not
just that produced with WDF. Pertinent provisions of the Hazard
Communication Standard require chemical manufacturers (cement
producers, for this purpose, are considered chemical manufacturers) of
products for which there is evidence of health hazard to label all
containers of the product providing: (a) the identity of the chemical;
(b) appropriate hazard warnings; and (c) the name and address of the
manufacturer (29 CFR 1910.1200(f)). Manufacturers must also ensure that
distributors and employers using the product are furnished with
appropriate MSDS, and downstream wholesalers and retailers are required
to ensure that these warnings are carried with the product through the
distribution chain to the ultimate end-user. A typical cement bag label
reads as follows:
CAUTION EYE AND SKIN IRRITANT
Contains Portland Cement (CAS No. 65997-15-1). Do not allow
contact with eyes or skin. Contains concrete aggregates Sand/Gravel
(CAS No. 14808-60-7). Avoid breathing dust--respirable Silica may
cause serious lung problems.
Use gloves, goggles, dust masks, and waterproof protective
clothing. If material gets into eyes, rinse immediately with clean
water and seek prompt medical attention. If material gets onto skin
or saturates clothing, rinse immediately and thoroughly with clean
water. CONTACT WITH WET PORTLAND CEMENT MAY CAUSE SERIOUS SKIN
BURNS.''
EPA believes that the hazard communication label required by OSHA
provides sufficient warning to users of cement to allow them to take
appropriate steps to protect themselves from exposure to cement
products.
VIII. Comments Received
EPA published a Notice of Receipt of the Petition in the Federal
Register (60 FR 30538; June 9, 1995), in order to provide opportunity
to comment to all interested parties. Comments were received from 8
individuals, all of whom supported the petition, and 10 organizations.
Several samples of current cement packaging and MSDSs were also
received. All comments were reviewed and considered by the Agency
before reaching its final determination to deny the petition.
Six of the 10 organizations wrote in support of the petition. Of
these, 3 were among the 24 signers of the petition itself; 1 is another
environmental group; 1 is a general contractor; and 1, Rollins
Environmental Services, operates hazardous waste incinerators. The
Rollins submission included two studies bearing on the question of the
contribution of WDF to metals in cement. The first study was a mass
balance analysis conducted at Rutgers University with the support of
the Association for Responsible Thermal Treatment (ARTT), an
organization of some hazardous waste incinerator companies. That study
models the operation of cement kilns, and concludes, among other
things, that burning WDF could increase the metals content of cement.
The second study is a risk assessment undertaken by ENVIRON
Corporation, using the data generated by the Rutgers model, and a
portion of the PCA data. These studies were reviewed by EPA, insofar as
time permitted, but did not alter the Agency's decision on the petition
because: (a) there is no apparent justification for substituting
modeling data for the extensive empirical monitoring data available;
(b) the model itself appears flawed in that a light weight aggregate
kiln, rather than a cement kiln, was used in its development; (c) the
model has only recently been developed, and has not yet been peer
reviewed; and (d) the ENVIRON study is largely based upon the
unpersuasive modeling results (Refs. 5 and 6).
The four organizations that wrote in opposition to the petition
included the CKRC; the International Brotherhood of Boilermakers, Iron
Ship Builders, Blacksmiths, Forgers Helpers; LaFarge Corporation, a
cement producer that
[[Page 39173]]
burns WDF; and Union Carbide Corporation, a company that uses cement
kilns to handle wastes produced manufacturing petrochemicals. These
commenters generally noted advantages that acrue from recovering energy
from waste by burning it as fuel in kilns, asserted that petitioners
had not provided sufficient evidence of increased risk, and cited the
current regulatory requirement for labeling.
IX. Disposition of Petition
Based upon (a) the lack of convincing evidence that WDF contributes
materially to the hazards posed by cement; and (b) the fact that
current OSHA regulations already require virtually everything
petitioners request, other than a reference to WDF, the petition is
denied.
X. References
The following references were used in reviewing this petition:
1. Portland Cement Association. An Analysis of Selected Trace
Metals in Cement and Kiln Dust, 1992.
2. USEPA. Report to Congress on Cement Kiln Dust. Office of Solid
Waste and Emergency Response. USEPA 530-S-94-001, December 1993.
3. USEPA. Regulatory Determination on Cement Kiln Dust: Final Rule.
Office of Solid Waste and Emergency Response. USEPA 60 FR 7366,
February 7, 1995.
4. NSF. A Comparison of Metal and Organic Concentrations in Cement
and Clinker made with Fossil Fuels to Cement and Clinkers Made with
Waste Derived Fuels: Final Report. NSF International. November 13,
1995.
5. Review of Comments submitted by Rollins Environmental Services;
memorandum from Oscar Hernandez to Edward Brooks, July 13, 1995.
6. Review of Rutgers' Model as Discussed in Submission by Rollins
Environmental Services: June 26, 1995; memorandum from William A.
Schoenborn to Edward Brooks, July 18, 1995.
XI. Public Record
EPA has established a public record of those documents the Agency
considered in reviewing this petition. The record consists of documents
in the file designated by Docket Number OPPT-211042, located in the
TSCA Public Docket Office. This Docket is available for inspection from
12 noon to 4 p.m., Monday through Friday, except legal holidays, in the
TSCA Nonconfidential Information Center, Rm. NEB-607, 401 M St., SW.,
Washington, DC 20460. The public record consists of all documents in
the OPPT file and all documents cited in the documents in that file.
List of Subjects
Environmental Protection, hazardous waste.
Dated: July 24, 1995.
Susan H. Wayland,
Assistant Administrator for Prevention, Pesticides and Toxic
Substances.
[FR Doc. 95-18871 Filed 7-31-95; 8:45 am]
BILLING CODE 6560-50-F