[Federal Register Volume 72, Number 137 (Wednesday, July 18, 2007)]
[Rules and Regulations]
[Page 39325]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-13544]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 260 and 278

[EPA-HQ-RCRA-2006-0097; FRL-8326-1]
RIN 2050-AG27


Criteria for the Safe and Environmentally Protective Use of 
Granular Mine Tailings Known as ``Chat''

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: The Environmental Protection Agency (EPA or the Agency) is 
promulgating mandatory criteria for the environmentally protective use 
of chat in transportation projects carried out, in whole or in part, 
with Federal funds. Specifically, chat used in such transportation 
projects will be safe and environmentally protective if it is used in 
asphalt concrete, in slurry seals, microsurfacing, or in epoxy seals 
for anti-skid on bridge decking. Chat used in such transportation 
projects will also meet EPA's criteria if it is used in Portland cement 
concrete, flowable fill, stabilized base, chip seals, or as road base 
providing, on a case-by-case basis, either: Synthetic Precipitation 
Leaching Procedure (SPLP, EPA SW-846 Method 1312) tests are conducted 
on the proposed material and the leachate testing results show that 
concentrations in the leachate do not exceed the Drinking Water 
Standards for lead and cadmium and the fresh water chronic National 
Recommended Water Quality Criterion for zinc of 120 ug/l; or EPA (or a 
State environmental Agency, if it chooses to do so) has determined, 
based on a site-specific risk assessment and after notice and 
opportunity for public comment, that the releases from the chat mixture 
in its proposed use will not cause an exceedance of the National 
Primary Drinking Water Standards for lead and cadmium in potential 
drinking water sources and the fresh water chronic National Recommended 
Water Quality Criterion for zinc of 120 ug/l in surface water. 
Furthermore, this rule also establishes a criterion that other uses of 
chat will be safe and environmentally protective and are acceptable if 
they are part of, and otherwise authorized by, a State or Federal 
response action undertaken in accordance with Federal or State 
environmental laws, with consideration of a site-specific risk 
assessment. This rule does not require that chat be sized (dry or wet) 
prior to its use, as long as this rule's criteria are complied with. 
EPA is also establishing recommended criteria as guidance on the 
environmentally protective use of chat for non-transportation cement 
and concrete projects. Finally, the Agency is establishing 
certification and recordkeeping requirements for all chat, except that 
under the jurisdiction of the U.S. Department of Interior, Bureau of 
Indian Affairs (BIA). The chat covered by this rule is from the lead 
and zinc mining areas of Oklahoma, Kansas and Missouri, known as the 
Tri-State Mining District.

DATES: This final rule is effective on September 17, 2007.
    The incorporation by reference of certain publications listed in 
this rule is approved by the Director of the Federal Register as of 
September 17, 2007.

ADDRESSES: The public docket for this final rule, Docket ID No EPA-HQ-
RCRA-2006-0097, contains the information related to this rulemaking, 
including the response to comment document. All documents in the docket 
are listed in the http://www.regulations.gov index. Although listed in 
the index, some information may not be publicly available, e.g., 
Confidential Business Information or other information the disclosure 
of which is restricted by statute. Certain other material, such as 
copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the EPA Docket, EPA/
DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. 
The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The telephone number of the 
Public Reading Room is 202-566-1744, and the telephone number to make 
an appointment to view the docket is 202-566-0276.

FOR FURTHER INFORMATION CONTACT: Stephen Hoffman, U.S. Environmental 
Protection Agency, 1200 Pennsylvania Avenue, NW, Washington, DC, 20460-
0002, Mail Code 5306P; telephone number: 703-308-8413; fax number: 703-
308-8686; e-mail address: [email protected]. Additional 
information on this rulemaking is also available on the internet at 
http://www.epa.gov/epaoswer/other/mining/chat/.
    The contents of this final rule are listed in the following outline

Contents of the Final Rule

I. General Information
    A. Does This Rule Apply to Me?
    B. What Are the Statutory Authorities for This Final Rule?

[[Page 39332]]

    C. Definitions and Acronyms Used in the Rule
II. Summary of This Rule
III. Background Information
IV. Rationale for This Rule and Response to Comments
    A. What Was the Process EPA Used to Develop This Action?
    B. What Criteria Are EPA Establishing for the Use of Chat?
    C. Relationship of This Rule to Other Federal Regulations and 
Guidance
    D. How Does This Rule Affect Chat Sales From Land Administered 
by BIA or Directly From Tribal Lands?
    E. How Does This Rule Affect CERCLA Liability, Records of 
Decision and Response Actions?
    F. How Does This Rule Affect the Use of Federal Funds 
Administered by the U.S. Department of Transportation for 
Transportation Construction Projects?
V. Impacts of the Final Rule
    A. What are the Potential Environmental and Public Health 
Impacts From the Use of Chat in Transportation Construction 
Projects?
    B. What are the Economic Impacts?
VI. State Authority
VII. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act

I. General Information

A. Does This Rule Apply to Me?

    These criteria affect the following entities: aggregate, asphalt, 
cement, and concrete facilities, likely limited to the Tri-State Mining 
District. However, other types of entities not identified could also be 
affected--that is, the list is not intended to be exhaustive, but to 
provide a guide for readers regarding those entities that potentially 
could be affected by this action. To determine whether your facility, 
company, business, organization, etc., is affected by this action, you 
should examine the applicability criteria of this preamble. If you have 
any questions regarding the applicability of this action to a 
particular entity, consult the person listed in the preceding FOR 
FURTHER INFORMATION CONTACT section.

B. What Are the Statutory Authorities for This Final Rule?

    Through Title VI, Section 6018 of the Safe, Accountable, Flexible, 
and Efficient Transportation Equity Act of 2005 (HR 3 or ``the Act''), 
Congress amended Subtitle F of the Solid Waste Disposal Act (42 U.S.C. 
6961 et seq.) by adding Sec. 6006. This provision requires the Agency 
to establish safe and environmentally protective criteria (including an 
evaluation of whether to establish a numerical standard for 
concentrations of lead and other hazardous substances) for the use of 
granular mine tailings from the Tar Creek, Oklahoma Mining District, 
known as `chat,' in cement and concrete projects and in transportation 
construction projects that are carried out, in whole or in part, using 
Federal funds. Section 6006(a)(4) requires that any use of the granular 
mine tailings in a transportation project that is carried out, in whole 
or in part, using Federal funds, meet EPA's established criteria.
    In establishing such criteria, EPA is required to consider ``the 
current and previous uses of granular mine tailings as an aggregate for 
asphalt, and any environmental and public health risks and benefits 
derived from the removal, transportation and use in transportation 
projects of granular mine tailings'' carried out, in whole or in part, 
using Federal funds. EPA is also required to consult with the Secretary 
of Transportation, and other Federal agencies in developing these 
criteria. RCRA section 2002(a) grants the Agency broad rulemaking 
authority, providing that the Administrator is authorized to prescribe 
``such regulations as are necessary to carry out his functions under 
this chapter.''
    While this is a regulation promulgated under RCRA, the rule sets 
the criteria that must be complied with at transportation construction 
projects funded, in whole or in part, with Federal funds. The U.S. 
Department of Transportation (DOT) has statutory responsibility over 
the dispersement of federal funds for transportation projects. 
Therefore, USDOT will make reference to this rule as one of the 
regulatory requirements it requires all states to adhere to as a 
condition of receiving Federal funds for transportation projects using 
chat.

C. Definitions and Acronyms Used in the Rule

     Asphalt--also known as asphalt cement, is liquid bitumen 
(heavy petroleum) used as the binder in cold, warm, and hot mix 
asphalt, chip seals, slurry seals, and microsurfacing. The term 
`asphalt' is sometimes used generically in place of cold, warm, or hot 
mix asphalt.
     Asphalt concrete--a layer, or combination of layers, 
composed of a compacted mixture of an asphalt binder and mineral 
aggregate.
     Pozzolanic--a siliceous material which when combined with 
calcium hydroxide in the presence of moisture exhibits cementitious 
properties.
     State or Federal response action--State or Federal 
response action undertaken pursuant to applicable Federal or State 
environmental laws and with consideration of site-specific risk 
assessments.
     Raw chat--unmodified lead-zinc ore milling waste that 
comes from the Tri-State Mining District.
     Washed chat--lead-zinc ore milling waste that has been 
wet-screened to remove the fine-grained fraction and which is sized so 
as not to pass through a number 40 sieve (0.425 mm opening size) or 
smaller.
     Sized chat--lead-zinc ore milling waste that has been wet-
screened (washed) or dry sieved to remove the fine-grained fraction 
smaller than a number 40 sieve (0.425 mm opening size).
    Non-transportation cement and concrete projects uses are:

--Construction uses of cement and concrete for non-residential 
structural uses limited to weight bearing purposes such as foundations, 
slabs, and concrete wall panels. Other uses include commercial/
industrial parking and sidewalk areas. Uses do not include any 
residential use of cement or concrete (e.g., residential parking areas, 
residential construction, concrete counter tops).

    Transportation construction uses are:

--Hot mix asphalt--a hot mixture of asphalt binder and size-graded 
aggregate, which can be compacted into a uniform dense mass. Hot mix 
asphalt also includes hot mix asphalt sub bases and hot mix asphalt 
bases.
--Portland cement concrete (PCC)--pavements consisting of a PCC slab 
that is usually supported by a granular (made of compacted aggregate) 
or stabilized base and a sub base. In some cases, the PCC slab may be 
overlaid with a layer of hot mix asphalt. PCC uses also include bridge 
supports, bridge decking, abutments, highway sound barriers, jersey 
walls, and non-residential side walks adjacent to highways.
--Flowable fill--a cementitious slurry consisting of a mixture of fine

[[Page 39333]]

aggregate or filler, water, and cementitious materials which is used 
primarily as a backfill in lieu of compacted earth. This mixture is 
capable of filling all voids in irregular excavations, is self 
leveling, and hardens in a matter of a few hours without the need of 
compaction in layers. Most applications for flowable fill involve 
unconfined compressive strengths of 2.1 MPa (300 lb/in2) or less.
--Stabilized base--a class of paving materials that are mixtures of one 
or more sources of aggregate and cementitious materials blended with a 
sufficient amount of water that result in the mixture having a moist 
nonplastic consistency that can be compacted to form a dense mass and 
gain strength. This class of base and sub base materials excludes 
stabilization of soils or aggregates using asphalt concrete or 
emulsified asphalt.
--Granular bases--road base typically constructed by spreading 
aggregates in thin layers of 150 mm (6 inches) to 200 mm (8 inches) and 
compacting each layer by rolling over it with heavy compaction 
equipment. The aggregate base layers serve a variety of purposes, 
including reducing the stress applied to the sub grade layer and 
providing drainage for the pavement structure. The granular sub base 
forms the lowest (bottom) layer of the pavement structure and acts as 
the principal foundation for the subsequent road profile.
--Embankment--a volume of earthen material that is placed and compacted 
for the purpose of raising the grade of a roadway above the level of 
the existing surrounding ground surface.
--Slurry seals--a material composed of emulsified asphalt, aggregate, 
and mineral fillers, such as Portland cement or lime which is applied 
as a thin coating on top of asphalt or PCC road surfaces.
--Micosurfacing--polymer-modified slurry seal.
--Cold mix asphalt--an asphalt/aggregate mixture composed of binders, 
soaps, or other chemicals which allow its use when cold or warm.
--Epoxy seals--the mixture of aggregate in epoxy binders. Epoxy seals 
are typically used as an anti-skid surface on bridge decking.
--Chip seals--a material composed of aggregate placed on top of a layer 
of an asphalt or asphaltic liquid binder. The aggregate may be rolled 
into the binder.

Abbreviations and Acronyms Used in This Document

ANSI American National Standards Institute
AASHTO American Association of State Highway and Transportation 
Officials
ASR Alkali-Silica Reaction
ASTM American Society for Testing and Materials
ATSDR Agency for Toxic Substances and Disease Registry
BDAT Best Demonstrated Available Technology
BIA Bureau of Indian Affairs
CAA Clean Air Act (42 USCA 7401)
CERCLA Comprehensive Environmental Response Compensation and Liability 
Act (42 USCA 9601)
CFR Code of Federal Regulations
CWA Clean Water Act (33 USCA 1251)
DOT Department of Transportation
EO Executive Order
EPA Environmental Protection Agency
FHWA Federal Highway Administration
FR Federal Register
ICR Information Collection Request
IEUBK Integrated Exposure Uptake Biokinetic (Model)
MCL Maximum Contaminant Level (Safe Drinking Water Act)
NIOSH National Institute for Occupational Safety and Health
NPL National Priorities List
ODEQ Oklahoma Department of Environmental Quality
OMB Office of Management and Budget
OSHA Occupational Safety and Health Administration
OU University of Oklahoma
OUs Operable Units
PCC Portland cement concrete
PEL Permissible Exposure Level
ppmv parts per million by volume
ppmw parts per million by weight
Pub. L. Public Law
RCRA Resource Conservation and Recovery Act (42 USCA 6901)
ROD Record of Decision
SMCL Secondary Maximum Contaminant Level (Safe Drinking Water Act)
SPLP Synthetic Precipitation Leaching Procedure (EPA SW 846 Method 
1312)
SSL (Superfund) Soil Screening Level
TCLP Toxicity Characteristic Leaching Procedure (EPA SW 846 Method 
1311)
TWA Time-Weighted Average
USACE U.S. Army Corp of Engineers
U.S.C. United States Code

II. Summary of This Rule

    On April 4, 2006, EPA published a Federal Register notice (64 FR 
16729) seeking comment on a proposed rule that would establish criteria 
for the safe and environmentally protective use of chat in 
transportation projects funded, in whole or in part, with Federal 
funds, as well as proposed guidance on the use of chat in non-
transportation cement and concrete projects. Based on a request to 
extend the comment period, the Agency again sought comment on this 
proposal on May 19, 2006 (71 FR 29117). The purpose of the proposed 
rule was to establish criteria that would identify environmentally 
protective uses of chat in federally funded transportation projects.
    The Agency received many comments in response to its April 4 and 
May 19, 2006 notices. Numerous commenters generally supported the 
proposed rule, while other commenters suggested changes to the 
proposal. After considering all comments, we are finalizing the 
proposed rule with several significant modifications. The final rule, 
similar to the proposed rule, establishes criteria allowing the use of 
chat in federally funded transportation projects when used in asphalt 
concrete for roadway surfaces and in asphalt for road bases and sub 
bases. Upon consideration of the comments, the Agency is expanding its 
criteria for chat in federally funded transportation projects to 
include chat used in slurry seals, microsurfacing, epoxy seals, and 
cold and warm mix asphalt. However, a significant modification to the 
proposal is that before chat can be used in Portland cement concrete 
(PCC) federally funded transportation projects, a person must show, on 
a case by case basis that: (1) Synthetic Precipitation Leaching 
Procedure (SPLP, EPA SW-846 Method 1312) tests are conducted on the 
proposed material and the leachate testing results show that 
concentrations in the leachate do not exceed the National Primary 
Drinking Water Standards for lead and cadmium and the fresh water 
chronic National Recommended Water Quality Criterion for zinc of 120 
ug/l; or (2) EPA (or a State environmental Agency, if it chooses to do 
so) has determined, based on a site-specific risk assessment and after 
notice and opportunity for public comment, that the releases from the 
chat mixture in its proposed use will not cause an exceedance of the 
National Primary Drinking Water Standards for lead and cadmium in 
potential drinking water sources and the fresh water chronic National 
Recommended Water Quality Criterion for zinc of 120 ug/l in surface 
water.
    The Agency is making these changes in response to comments received 
on the proposed rule, including comments

[[Page 39334]]

from the Peer Review Panel, which argued that there were insufficient 
data for the Agency to determine the range of risk from the use of chat 
in PCC. In addition, based on comment, the Agency also concluded that 
the use of chat in flowable fill, stabilized based, chip seals and as 
road base may only be allowed if a case-by-case demonstration is made, 
as described above. This rule's approach will generate the data needed 
to determine if such uses are safe and environmentally protective. Such 
an approach is also similar to that already used by a number of states 
when they make beneficial use determinations.
    The Agency wishes to emphasize that the use of chat in 
transportation projects, funded in whole or in part using Federal 
funds, does not affect a person's obligation to comply with existing 
state or Federal materials specifications. Further discussion of this 
matter is noted in the sections entitled, Physical and Chemical 
Characteristics of Chat and Relationship of this Rule to other Federal 
Regulations and Guidance.
    The Agency has retained its proposal that chat authorized by a 
State or Federal response action undertaken in accordance with Federal 
or State environmental laws need not comply with the criteria in 
sections 278.3 (a) or (b). Such response actions are undertaken with 
consideration of site-specific risk assessments. For example, 
unencapsulated uses of chat may be authorized in a State or Federal 
remediation action. This rule also retains the certification 
requirement, since the Agency believes that such notice is important 
for states and the public to know how and where chat is used in 
transportation.
    EPA believes that this rule will encourage the environmentally 
sound use of chat in transportation projects funded, in whole or in 
part, with Federal funds.

III. Background Information

1. What Is Chat?

    Chat is the waste material that was generated from the extraction 
and beneficiation of lead/zinc minerals to produce lead/zinc 
concentrate in the Tri-State Mining District of Southwest Missouri, 
Southeast Kansas and Northeast Oklahoma. Chat is primarily composed of 
chert, a very hard rock. The primary properties that make chat useful 
in asphalt-based road materials, Portland cement concrete, and epoxies 
are grain size distribution, durability, non-polishing, and low 
moisture absorption.
    In 1980, Congress enacted the Solid Waste Disposal Act Amendments 
(Pub. L. 96-482) which added section 3001(b)(3)(A)(ii) (the Bevill 
Amendment) to RCRA. This section required the Agency to study 
extraction/beneficiation wastes and in 1989 the Agency promulgated a 
rule (54 FR 36592) which exempts extraction/beneficiation wastes from 
regulation under the RCRA Subtitle C hazardous waste regulations (see 
(40 CFR 261.4(b)(7)). Therefore, chat is a ``Bevill exempt'' waste and 
is not subject to regulation under RCRA Subtitle C. This exemption does 
not, however, affect CERCLA jurisdiction over chat, since chat contains 
hazardous substances, nor does it affect the jurisdiction of RCRA 
section 7003, as long as the chat is a solid waste.

2. What Is the Areal Scope for This Action?

    The Act directed EPA to develop criteria for chat from the Tar 
Creek, Oklahoma Mining District. However, there is no definition of the 
term ``Tar Creek Oklahoma Mining District.'' Available literature 
references the ``Tar Creek Superfund site,'' which is in Oklahoma, but 
the term ``mining district'' is only used in reference to the ``Tri-
State Mining District.'' For purposes of this final rule, the areal 
scope includes chat originating from the Tri-State Mining District of 
Ottawa County, Oklahoma, Cherokee County of southeast Kansas, and 
Jasper, Newton, Lawrence and Barry Counties of southwest Missouri, 
regardless of where it is used.
    In 1979, the U.S. Bureau of Mines completed a study to identify all 
mined areas and mine-related hazards which confirmed that lead-zinc 
mining covers a portion of each of the States of Kansas, Missouri, and 
Oklahoma. This area is the same area known as the Tri-State Mining 
District.
    Chat located in this historical mining district is a product of 
similar mineralization processes that sets it aside from related lead-
zinc mineralization districts elsewhere in the United States. The Tri-
State mineralization is specifically associated with wall rock 
alteration into dolomite and microcrystalline silica (chert). The term 
chat is derived from the word ``chert,'' referring to the cherty 
wallrock found in this mining district. The lead/zinc ore and its 
related waste, chat, in this district also have a well defined lead to 
zinc ratio.
    For over one hundred years of activity ending in 1970, the Tri-
State Mining District has been the source of a major share of all the 
lead and zinc mined in the United States. Surface piles of chat, as 
well as underground mining areas, extend uninterrupted across the 
Oklahoma-Kansas State line. In the proposal, the Agency did not include 
Lawrence and Barry counties in southwest Missouri as part of the areal 
extent of the rule, but requested comment on whether it would be 
reasonable to include them (see 71 FR 16732). Commenters requested that 
the Agency expand the scope of the rule to include these two counties 
in southwest Missouri. Based on communication with state regulatory 
officials in Kansas, Missouri, and Oklahoma and review of mineral 
geology studies, EPA concludes that there is no real factual 
distinction between chat derived from these three states, and believes 
that it is reasonable to apply this rule to the areal extent of all 
chat generated and currently located in the following counties: Ottawa 
county, Oklahoma, Cherokee county, Kansas, and Newton, Jasper, Lawrence 
and Barry counties in Missouri.

3. Are There Any Current Regulations of Asphalt, Portland Cement 
Concrete or Chat Washing Facilities?

    Based on the Agency's review of existing state and federal 
regulations, the Agency did not propose to apply any additional 
regulations on chat washing or hot mix asphalt and Portland cement 
concrete plants, although the Agency solicited comment on whether it 
would be prudent for this rule to apply additional controls, over those 
that currently exist, to address environmental releases from these 
types of facilities.\1\ Specifically, at proposal, the Agency assessed 
existing regulations in Oklahoma, Kansas, and Missouri for hot mix 
asphalt plants and Portland cement concrete plants to determine whether 
those operations are appropriately regulated to address environmental 
releases for such facilities. (See memorandum entitled: Evaluation of 
State Regulations in the docket.) Those regulations set standards for 
point and fugitive air emission sources (see Kansas: K.A.R. 28-19-500, 
Missouri: 10 CSR 10-6.170, and Oklahoma: OAC 252:100-7/8/29) and also 
set requirements for water discharges from point source discharges (see 
Kansas: K.A.R. 28-16, Missouri: 10

[[Page 39335]]

CSR 20-6.200, and Oklahoma: OAC 252:606-5-5). In addition, Oklahoma, 
Missouri and Kansas all require that trucks transporting aggregate must 
be covered to reduce fugitive emissions and reduce damage to other 
vehicles from windblown debris. The Bureau of Indian Affairs (BIA) also 
requires that trucks transporting chat from Tribal lands be covered to 
prevent blowing dust from transport.
---------------------------------------------------------------------------

    \1\ It should be noted that the statute does not require the 
Agency to set criteria for facilities that prepare chat prior to its 
use, but restricts the activities for which the Agency is to 
establish criteria for the use of chat in transportation projects 
funded, wholly or in part, with Federal funds. Nevertheless, the 
Agency evaluated the potential for environmental releases from these 
types of facilities--chat washing, hot mix asphalt and Portland 
cement concrete plants as part of the rulemaking.
---------------------------------------------------------------------------

    The Agency also assessed existing regulations in Oklahoma, Kansas, 
and Missouri for chat washing facilities to determine whether chat 
``washing'' operations are adequately managed.\2\ There are two 
commercial chat washing facilities in the Tri-State area and both are 
located within the Tar Creek Superfund site. While the States do not 
have specific regulations applicable to chat washing facilities, these 
facilities are subject to State general fugitive air emissions and 
general storm water discharge regulations. These general State permits 
require that fugitive dusts and runoff be controlled in a fashion so 
that dusts and other pollutants do not leave the property line or the 
boundary of the construction activity. In addition, because the two 
chat washing facilities are located within the Tar Creek Superfund 
site, the Agency may rely on CERCLA authority to establish any 
additional conditions that are considered necessary to be safe and 
environmentally protective.
---------------------------------------------------------------------------

    \2\ While EPA recognizes that some chat is washed or sized prior 
to being used, today's final rule does not require that chat be 
washed prior to its use. Therefore, imposing additional requirements 
for chat washing facilities would seem inappropriate.
---------------------------------------------------------------------------

    The BIA is also establishing air and water standards for chat 
washing facilities located on Tribal lands and lands administered by 
BIA. BIA's requirements include that the chat washing facility manage 
waste water discharges so that they do not exceed State standards, that 
fugitive dusts be controlled, and that fines are handled and disposed 
of so that they do not contaminate ground water. In addition, BIA 
requires all purchasers of chat from Tribal lands, or lands 
administered by BIA, to certify that the chat will be used in 
accordance with authorized uses set forth in EPA fact sheets and other 
guidance. (See report titled, Chat Sales Treatability Study Workplan 
for the Sale of Indian-Owned Chat within the Tar Creek Superfund Site, 
Ottawa County, Oklahoma, June 23, 2005.).
    A number of commenters noted their concern that existing 
regulations do not adequately control releases from these types of 
facilities. As noted above, the Agency reviewed existing state and 
Federal regulations of these facilities, and determined that they are 
in fact subject to regulation of their releases and that the existing 
regulations assure safe and environmentally protective conditions at 
these facilities--that is, hot mix asphalt plants, PCC plants and chat 
washing facilities. Therefore, the Agency is not promulgating 
additional controls for these facilities.

4. Are There Existing Criteria for the Use of Chat?

    As noted in a 2005 University of Oklahoma (OU) report, the Oklahoma 
Department of Environmental Quality (ODEQ) has determined that the 
following transportation uses of raw chat are inappropriate: Use in 
residential driveways and as gravel or unencapsulated surface material 
in parking lots, alleyways, or roadways (See A Laboratory Study to 
Optimize the Use of Raw Chat in Hot Mix Asphalt for Pavement 
Application: Final Report). ODEQ also identified the following non-
transportation uses of raw chat that are deemed inappropriate for 
residential use:
--Fill material in yards, playgrounds, parks, and ball fields
--Playground sand or surface material in play areas
--Vegetable gardening in locations with contaminated chat
--Surface material for vehicular traffic (e.g., roadways, alleyways, 
driveways, or parking lots)
--Sanding of icy roads
--Sandblasting with sand from tailings ponds or other chat sources
--Bedding material under a slab in a building that has underfloor air 
conditioning or heating ducts
--Development of land for residential use (e.g., for houses or for 
children's play areas, such as parks or playgrounds) where visible chat 
is present or where the lead concentration in the soil is equal to or 
greater than 500 mg/kg unless the direct human contact health threat is 
eliminated by engineering controls (e.g., removing the contaminated 
soil or capping the contaminated soil with at least 18 inches of clean 
soil)

    EPA Region 6 also issued a Tar Creek Mining Waste Fact Sheet on 
June 28, 2002 that identified the following as acceptable uses of chat: 
(1) Applications that bind (encapsulate) the chat into a durable 
product (e.g., concrete and asphalt), (2) applications that use the 
chat as a material for manufacturing a safe product where all waste 
byproducts are properly disposed, and (3) applications that use the 
chat as sub-grade or base material for highways (concrete and asphalt) 
designed and constructed to sustain heavy vehicular traffic. This fact 
sheet also incorporated the ODEQ list of unacceptable residential uses 
of chat.
    In addition, EPA Region 7 issued a Mine Waste Fact Sheet in 2003 
that identified the uses of chat that are not likely to present a 
threat to human health or the environment. Those uses are: (1) 
Applications that bind material into a durable product; these would 
include its use as an aggregate in batch plants preparing asphalt and 
concrete, (2) applications below paving on asphalt or concrete roads 
and parking lots, (3) applications that cover the material with clean 
material, particularly in areas that are not likely to ever be used for 
residential or public area development, and (4) applications that use 
the material as a raw product for manufacturing a safe product. The 
fact sheet also lists mine waste (chat) uses that may not be safe and 
environmentally protective and are similar to those listed by ODEQ and 
the Region 6 fact sheet. However, the Region 7 fact sheet also lists 
use as an agricultural soil amendment to adjust soil alkalinity as a 
use that may not be safe and environmentally protective.
    This rule is more restrictive than the 2002/2003 Region 6 and 7 
fact sheets. Therefore, the Agency is issuing new fact sheets on the 
use of chat from the Tri State Mining District in transportation 
construction projects funded, in whole or in part, with Federal funds 
and in non-transportation non-residential uses of chat. The new fact 
sheets are consistent with this rule. The fact sheets are available at 
http://www.epa.gov/epaoswer/other/mining/chat/.

5. Physical and Chemical Characteristics of Chat

    This section provides information on the physical characteristics, 
such as hardness, soundness (durability), gradation, shape and surface 
texture, and chemical characteristics, such as the leaching potential 
of chat.
Physical Characteristics
    In an OU study (A Laboratory Study to Optimize the Use of Raw Chat 
in Hot Mix Asphalt for Pavement Application: Final Report (August 
2005)), the specific gravity of the raw chat was found to be 2.67, 
which is similar to some commonly used aggregates, such as limestone 
and sandstone.
    According to an ODEQ study (Summary of Washed and Unwashed Mining 
Tailings (Chat) from Two Piles at the Tar Creek Superfund Site, Ottawa 
County Oklahoma, Revised June 2003), chat consists of materials ranging 
in diameter from 15.875 mm (\5/8\ inch) to

[[Page 39336]]

less than 0.075 mm (the size fraction that passes the No. 200 sieve).
    Since raw chat is a crushed material from mining operations, raw 
chat particles have fractured faces. Raw chat also has numerous inter-
granular voids in the loose aggregate form. The more angular the 
aggregate the higher the amount of voids. The uncompacted void content 
or the fine aggregate angularity of raw chat was found to be 46%. This 
value exceeds the higher fine aggregate angularity required by most 
State DOTs.
    Raw chat is harder than some other aggregates, such as limestone. 
The L.A. abrasion value (determined by the Test for Resistance to 
Degradation of Aggregate by Abrasion and Impact in the Los Angeles 
Abrasion Machine) of raw chat was found to be 18% which is lower than 
that of limestone (23%) used in the OU study. This makes chat a good 
material in road surfaces since it does not wear down as fast as other 
aggregates.
    Cubical shape is another desirable property of a good aggregate. 
The coarse aggregate in raw chat (particles retained on a 4.75 mm 
(4) sieve) has less than 5% flat or elongated particles. 
Therefore, chat is viewed as a desirable aggregate material.
    State DOTs specify minimum aggregate durability indices depending 
on the type of road surface. In the OU study, the aggregate durability 
index of raw chat was found to be 78%. The insoluble residue of raw 
chat was found to be 98%. Oklahoma DOT has established a 40% insoluble 
requirement for combined aggregates used in a surface layer of hot mix 
asphalt, for the purpose of skid resistance. Surface treatments, like 
microsurfacing, have higher insoluble residue requirements. Thus, the 
use of insoluble aggregates like chat in hot mix asphalt surface mixes 
and other surface treatments can improve the skid resistance and safety 
of pavements.
    State DOTs also specify aggregate requirements for hot mix asphalt 
and PCC. Most State DOTs, including Kansas, Oklahoma and Missouri, have 
adopted aggregate standards developed by the American Association of 
State Highway and Transportation Officials (AASHTO). According to 
AASHTO, the 0.075 mm (200) sieve size is the dividing line 
between sand-size particles and the finer sized particles defined as 
silts and clays. These finer particles often adhere to larger sand and 
gravel particles and can adversely affect the quality of hot mix 
asphalt and Portland cement concrete. The AASHTO standards for Fine 
Aggregate for Bituminous Paving Mixtures (M 29-03) and Fine Aggregate 
for PCC (M 6-03) specify limits for the amount of aggregate, on a 
percent mass basis, in hot mix asphalt and Portland cement concrete 
according to aggregate size and gradation. The aggregate sizes included 
in the AASHTO standards range from .075 mm to 9.5 mm which is within 
the range of particles found in raw chat. The AASHTO standards do not 
preclude the use of fine chat particles in hot mix asphalt or PCC. 
Depending on the designated grading, however, AASHTO limits particles 
finer than sieve size 50 in the range of 7% to 60% for 
aggregate in asphalt. Fine aggregate for use in concrete is limited by 
the States of Oklahoma and Missouri to between 5% and 30% for particles 
less than sieve size 50, while the corresponding values in 
Kansas are 7% to 30%. Therefore, chat used in asphalt or PCC must meet 
sizing specifications. This can be accomplished either by the raw chat 
meeting these specifications as is, or mixing the raw chat with other 
aggregates, by dry sizing, or by washing (wet sizing) the chat.
    Current law requires that the chat used as an aggregate in 
transportation projects meet existing State Department of 
Transportation or Federal Highway Administration material 
specifications, which assure that the road surface, composed of hot, 
warm or cold mix asphalt, concrete or epoxy, is durable and will not 
degrade prematurely. As discussed below, in light of these existing 
requirements, EPA concluded that it was not necessary to establish any 
additional material specifications for the use of chat as an aggregate 
in federally funded transportation projects to ensure that when chat is 
used, it will be safe and environmentally protective.
Chemical Characteristics
    Dames and Moore, 1993 and 1995; Sampling and Metal Analysis of Chat 
Piles in the Tar Creek Superfund sites for the Oklahoma Department of 
Environmental Quality, 2002, and Datin and Cates; Summary of Washed and 
Unwashed Mining Tailings (Chat) from Two Piles at the Tar Creek 
Superfund Site, Ottawa County Oklahoma, Revised June 2003, provide data 
on metals concentrations in washed and unwashed (or raw) chat. The 
Dames and Moore study indicated that total lead concentrations in the 
raw chat ranged from 100 mg/kg to 1,660 mg/kg, while the Datin and 
Cates study noted that mean total lead concentrations from the raw chat 
piles located throughout the Tri-State area ranged between 476 to 971 
mg/kg. The AATA International, Inc. December 2005; Draft: Remedial 
Investigation Report for Tar Creek OU4 RI/FS Program found that the 
concentration of lead in the raw chat ranged from 210 mg/kg to 4,980 
mg/kg, with an average of 1,461 mg/kg; cadmium ranged from 43.1 mg/kg 
to 199.0 mg/kg, with an average of 94.0 mg/kg; and zinc ranged from 
10,200 mg/kg to 40,300 mg/kg, with an average of 23,790 mg/kg.
    These studies show that as chat sizes become smaller, their metals 
content increases. The cited Datin and Cates report, Summary of Washed 
and Unwashed Mining Tailings (Chat) from Two Piles at the Tar Creek 
Superfund Site, Ottawa County Oklahoma, Revised June 2003, shows that 
total metals testing of wet screened material (larger fractions) 
resulting from chat washing have lead concentrations which range from 
116 to 642 mg/kg, a range much lower than raw chat. Therefore, the data 
show that chat washing generates chat aggregate (greater than sieve 
size 40) with considerably lower metals concentrations than 
raw chat.\3\
---------------------------------------------------------------------------

    \3\ The Datin and Cates report also provides TCLP testing data 
that indicates the dry sieve sizes greater than 40 would 
not exceed 5 mg/l, as well as data on wet screened material (larger 
fractions) that also shows that the leaching potential of this 
material is below 5 mg/l (1.028 to 3.938 mg/l). 5 mg/l is the level 
of lead that defines whether a waste is hazardous under RCRA 
subtitle C. Thus, this is another indication that the larger sizes 
of chat have lower lead concentrations than do smaller sized chat 
particles. (Note: As indicated earlier, chat is considered a Bevill 
mining waste and is thus, exempt from regulation under RCRA Subtitle 
C. However, we are using the TCLP leachate value for lead simply as 
a comparative measure to evaluate the leaching characteristics of 
chat.)
---------------------------------------------------------------------------

6. What Are the Environmental and Health Effects Associated With 
Pollutants Released From Raw Chat?

    The Tri-State Mining District includes four National Priorities 
List (NPL) Superfund sites that became contaminated from the mining, 
milling, smelting, and transportation of ore and the management 
practices for chat. These sites are located in Tar Creek in Ottawa 
County, Oklahoma, Cherokee County in southeast Kansas, and in Jasper 
and Newton Counties in southwest Missouri. Superfund cleanup activities 
related to the millions of tons of mining waste that were deposited on 
the surface of the ground at these sites have been designated as 
Operable Units (OUs). OUs are groupings of individual waste units at 
NPL sites based primarily on geographic areas and common waste sources.
    Certain uses of raw chat have caused threats to human health and 
the environment as a result of the concentrations of lead, cadmium and 
zinc present in the chat.\4\ Evaluation of

[[Page 39337]]

raw chat also indicates that this waste in most unencapsulated uses has 
the potential to leach lead into the environment at levels which may 
cause threats to humans (i.e. elevated blood lead concentrations in 
area children). Such threats have been fully documented in Records of 
Decision (RODs) for the OUs at these NPL sites (See Tri-State Mining 
District RODs in the docket to this action). Copies of Site Profiles 
and RODs can be searched at: http://www.epa.gov/superfund/sites/rods/index.htm.
---------------------------------------------------------------------------

    \4\ Information regarding the specific threats to human health 
from lead, cadmium and zinc can be found in the Agency for Toxic 
Substances and Disease Registry (ATSDR) Fact Sheet for Lead, 
September 2005, the ASTDR Fact Sheet for Cadmium, June 1999 and the 
ATSDR Fact Sheet for Zinc, September 1995, all of which are 
available in the Docket to today's final rule.
---------------------------------------------------------------------------

IV. Rationale for This Rule and Response to Comments

A. What Was the Process EPA Used to Develop This Action?

    In developing the proposed rule, the Agency initially reviewed 
information concerning the environmental effects of the improper 
placement and disposal of chat found in the RODs cited above for the 
four NPL sites located in the Tri-State Mining District (Tar Creek, 
Jasper County, Cherokee County, Newton County). The Agency then 
reviewed reports which identified current or past uses of chat, 
primarily studies prepared to support Oklahoma Governor Keating's 
Taskforce (Governor Frank Keating's Tar Creek Superfund Task Force, 
Chat Usage Subcommittee Final Report, September 2000) and research on 
chat uses conducted by OU (A Laboratory Study to Optimize the Use of 
Raw Chat in Hot Mix Asphalt for Pavement Application: Final Report 
August 2005), as well as interviewed the principal authors of the OU 
studies to further evaluate their findings. Additionally, the Agency 
interviewed representatives from the Departments of Transportation in 
Oklahoma, Kansas, and Missouri and met with the U.S. Department of 
Transportation, Federal Highway Administration to discuss the use of 
aggregate substitutes in road surfaces and relied on the joint EPA/FHWA 
document of the use of wastes in highway construction [User Guidelines 
for Waste and Byproduct Material in Pavement Construction, FHWA, 1997 
(http://www.rmrc.unh.edu/Partners/UserGuide/begin.htm)]. Furthermore, 
EPA met with the BIA to discuss BIA requirements for the sale of chat 
on Tribal lands. The Agency also conducted a series of interviews with 
the environmental regulatory agencies in the three involved States to 
further identify acceptable versus unacceptable uses of chat. Moreover, 
the Agency conducted interviews with companies which either used chat 
at that time or had used chat previously. As part of this effort, EPA 
representatives visited the Tri-State area to observe the condition of 
chat piles and confirm the location of chat washing and asphalt 
companies in the area. Finally, the Agency has communicated with the 
tribal members in the Tri-State area to inform them about this action 
and seek information about current uses.
    Based on our review of the reports and interviews noted above, the 
Agency published a Proposed Rule on April 4, 2006, in which we 
specifically solicited comment on a number of issues (see 64 FR 16729). 
The Agency received approximately 20 comments on the proposal. The 
Agency's response to the comments received can be found in the docket 
for this rule (see Response to Comments Document). In addition, the 
Agency conducted an external Peer Review of the risk screen conducted 
for the proposal. The Peer Review Panel submitted comments to the 
Agency and based on those comments, the Agency conducted an additional 
risk screen of chat dusts from milling of road surfaces containing chat 
to determine if such an activity presented a risk to human health and 
the environment. Both the original risk screen and subsequent risk 
evaluations are noted in the risk section of the preamble to this final 
rule, and are also in the Docket to this final rule. The Agency also 
met with representatives from the Department of Transportation to seek 
their input on a number of issues raised by commenters. Finally, the 
Agency consulted with the Tribal interests to assure that their 
comments were fully understood by the Agency. Based on the additional 
work noted above, as well as responding to comments, the Agency is 
today finalizing the chat rule.

B. What Criteria Are EPA Establishing for the Use of Chat?

1. Transportation Construction Uses
    Transportation construction uses of chat addressed in this final 
rule are those construction activities that occur as part of 
transportation construction projects that are funded, wholly or in 
part, with Federal funds. The Agency has evaluated all the 
transportation construction uses and has concluded that chat used in 
hot, warm, or cold mix asphalt, slurry seals, microsurfacing and in 
epoxy seals, or other uses of chat that are evaluated on a case-by-case 
basis will be safe and environmentally protective.
a. What Is the Final Action?
    This final rule establishes criteria that chat used in 
transportation construction projects that are funded, wholly or in 
part, with Federal funds, must meet as a condition of receiving Federal 
transportation funding. Specifically, those criteria define the 
following uses to meet the statutory standards: chat that is used in 
asphalt concrete, slurry seals, microsurfacing, or epoxy seals. The use 
of chat also meets EPA's criteria if it is used in PCC, stabilized road 
base, granular road base, flowable fill, and in chip seals, provided 
that on a case-by-case basis: (1) Synthetic Precipitation Leaching 
Procedure (SPLP, EPA SW-846 Method 1312) tests are conducted on the 
proposed material and the leachate testing results show that 
concentrations in the leachate do not exceed the National Primary 
Drinking Water Standards for lead and cadmium and the fresh water 
chronic National Recommended Water Quality Criterion for zinc of 120 
ug/l; or (2) EPA (or a State environmental Agency, if it chooses to do 
so) has determined, based on a site-specific risk assessment and after 
notice and opportunity for public comment, that the releases from the 
chat mixture in its proposed use will not cause an exceedance of the 
National Primary Drinking Water Standards for lead and cadmium in 
potential drinking water sources and the fresh water chronic National 
Recommended Water Quality Criterion for zinc of 120 ug/l in surface 
water.
    EPA has also established a criterion that other chat uses will be 
safe and environmentally protective if they are part of, and otherwise 
authorized by a State or Federal response action undertaken in 
accordance with Federal or State environmental laws. Such response 
actions are undertaken with consideration of site specific risk 
assessments.
    In addition, for all chat used in transportation construction 
projects that are funded, in whole or in part, using Federal funds that 
is not subject to the BIA Chat Use Certification requirements described 
in Section IV.B1, the Agency is establishing a certification 
requirement similar to that required by BIA. Specifically, any acquirer 
of the chat must submit a signed, written certification that the chat 
will be used in accordance with EPA's criteria. The certification will 
also include the location of origin of the chat and the amount of chat 
acquired.
    The certification must be provided to the environmental regulatory 
agency in the State where the chat is used, except for chat acquired on 
lands administered

[[Page 39338]]

by the BIA which is subject to the BIA certification requirements. The 
Agency is also requiring that if the acquirer sells or otherwise 
transfers the chat, the new owner of the chat must also submit a 
signed, written certification as described in this section. Most 
commenters did not support the certification requirement, because they 
believe that it would increase the cost of using chat. As noted 
earlier, BIA has established a chat sales program affecting chat sales 
from tribal lands. That program includes a certification requirement 
similar to that found in this rule. The Agency believes that 
certification is necessary to assure that chat users comply with 
today's criteria, as well as serving as a means to inform State 
environmental agencies about the use of chat in their state. The Agency 
has reviewed the burden on industry to fill out and maintain the 
certification records and does not find that such a requirement is 
burdensome. Moreover, the Agency believes that the certification 
requirement will provide important information to state environmental 
agencies to ensure that the chat is used as required under this rule.
    This rule also requires that chat users maintain records. The 
Agency is requiring that the acquirer, or any other person that 
receives a copy of the certification, maintain a copy of the 
certification in its files for three years following transmittal to the 
State environmental regulatory agency. If the use is based on a case-
by-case basis, the acquirer must maintain copies of any SPLP leachate 
testing results or any site-specific risk assessment for three years.
b. What is the rationale for the Rule?
    The Agency is basing this action on our review of various studies 
and data that show that certain uses of chat are safe and 
environmentally protective.
i. Hot Mix Asphalt
    There are a number of factors which lead us to conclude that chat 
used in hot mix asphalt is safe and environmentally protective:
    Several studies have been conducted on the use of chat in hot mix 
asphalt. The most comprehensive study was conducted by the OU School of 
Civil Engineering and Environmental Science. OU published their 
findings in a report titled, A Laboratory Study to Optimize the Use of 
Raw Chat in Hot Mix Asphalt for Pavement Application: Final Report 
(August 2005). OU tested the durability and leaching potential of a 
variety of mixtures of hot mix asphalt with raw chat for road surfaces 
and for road bases. In addition, OU milled (sawed) samples to simulate 
weathering. The Agency relied on these findings as one of the principal 
sources of data supporting the use of chat in hot mix asphalt road 
surfaces and asphalt road bases. The OU study also confirms the 
findings of an earlier study conducted by the U.S. Army Corp of 
Engineers (Tar Creek Superfund Site, Ottawa County, Oklahoma, Final 
Summary Report: Chat--Asphalt Paved Road Study USACE--Tulsa District, 
February 2000). Specifically:
     Comparison of the Synthetic Precipitation Leaching 
Procedure (SPLP) results of milled (weathered) chat asphalt samples in 
the OU study with the National Primary and Secondary Drinking Water 
Standards (www.epa.gov/safewater/mcl.html), without dilution and 
attenuation, show that milled surface and road base mixtures did not 
exceed the primary drinking water standard for lead \5\ (0.015 mg/l) or 
cadmium (0.005 mg/l). The OU results also show that milled asphalt road 
bases and surfaces did not exceed the secondary drinking water standard 
for zinc (5 mg/l).\6\
---------------------------------------------------------------------------

    \5\ The National Primary Drinking Water Regulations set a 
Maximum Contaminant Level Goal of zero and a Treatment Technique 
action level of 0.015mg/l for lead.
    \6\ Several hot mix asphalt samples were also tested in the OU 
study using the Toxicity Characteristic Leaching Procedure (TCLP). 
For surface samples, TCLP average concentrations for lead ranged 
from <0.005 mg/l to a high of 0.46 mg/l. TCLP average concentrations 
for cadmium ranged from <0.010 mg/l to 0.223 mg/l and zinc 
concentration averages ranged from 11.3 mg/l to 28.53 mg/l. Road 
base samples usually have higher metals concentrations than do 
surface samples. For road base samples, average TCLP lead 
concentrations ranged from 0.069 mg/l to 2.008 mg/l, while average 
TCLP cadmium concentrations ranged from 0.011 mg/l to 0.087 mg/l and 
average TCLP zinc concentrations ranged from 19.9 mg/l to 41.33 mg/
l.
---------------------------------------------------------------------------

     The TCLP test was designed as a screening test to simulate 
leaching of materials in a municipal solid waste landfill. The SPLP 
test is also a screening test to simulate leaching of materials when 
exposed to acid rain. It is highly unlikely that road surfaces would be 
exposed to leaching conditions found in municipal solid waste 
landfills. Therefore, the Agency believes that of these two tests, the 
SPLP tests are likely to better mimic the leaching potential of such 
mixtures when they are to be used in road construction.
     The OU study tested unweathered and milled samples. The 
Agency believes milled samples represent worst case scenarios because 
milling exposes more surface area to leaching.
     In a dissertation submitted to the University of New 
Hampshire titled, Contributions to Predicting Contaminant Leaching from 
Secondary Material Used in Roads, Defne S. Apul, September 2004, the 
author noted that if pavement is built on highly adsorbing soils, the 
concentrations of leached contaminants reaching groundwater are more 
than several orders of magnitude lower than the MCLs.
    The ODEQ report entitled, Summary of Washed and Unwashed Mining 
Tailings (Chat) from Two Piles at the Tar Creek Superfund Site, Ottawa 
County Oklahoma, Revised June 2003, also evaluated leachate from 
asphalt containing chat removed from the Will Rogers Turnpike located 
near Quapaw, Oklahoma. This evaluation was conducted to determine if 
asphalt concrete containing chat that is removed at the end of its 
useful life poses contamination threats from metals leaching into the 
environment. TCLP results for lead ranged from less than 0.050 mg/l to 
0.221 mg/l. There are no SPLP test data in this report. However, based 
on best professional judgment and review of TCLP versus SPLP results, 
EPA believes that if SPLP tests were conducted, there would be a 
reduction in lead concentrations of approximately one order of 
magnitude as compared to the results of TCLP tests. Therefore, we 
believe that SPLP results would not exceed the MCL for lead. Based on 
these results, EPA does not believe the disposal of chat asphalt should 
present risks to the environment. The Agency sought comment on whether 
data was available which would further clarify whether the leachate 
potential from end of life use of chat in asphalt presented any 
threats. The Agency did not receive any comments or information that 
disproves the Agency's contention that it is unlikely that end of life 
chat asphalt will adversely affect the environment.
    Finally, the Peer Review Panel that reviewed and commented on the 
risk screen for the proposed rule concluded that the use of chat in hot 
mix asphalt road surfaces and in asphalt road bases are safe and 
environmentally protective. The Agency, therefore, concludes that the 
use of chat in hot mix asphalt for pavement (which accounts for about 
95% of the current chat usage), asphalt base, and asphalt sub base are 
safe and environmentally protective. EPA does not believe that it is 
necessary to establish specifications of what constitutes ``hot mix 
asphalt'' because transportation construction uses are required to 
comply with Federal and State Department of Transportation material 
specifications. These specifications delineate requirements which 
ensure that when chat is used in hot mix asphalt, the resulting product 
will be structurally stable. It is

[[Page 39339]]

recommended that chat users first determine if the proposed use meets 
State or Federal DOT materials specifications, since adherence to them 
is separately required under current law.
ii. Slurry Seal, Microsurfacing, Warm Mix Asphalt, Cold Mix Asphalt, 
and Epoxy Seal
    While the proposal limited the use of chat as a direct ingredient 
in hot mix asphalt (including use as road pavement, asphalt base and 
asphalt sub base), many commenters requested that the Agency expand the 
scope of the criterion to include other road surface uses associated 
with asphalt that they believed retard the leaching of metals in chat 
in the same manner as does hot mix asphalt, including slurry seals, 
microsurfacing, cold mix asphalt, epoxy seals and chip seals. 
Commenters did not provide data to support their assertions. The Agency 
reviewed published information regarding the binding and durability 
characteristics of these uses and found that, except for chip seals, 
they would retard the leaching of metals in the same manner as hot mix 
asphalt. To further confirm this information, we met with Department of 
Transportation officials to determine which of these applications, if 
any, do in fact encapsulate chat similarly to hot mix asphalt. Based on 
those discussions and our review of published information, the Agency's 
criteria includes the use of chat in slurry seals, microsurfacing, warm 
mix asphalt, cold mix asphalt, and epoxy seals as safe and 
environmentally protective in transportation construction projects that 
are carried out in whole, or in part, using Federal funds, but does not 
include the use of chat in chip seals. Specifically:
     Slurry seals and microsurfacing involve the application of 
a mixture of asphalt, chemical binders, petroleum liquids and aggregate 
on the top surface of roads. This ``resurfacing'' meets a number of 
needs, including repairing fine fractures in the road surface, 
extending the life of the road, and improving skid resistance. EPA 
reviewed literature on these uses and found that these uses have the 
same engineering characteristics as hot mix asphalt. EPA also met with 
the FHWA, U.S. DOT to determine if microsurfacing and slurry seals 
retard the leaching of metals in the same manner as hot mix asphalt. 
FHWA indicated that slurry seals and microsurfacing would bind metals 
in the same manner as hot mix asphalt and would result in similar 
leaching results. Based on this conclusion and our review of the 
literature, the Agency today views the use of chat in slurry seals and 
microsurfacing as safe and environmentally protective.
     As part of EPA's discussions with FHWA, we also discussed 
the ability of warm mix asphalt and cold mix asphalt to encapsulate and 
bind chat. Warm mix asphalt is a combination of asphalt, asphalt 
emulsions, paraffin or esterfied wax, and mineral additives that allow 
the materials to be worked at temperatures much lower than hot mix 
asphalt. Cold mix asphalt is a combination of asphalt, petroleum 
liquids, soaps, and other chemicals which allow the materials to be 
worked with when cold. FHWA confirmed that warm and cold mix asphalt 
would encapsulate chat in the same manner as hot mix asphalt, and thus, 
would likely result in similar leaching results. Based on Agency 
conversations with FHWA and our review of the literature, the Agency 
also views the use of chat in warm and cold mix asphalt as safe and 
environmentally protective.
     EPA also discussed the use of epoxy binders on bridge 
decks with FHWA. Commenters and one of the chat washing companies noted 
that some chat is sold to companies which mix chat with epoxy binders 
for use as an anti-skid coating for highway bridges. EPA evaluated the 
engineering durability of these epoxies and found that they are equal 
to or are more durable than asphalt. FHWA also confirmed that the use 
of epoxies would encapsulate chat equally to the binding found with 
asphalt, and thus, would result in similar leach results. Based on this 
conclusion, the Agency today views the use of chat in epoxy binders for 
anti-skid purposes as safe and environmentally protective.
    In conclusion, the use of chat in hot mix asphalt, slurry seals, 
microsurfacing, warm mix asphalt, cold mix asphalt, or epoxy seals in 
transportation construction projects funded, in whole or in part, with 
Federal funds is safe and environmentally protective. Such uses do not 
require approval from EPA prior to their use, as long as certification 
and recordkeeping requirements are met.
iii. Concrete, Flowable Fill, Granular Road Base, Stabilized Road Base 
and Chip Seals and Conditions for Use
    This rule regarding the use of chat in concrete pavement has 
changed from that presented in the April 2006 proposal and this rule 
sets additional requirements on chat used in PCC. In particular, the 
proposed rule allowed chat used as an aggregate in PCC without any 
testing or other requirements. The Agency proposed the use of chat in 
PCC based on the following data and information:
     An undated OU Surbec-Art Environmental study \7\ and a 
2000 OU study \8\ conducted the only known assessments of total metals 
content and TCLP testing of concrete matrices mixed with raw chat. The 
2000 OU results are also presented in the 2005 OU study. The results 
from those two studies are presented in the following Table:
---------------------------------------------------------------------------

    \7\ Preliminary Report on the Findings of Environmental and 
Engineering Tests Performed on Mine Residual Materials from Ottawa 
County, Oklahoma.
    \8\ Development of Holistic Remediation Alternatives for the 
Catholic 40 and Beaver Creek.

----------------------------------------------------------------------------------------------------------------
                                                         S1                    S2                    C40
                                               -----------------------------------------------------------------
                                                Total (mg/ TCLP (mg/  Total (mg/ TCLP (mg/  Total (mg/ TCLP (mg/
                                                   kg)         l)        kg)         l)        kg)         l)
----------------------------------------------------------------------------------------------------------------
Lead..........................................        178       0.92        379       0.17        150          1
Cadmium.......................................     \R\ 30       0.09     \R\ 35       0.12         35        0.1
Zinc..........................................       4200       0.23       4400       0.16       4100  .........
----------------------------------------------------------------------------------------------------------------
\R\ rounded to nearest whole number.

     While not a direct measure of the leaching potential of 
chat contained in PCC, waste stabilization technologies and their 
effectiveness are well defined in the Agency's Final Best Demonstrated 
Available Technology (BDAT) Background Document for Universal 
Standards, Volume A, July 1994 and Proposed Best Demonstrated Available 
Technology (BDAT) Background Document for Toxicity Characteristic Metal 
Wastes D004-D011,

[[Page 39340]]

July 1995. One of those technologies is stabilization or encapsulation 
of the waste in a cement matrix, to reduce the mobility of the metals 
in the waste. That is, the metals are chemically bound into a solid 
matrix that resists leaching when water or a mild acid comes into 
contact with the waste. The Agency evaluated contaminant levels in 
unstabilized versus stabilized wastes to determine the reduction in 
mobility of metals, including lead and cadmium, when those wastes were 
stabilized in a cement matrix. These results indicate that 
stabilization with cement generally reduced lead and cadmium mobility 
by two to three orders of magnitude (see Table A4 of the July 1994 
document cited above).
    However, the Peer Reviewers and commenters who reviewed and 
commented on the risk screen analyses to the proposed rule raised 
concerns with the lack of data presented on the stabilization of chat 
in concrete. Specifically, the Peer Reviewers indicated that there were 
only three samples analyzed and that given the limited data, it was not 
possible for them to determine if risks existed from the use of chat in 
concrete. While the Peer Reviewers noted that it was likely that the 
concrete bound the metals in a similar fashion as asphalt, they also 
did not believe there was enough data or information to reach a 
definitive conclusion.
    Some commenters also argued with the lack of leaching data for chat 
in PCC and questioned whether the Agency has sufficient information to 
finalize the proposal. Other commenters also noted that there were 
significant differences between stabilizing high metal bearing wastes 
with cement and the mixing of chat into PCC pavement. Commenters 
indicated that from a risk standpoint, concrete road surfaces after 
aging contain fine surface fractures that would allow rain water to 
percolate through the surface into groundwater. The Agency acknowledges 
these differences.
    Commenters also noted that it was unlikely that chat would be used 
in concrete pavement since it can be a poor performing aggregate when 
used in PCC due to potential alkali-silica reaction (ASR) and freeze/
thaw durability issues. This is the reason that chat is not an approved 
PCC aggregate by Oklahoma DOT. At proposal, the Agency also evaluated 
highway design specifications; i.e., layering of compacted material and 
the movement of water through concrete (hydraulic conductivity,\9\) and 
initially thought that such designs in general retard the movement of 
rainwater through concrete and into groundwater. Commenters questioned 
this conclusion. As a result, the Agency met with the FHWA to determine 
how extensively water flowed across and through concrete pavements. 
FHWA indicated that there is considerable water flow through concrete 
pavement either through flow out of the joints or cracks, or through 
flow from the shoulders downward into the base. Based on Agency 
discussions with FHWA, the Agency no longer believes that such designs 
in general retard the movement of rainwater through concrete.
---------------------------------------------------------------------------

    \9\ Acording to the Portland Cement Association, the hydraulic 
conductivity of a typical Portland cement concrete is 1 x 
10-1cm/sec.
---------------------------------------------------------------------------

    Commenters also requested that the rule allow the use of chat in 
flowable fill. However, commenters did not provide information to 
support this request. While flowable fill involves the use of a 
pozzolanic material (cement), the ability of flowable fill to bind chat 
is unclear because flowable fill uses cement in amounts as little as 3 
to 5 percent by weight. Therefore, the Agency does not have sufficient 
information to allow this use without additional information or setting 
additional conditions.
    In addition, commenters requested that the rule allow the use of 
chat as granular road base. Such bases are typically constructed by 
spreading aggregates in thin layers and compacting each layer to reduce 
the stress applied to the sub grade layer and providing drainage for 
the pavement structure. The Agency acknowledges that some chat can meet 
state or Federal materials specifications for this use. These 
commenters did not, however, provide any information to support this 
request. As noted above, some washed chat has significantly lower lead 
concentrations than raw chat. However, as FHWA notes, highway designs 
retard some, but not all of the water flowing across and into ground 
water. Such water movement could leach metals from the chat road base 
into ground water. Because the Agency did not receive additional 
information on the leaching characteristics of this use, the Agency is 
unable to allow it without additional information or setting additional 
conditions.
    Still other commenters requested that the rule allow the use of 
chat in stabilized base. Stabilized base uses chat mixed with cement or 
other pozzolanic materials to increase their bearing weights. This 
additional material should reduce the mobility of the metals. However, 
the stabilized road base may use cement or other materials in amounts 
corresponding to 4 to 6 percent by weight which is less than that used 
in PCC. The commenters did not provide information to support this 
request. While some binding of metals is likely to occur, the Agency 
does not have sufficient information to allow this use without 
additional information or setting additional conditions.
    Finally, at proposal, the Agency did not include an evaluation of 
the use of chat in chip seals. Commenters requested that the rule allow 
the use of chat in chips seals. These commenters did not, however, 
provide information to support this request. Chip seals involve 
application of an asphalt liquid on top of an existing road surface. 
After the application of the asphalt liquid, an aggregate (such as 
chat) is placed on the asphalt liquid and may then be rolled into the 
liquid. It is possible that several applications can be applied. In 
some circumstances, the aggregate layer is coated with asphalt liquids. 
EPA met with the FHWA to determine if chip seals were generally viewed 
as being able to retard the leaching of metals in the same manner as 
hot mix asphalt. FHWA indicated that under most circumstances, asphalt 
used in chip seals did not always fully coat chat particles, and chat 
could be released into the environment. Given the concerns raised by 
FHWA and the lack of data on this use, the Agency concludes that it 
does not have sufficient information to allow the use of chat in chip 
seals without additional information or setting additional conditions.
    A number of commenters also noted that some washed chat does not 
test hazardous under the TCLP and that restricting all uses of raw 
chat, or encapsulated uses where leach data are not available, was 
overly restrictive.\10\ The Agency has reviewed the TCLP/SPLP test data 
of raw chat and recognizes that some washed chat has significantly 
lower lead and zinc concentrations than raw chat. Nevertheless, the 
Agency remains concerned that the use of raw chat or chat mixed with 
other materials could pose risks to human health and the environment, 
based on the physical and chemical characteristics of the material, as 
well as the history of its use.
---------------------------------------------------------------------------

    \10\ While the Agency is not requiring that chat be washed or 
dry sized prior to being used, the rules also do not prevent a 
person from washing or dry sizing chat before it is used either 
directly or in combination with another material.

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

[[Page 39341]]

    After careful evaluation of the comments received and the report 
from the Peer Reviewers, the Agency believes that the limited amount of 
leaching data on chat used in PCC, flowable fill, granular road base, 
stabilized road base, and chip seals do not provide enough support to 
determine that these uses of chat will be safe and environmentally 
protective.
    In the proposal, the Agency requested comment on whether there was 
a need for leachate testing of chat used in hot mix asphalt or in PCC 
(see 54 FR 16738). Most commenters noted that the use of chat in hot 
mix asphalt was protective and that a requirement of additional SPLP 
testing was not warranted, however, they did not provide information to 
support this position. Nevertheless, as already discussed, the Agency 
believes there are sufficient data, particularly that provided in the 
2005 OU study, to support its finding that chat used in hot mix 
asphalt, as well as warm mix asphalt, cold mix asphalt, slurry seals, 
microsurfacing, and in epoxy seals will be safe and environmentally 
protective without the need for further leachate testing.
    Other commenters, while they did not call for specific leachate 
testing of chat used in PCC, did raise concerns as to whether there 
were sufficient data to reach the conclusion that chat used in PCC or 
other uses was protective. The Agency agrees that insufficient data 
exist to conclude that the use of chat in PCC would be safe and 
protective. Therefore, the Agency has concluded that additional 
information, either through the use of SPLP testing or through a site-
specific risk assessment, is necessary to be able to conclude that the 
use of chat in PCC, as well as flowable fill, granular road base, 
stabilized road base, and chip seals would meet the statutory 
standards. Specifically, EPA has established a criterion defining the 
use of chat in PCC, flowable fill, granular road base, stabilized road 
base, and chip seals as safe and environmentally protective if, on a 
case-by case basis, either: (1) Synthetic Precipitation Leaching 
Procedure (SPLP, EPA SW-846 Method 1312) tests are conducted on the 
proposed material and the leachate testing results show that 
concentrations in the leachate do not exceed the National Primary 
Drinking Water Standards for lead and cadmium and the fresh water 
chronic National Recommended Water Quality Criterion for zinc of 120 
[mu]g/l\11\; or (2) EPA (or a State environmental Agency, if it chooses 
to do so) has determined, based on a site-specific risk assessment and 
after notice and opportunity for public comment, that the releases from 
the chat mixture in its proposed use will not cause an exceedance of 
the National Primary Drinking Water Standards for lead and cadmium in 
potential drinking water sources and the fresh water chronic National 
Recommended Water Quality Criterion for zinc of 120 [mu]g/l in surface 
water.
---------------------------------------------------------------------------

    \11\ It should be noted that this case-by-case showing does not 
require public notice and comment.
---------------------------------------------------------------------------

    If a chat user chooses to conduct SPLP leachate testing and the 
results indicate that they do not exceed the standards noted above, the 
user does not need to submit the data to EPA (or a state, if it chooses 
to do so) for review and approval. However, the regulation requires 
that the user submit a certification statement to the environmental 
regulatory agency in the State where the chat is acquired and maintain 
copies of the SPLP testing results for a period of three years.
    If a chat user chooses to prepare a site specific risk assessment, 
the assessment must be submitted to EPA, or the State environmental 
agency, at the State's option, prior to use. EPA or the State 
environmental agency will review the site-specific risk assessment and 
determine, after notice and comment, if the use is safe and 
environmentally protective (see Section iii c below). After EPA or the 
State makes its determination, the user will still be required to meet 
the certification and recordkeeping requirements described in Section 
IV. B. 1. of this final rule.
iv. Sizing of Chat Prior to Use
    Finally, this final rule is not requiring that chat be sized before 
it is used because chat used in transportation construction projects 
must meet material specification standards established by either the 
State or Federal DOT. Those specifications set their own size standards 
which can be met in a variety of ways, such as by sizing chat or by 
blending chat with other sized aggregate. Since existing specifications 
address the sizing issue, this rule need not do so. However, some 
commenters recommended that the Agency allow any use of sized chat 
since it has lower lead concentrations than raw chat. Studies of the 
lead concentrations found in raw chat piles indicate that those 
concentrations vary from pile to pile. Data indicates that particles 
finer than sieve size 40 in raw chat tend to have a TCLP for 
lead of greater than 5 mg/l, while larger particles in the raw chat 
tend to have a TCLP for lead of less than 5 mg/l. While the Agency 
acknowledges these results, commenters did not provide information 
showing a lack of risks from other uses of washed chat not covered by 
this rule. As a result, the Agency is unable to allow these other uses 
unless the user can show the use is protective through a case-by-case 
demonstration as discussed previously.
v. Use of the SPLP Versus the TCLP
    EPA developed the TCLP as a tool to predict the leaching potential 
of constituents from waste in a municipal solid waste landfill. The 
TCLP method is used to determine if a waste is hazardous under 40 CFR 
261.24 (see the Toxicity Characteristic rule, 55 FR 46369; November 2, 
1990). The TCLP is also used in listing hazardous wastes to estimate 
leachate concentrations for use in groundwater modeling (for example, 
see the petroleum listing, 63 FR 42110, August 6, 1998). The TCLP 
leaching solution contains acetic acid that is adjusted to a pH of 4.93 
or 2.88, depending on the acidity of the waste sample.
    On the other hand, EPA developed the SPLP as a method to predict 
the leaching from wastes or soils under exposure to the slightly 
acidic, dilute solution generated by normal rainfall. The SPLP test 
uses a leach solution which mimics acid rain, while the TCLP uses a 
leach solution which mimics acids formed in municipal landfills. In 
past actions, EPA has recognized that the TCLP's use of organic acids 
may not be appropriate for disposal scenarios that do not involve 
municipal landfills. For example, in the proposed rule for management 
and disposal of lead-based paint debris, EPA used the SPLP to assess 
leaching from landfills that do not accept municipal wastes (see 63 FR 
70189; December 18, 1998). Similarly, EPA utilized the SPLP in 
screening low hazard wastes as part of its 1989 Bevill determination 
(see 54 FR 36592; September 1, 1989). The use of chat in transportation 
construction projects would preclude chat from being exposed to the 
conditions found in municipal landfills. Chat used in transportation 
construction projects will, however, be exposed to rainfall that then 
enters the groundwater.
    In determining which leach test to require, the Agency believes 
that the SPLP is the more appropriate test. As stated previously, the 
TCLP was designed as a screening test to simulate the leaching 
potential of wastes in municipal solid waste landfills. Since it

[[Page 39342]]

is highly unlikely that road surfaces would be exposed to leaching 
conditions found in municipal landfills, and because the SPLP test is a 
more likely scenario that would simulate the leaching potential of 
metals in chat used in transportation construction projects, we are 
requiring that if chat is to be used in PCC, granular road base, 
flowable fill, stabilized road base or chip seals, the user make a 
case-by-case demonstration using the SPLP test.
vi. Rationale for Setting National Primary Drinking Water Standards 
Versus National Recommended Water Quality Criteria, and Dilution and 
Attenuation Factors (DAFs)
    Because the Agency is requiring leachate testing if chat is to be 
used in PCC, granular road base, flowable fill, stabilized road base or 
chip seals, the Agency also must establish specific numeric criteria. 
In the proposal, the Agency requested comment on this issue. 
Specifically, the Agency stated, ``For example, the Agency could 
specify that the results of testing would need to meet the Primary and 
Secondary Drinking Water Standards for lead, cadmium, and zinc. The 
Agency also solicits comment on whether the leachate should be measured 
against the National Recommended Water Quality Criteria which address 
acute and chronic biological effects.'' The Agency also requested 
comment on whether a Dilution and Attenuation Factor should be applied 
to reflect how contaminant concentrations may change as they move 
through the environment (see 64 FR 16738-39). The Agency received only 
one comment on this issue. The commenter suggested that SPLP results 
should be measured against state water quality standards for lead, 
cadmium and zinc, and the Agency should use the chronic criteria for 
protection of aquatic life.
    The Agency disagrees with the commenter that we should use the 
State water quality criteria instead of the National Primary Drinking 
Water standards for lead and cadmium. State water quality criteria are 
established for the protection of aquatic life and human health in 
surface water for approximately 150 pollutants. National Primary 
Drinking Water standards protect public health by ensuring safe 
drinking water and protecting ground water. EPA has selected the 
National Primary Drinking Water standard for lead and cadmium since 
those standards are most protective of human health. The Agency has 
selected these standards for a variety of reasons. First, review of the 
Tar Creek Superfund site RODs indicated that one of the metals of 
concern is lead. The 2005 OU studies on the use of chat in asphalt also 
indicated that lead, cadmium and zinc are the principle heavy metals of 
concern in chat. Those conclusions are based on review of a series of 
studies which evaluated the metals concentrations in raw chat piles. 
They are also the criteria that EPA used in determining that chat used 
in hot mix asphalt is safe and environmentally protective.
    RODs also show that runoff from chat piles may be adversely 
affecting biological resources in streams throughout the Tar Creek 
Superfund site. Agency review of the environmental impacts of zinc (see 
ATSDR report on zinc) confirms that it can adversely affect aquatic 
species. Since the Agency agrees with the commenter that aquatic life 
should be protected, the Agency has decided to use the freshwater 
chronic National Recommended Water Quality Criteria for zinc of 120 
[mu]g/l. It should be pointed out that there is no National Primary 
Drinking Water standard for zinc and that the National Secondary 
Drinking Water standard for zinc is a non-enforceable guideline 
regulating contaminants that may cause cosmetic effects or aesthetic 
effects in drinking water. The Agency believes it is more appropriate 
to use the National Recommended National Water Quality Criteria for 
zinc since it addresses aquatic toxicity, as opposed to the National 
Secondary Drinking Water standard which addresses cosmetic and 
aesthetic effects.
    As noted above, other commenters stated that they did not believe 
leachate testing is necessary when chat is mixed with asphalt or 
concrete. They asserted that such uses were safe and environmentally 
protective. With respect to most uses of chat in asphalt; i.e., hot mix 
asphalt, warm mix asphalt, cold mix asphalt, slurry seals, and 
microsurfacing, the Agency agrees with the commenters. However, as 
stated previously, there is insufficient data or evidence that other 
uses of chat; e.g., in PCC, granular road base, flowable fill, 
stabilized road base or chip seals are safe and protective. This final 
rule allows these uses of chat in transportation construction projects 
if the user conducts SPLP testing and the leachate does not exceed the 
National Primary Drinking Water Standards for lead and cadmium and the 
freshwater chronic National Recommended Water Quality Criteria for zinc 
of 120 [mu]g/l.
    At proposal, the Agency also solicited comment on whether Dilution 
and Attenuation Factors (DAFs) should be applied to the leachate 
criteria if such criteria were established. The Agency received only 
one comment on this issue. The commenter suggested that to assess 
surface water quality, a DAF of 100 times the Water Quality Criteria be 
used, while for groundwater no DAF be used and reliance should be 
directly on the primary MCLs. This rule is not establishing DAFs due to 
the lack of data the Agency has regarding the leachate potential for 
uses requiring SPLP testing, a lack of data to properly establish DAFs 
which would assure that chat use is safe and environmentally 
protective, and because the Agency did not use DAFs in evaluating the 
use of chat in hot mix asphalt. Therefore, we are requiring that chat 
used in PCC, granular road base, flowable fill, stabilized road base or 
chip seals undergo SPLP testing prior to its use and the results 
compared to the National Primary Drinking Water Standards for lead and 
cadmium and the freshwater chronic National Recommended Water Quality 
Criteria for zinc of 120 [mu]g/l, without DAFs. Again, if the test 
results do not exceed the National Primary Drinking Water Standards for 
lead and cadmium and the freshwater chronic National Recommended Water 
Quality Criteria for zinc, the test results do not need to be submitted 
to EPA or the State for review and approval.
vii. Rationale for Use of Site-Specific Risk Assessments
    As noted above, a chat user can conduct SPLP testing prior to use 
in PCC, granular road base, flowable fill, stabilized road base or chip 
seals to demonstrate, on a case-by-case basis, that the use of chat in 
such uses are safe and environmentally protective. If the results of 
such testing exceed the standards noted above, the chat user may still 
make another case-by-case showing by conducting a site-specific risk 
assessment. Our rationale for allowing chat uses based on site-specific 
risk assessments is to encourage greater use of chat provided the uses 
are safe and protective. We believe site-specific risk assessments 
conducted according to EPA guidelines referenced below will provide the 
necessary data to determine whether a proposed use is safe and 
protective. The Agency received comments on the April 4, 2006 proposal 
requesting that EPA allow these uses of chat. Some commenters argued 
that allowing these uses would encourage greater use of chat and 
facilitate the elimination of chat piles. They also suggested that 
these uses would be more protective of human health and the environment 
than the chat piles, however, the commenters did not

[[Page 39343]]

provide data or evidence to show that these uses are in fact safe and 
protective. Nevertheless, EPA agrees with the commenters that 
encouraging chat use, as long as uses are safe and environmentally 
protective, would lead to a quicker drawdown of the chat piles and 
ultimately benefit the communities where the piles are located. As a 
result, the use of chat in PCC, granular road base, flowable fill, 
stabilized road base or chip seals will be allowed in transportation 
construction projects if there is a demonstration through a site-
specific risk assessment, as described below, that the use is safe and 
environmentally protective.
    Such risk assessments involve analyses of how the leachate moves 
into surface or groundwater and whether metals concentrations down 
gradient from the chat use location will exceed relevant standards. 
Therefore, risk assessments involve the modeling of leachate in the 
environment and findings of whether, after such movement, health or 
environmental based standards are exceeded. This type of surface and 
groundwater modeling involves analysis of the type and concentration of 
metals in the leachate and their mobility. A commenter noted that the 
Agency should compare the results of modeling of leachate movement in 
ground water against the National Primary Drinking Water standards as 
the basis in determining if a use is protective. We generally agree 
with this position, as it applies to lead and cadmium. However, in some 
cases, drinking water standards may not be relevant for ground water, 
for example where it is already contaminated so that it is not suitable 
for drinking, and controls are in place to prevent consumption. Also, 
where the ground water drains into surface water, the reviewing agency 
should consider the freshwater chronic Water Quality Criteria for zinc 
of 120 [mu]g/l.
    EPA, or the State environmental agency, if the State chooses to do 
so, will determine whether the proposed use is safe and environmentally 
protective based on the information in the site-specific risk 
assessment. The agency conducting the evaluation may request additional 
information from the chat user to assure that the risk assessment meets 
EPA or State criteria and there is sufficient information to determine 
if the proposed use is safe and environmentally protective.
    EPA, or the state if it chooses to do so, will solicit public input 
by a number of means; for example, it can publish its proposed 
determinations in a local newspaper, prior to making a final 
determination. In addition, EPA will provide sufficient time for the 
public to review and comment on the proposed decision. For example, EPA 
provides 45-days for public review and comment of proposed permit 
decisions under the hazardous waste regulations. Such timeframe may 
also be appropriate in this case. States might achieve the same level 
of public input by following a similar approach.
    If a chat user decides to conduct a site-specific risk assessment, 
it is recommended that they consult with EPA or the State environmental 
agency to discus how best to conduct the risk assessment to reflect 
existing site conditions and receptors.
    EPA has established guidelines on how to conduct risk assessments. 
These guidelines were developed to help guide EPA scientists in 
assessing risks to human health from chemicals or other agents in the 
environment. They also inform EPA decision makers and the general 
public about these procedures. When risk assessments are conducted, we 
recommend that these guidance documents be utilized (see http://cfpub.epa.gov/ncea/cfm/nceaguid_human.cfm). EPA's Superfund program 
has also developed guidance on how to conduct human health and 
ecological risk assessments. Those guidance documents can be accessed 
at: http://www.epa.gov/oswer/riskassessment/superfund_hh_exposure.htm.
viii. Uses Authorized by a State or Federal Response Action
    This rule also establishes a criterion that other uses of chat in 
transportation construction projects funded, in whole or in part, with 
Federal funds will be safe and environmentally protective if they are 
part of, and otherwise authorized by, a State or Federal response 
action undertaken in accordance with Federal or State environmental 
laws. Such actions are undertaken with consideration of site-specific 
risk assessments, which account for the full variety of conditions at 
the site, such as existing contamination in assessing risks to human 
health and the environment. For example, Region 7 assessed the 
protectiveness of using unencapsulated chat as road base for a proposed 
highway bypass and, as a result of a site-specific risk assessment, 
determined that such use, compared to other alternatives, was a more 
protective action (Engineering/Cost Analysis--Highway 71, Jasper 
County, Missouri, USEPA Region 7, August 2000).
    This approach was included in the proposal and the Agency did not 
receive any adverse comments on this approach. The Agency also 
discussed this option during the comment period with State 
environmental regulatory agencies who indicated that they supported the 
ability to utilize chat as a result of their response actions.
ix. Certification
    At proposal, the Agency noted that the rule should include a 
certification requirement. A number of commenters objected to this 
requirement since they argued that this type of reporting would 
increase the cost of using chat and therefore discourage its use. The 
Agency noted at that time that the BIA had established a similar 
certification requirement for chat sold from lands under their 
authority.
    The Agency does not agree that this rule's certification 
requirements will place an undue financial burden on chat users (see 
Economic impact section of this rule). In addition, the Agency believes 
that the certification requirement is necessary to assure that chat 
users comply with today's action, and that it is not used in a manner 
that would necessitate Federal or State cleanup actions. The 
certification will also serve as a means to inform State environmental 
agencies about the use of chat in their state.
    This final rule requires that chat users must submit a signed, 
written certification to the environmental regulatory agency in the 
State where the chat is to be used within 30 days of the date of 
acquisition. The certification will contain the following information: 
location of origin of the chat, amount of chat acquired, and a 
Certification Statement that the chat used in this transportation 
project will meet the criteria established by this rule. If the chat is 
sold or otherwise transferred to another party, the acquirer shall 
provide a copy of the certification to the new owner of the chat. The 
new owner shall submit a certification according to Sec.  278.4(a)(1). 
The new certification supersedes all previous certifications.
    The acquirer of chat, and any other person that receives the chat, 
will also maintain copies of all of the following for three years; (a) 
A copy of the certification following transmittal to the State 
department(s) of the environment, and, as appropriate, (b) any SPLP 
testing results, or (c) any site specific risk assessments.
2. Non-Transportation Uses--Cement and Concrete Projects
    Title VI of Section 6018 of the Safe, Accountable, Flexible, and 
Efficient Transportation Equity Act of 2005 (HR 3 or ``the Act''), 
amended Subtitle F of the Solid Waste Disposal Act (42 U.S.C. 6961 et 
seq.) by adding Sec. 6006. This

[[Page 39344]]

provision also requires the Agency to develop environmentally 
protective criteria for the safe use of chat in cement and concrete 
projects. However, these criteria are only guidance and are not 
Federally enforceable since the Act requires only that transportation 
construction projects funded, in whole or in part, with Federal funds 
meet the criteria established in this rule.
    Non-transportation uses of chat include its use as a raw material 
in the manufacture of cement and as an aggregate in PCC. This final 
rule establishes criteria as guidance for chat used in cement and 
concrete for non-transportation, non-residential projects. 
Specifically, chat used in cement and concrete in non-transportation 
construction projects should only be used in non-residential 
construction projects, and for structural purposes if, based on a case-
by-case basis, a demonstration shows that the proposed use of chat is 
safe and environmentally protective. The remainder of this section 
discusses the approach and rationale for the approach taken.
a. What is our approach?
    Based on the lack of leaching data available on the use of chat in 
PCC, the Agency is establishing guidance that chat used in cement and 
concrete projects for non-transportation uses rely on the same approach 
taken for the transportation use of chat used in PCC. That is, for such 
uses, the Agency recommends that chat only be used in cement and 
concrete for non-transportation, non-residential construction projects 
if, on a case-by-case basis, either: (1) Synthetic Precipitation 
Leaching Procedure (SPLP, EPA SW-846 Method 1312) tests are conducted 
on the proposed material and the leachate testing results show that 
concentrations in the leachate do not exceed the National Primary 
Drinking Water Standards for lead and cadmium and the fresh water 
chronic National Recommended Water Quality Criterion for zinc of 120 
[mu]g/l; or (2) EPA (or a State environmental Agency, if it chooses to 
do so) has determined, based on a site-specific risk assessment and 
after notice and opportunity for public comment, that the releases from 
the chat mixture in its proposed use will not exceed the National 
Primary Drinking Water Standards for lead and cadmium in drinking water 
sources and the fresh water chronic National Recommended Water Quality 
Criterion for zinc of 120 [mu]g/l in surface water. It is recommended 
that such a finding should be subject to public notice and comment 
before any decision is final.
    At proposal, the Agency sought comment on whether it should place 
some restrictions on the use of chat in cement and concrete in non-
transportation projects. The proposal offered a restriction that chat 
used in such non-transportation projects be limited to non-residential 
uses. The Agency assessed information about potential exposure of 
metals in cement and concrete containing chat when used for residential 
purposes and was unable to find data on whether such use presented 
risks to human health or the environment. Due to the lack of 
information, the Agency proposed to limit potential exposures by 
limiting chat in cement and concrete to only non-residential uses. That 
is, the guidance would allow, after SPLP testing or site-specific risk 
assessment, chat in cement or concrete to be used in commercial and 
industrial uses. Some commenters supported this limitation to non-
residential uses to limit potential human exposure to lead. Other 
commenters requested that such uses also be allowed in residential 
structural uses. However, the Agency did not receive data or 
information supporting this request. Considering the lack of data, the 
range of risks related to the residential use of chat in cement and 
concrete remains largely unknown, and that there is the potential for 
these uses to be used for ``sham recycling,'' the Agency believes it is 
prudent to maintain the non-residential restriction in our guidance, 
even though we recommend in this rule that a case-by-case demonstration 
be made that such use is safe and environmentally protective.
b. What is the rationale for this guidance?
    As noted previously, the Peer Review Panel that reviewed the risk 
screen document and commenters to the proposed rule indicated that 
there was insufficient leachate data to characterize the risk from the 
use of chat in cement and concrete. Therefore, as we discussed 
previously, this guidance recommends that for non-transportation 
construction projects, chat only be used in cement and concrete for 
non-residential uses and only if a case-by-case showing is made, based 
on SPLP testing or a site-specific risk assessment, that the proposed 
use is safe and environmentally protective.
    In the past, chat has been used in the manufacture of cement and 
used in concrete for building foundations and roads. Ash Grove Cement, 
in a communication with EPA (Memo to File: Conversation with Ash Grove 
Cement Regarding Use of Chat, which is available in the docket to this 
final rule), indicated that it had produced cement clinker in 2001-2003 
using chat as a silica substitute. According to Ash Grove, the clinker 
produced with chat met American Society for Testing and Materials 
(ASTM) standards for clinker. However, Ash Grove is no longer producing 
cement with chat. The Agency also reviewed published data and conducted 
interviews with chat sellers and State regulators and determined that 
chat is not currently being used in cement manufacturing or in non-
transportation PCC projects.
    Pursuant to section 6006(a)(1) of the Act, the Agency reviewed the 
possible use of chat as aggregate in concrete, and as it did in its 
transportation construction projects evaluations, concludes that 
certain non-transportation uses of chat in concrete may be safe and 
environmentally protective. However, due to the lack of data for non-
transportation uses, information is required that shows such uses are 
protective. Consequently, EPA recommends that using chat in cement and 
concrete be allowed only if a case-by-case showing is made that shows 
such use is safe and environmentally protective (see discussion under 
concrete in transportation uses for further details of the approach 
recommended and our rationale). To meet this goal, the Agency 
recommends that such non-transportation uses of chat in cement and 
concrete projects be limited to non-residential foundations, slabs, 
concrete wall panels, retaining walls, commercial and industrial 
parking areas and sidewalks. Other non-residential uses also may be 
approved after a review of SPLP test data or a site-specific risk 
assessment as described throughout this final rule. As noted 
previously, we would not recommend that chat be used in residential 
settings (e.g., concrete countertops, sidewalks, foundations, slabs, 
driveways, roads).
    There were comments raising concerns about the possible exposure of 
workers involved in non-transportation construction projects to chat in 
cement or concrete. The Agency has reviewed the Occupational Safety and 
Health Administration (OSHA) standards governing worker health and 
safety related to the construction and demolition of non-residential 
non-transportation uses of cement and concrete. Based on this review, 
the Agency concludes that existing standards require employers to 
provide adequate protection to workers from dusts and metals and these 
standards would extend to dusts and metals from cement and concrete 
containing chat. It should also be noted that when chat is

[[Page 39345]]

used as an aggregate in concrete, worker exposures would be limited 
since the metals would already be bound.

C. Relationship of This Rule to Other Federal Regulations and Guidance

    For all uses of chat in transportation construction projects 
carried out, in whole or in part, with Federal funds that is affected 
by this action, users must meet the relevant specifications (e.g., for 
durability, granularity) established by the relevant state departments 
of transportation and the Federal Highway Administration (FHWA), prior 
to it being used in transportation projects. This final rule does not 
affect or change these specifications and requirements.
    The FHWA established minimum standards at 23 CFR Part 626 for 
Highways (including references to the AASHTO Standard Specifications 
for Transportation Materials and Methods of Sampling and Testing) and 
at 23 CFR Part 633, Required Contract Provisions. Aggregate 
requirements for Concrete include AASHTO-6, Fine Aggregate for Portland 
cement concrete and AASHTO-80, Coarse Aggregates for Portland cement 
concrete. Technical requirements for Hot Mix Asphalt include AASHTO-29, 
Fine Aggregate For Bituminous Paving Mixtures and ASTM D6155, Standard 
Specification for Nontraditional Coarse Aggregates for Bituminous 
Paving Mixtures. FHWA National Highway Standard Specifications and 
Supplements is divided into topic areas corresponding to the divisions 
used in the ``Guide Specifications for Highway Construction'' Manual 
published by the AASHTO and can be accessed at (http://fhwapap04.fhwa.dot.gov/nhswp/servlet/
LookUpAgency?category=Standard+Specifications+and+Supplements) \12\.
---------------------------------------------------------------------------

    \12\ State highway construction specifications can be found at 
the following internet web sites for Oklahoma (http://www.okladot.State.ok.us/materials/700index.htm), Kansas (http://www.ksdot.org/burMatrRes/specification/default.asp), and Missouri 
(http://www.modot.State.mo.us/business/standards_and_specs/highwayspecs.htm).
---------------------------------------------------------------------------

    In addition, ASTM Standard C-33 restricts the amount of chert that 
may be mixed into PCC when the chert has a specific gravity (ratio of 
its density to the density of water) less than 2.4. Chat in the Tri-
State area, a form of chert, has a specific gravity greater than 2.4 
and thus, would not be limited by this standard. Chat does, however, 
have the potential to be a poor performing aggregate when used in PCC 
due to its potential alkali-silica reactivity (ASR) \13\.
---------------------------------------------------------------------------

    \13\ The Agency also reviewed studies on the potential for 
alkali-silica reactions in chat concrete and concludes that it can 
be used if appropriate materials testing is conducted prior to use.
---------------------------------------------------------------------------

    The Agency also assessed current regulation of dusts from milling 
and demolition. As part of this assessment, based on the Peer Review 
comments, the Agency conducted an additional risk screen from the 
milling of chat encapsulated in asphalt road surfaces. Based on this 
review and analyses, we conclude that exposure to fine particles 
released during milling and demolition operations would be limited to 
on-site workers (for the basis of this conclusion, see Section V). The 
Occupational Safety and Health Administration have established limits 
for worker exposure to the metals found in chat (29 CFR 1926.55--Safety 
and Health Regulations for Construction, Gases, Vapors, Fumes, Dusts, 
and Mists, available at: http://www.osha.gov/pls/oshaweb/owastand.display_standard_group?p_toc_level=1&p_part_number=1926). EPA has reviewed the OSHA standards (see Section V ``What 
Are the Environmental and Health Impacts?'' below) and concludes that 
the OSHA standards require adequate worker health and safety protection 
and thus, it is not necessary to promulgate additional standards to 
address this issue.

D. How Does this Rule Affect Chat Sales From Lands Administered by BIA 
or Directly From Tribal Lands?

    BIA signed a Memorandum of Agreement with EPA Region 6 in February 
2005, designed to lead to the renewed sale of chat from Tribal lands 
and from lands administered by BIA. EPA's rule does not prevent chat 
sales, nor is it intended to delay such sales. This rule is consistent 
with BIA's chat sales requirements.
    The draft sales agreement prepared by BIA requires the submittal of 
a certification which requires buyers of chat from tribal lands to use 
it in a fashion which is deemed acceptable by EPA. This rule requires 
the same certification for the use of non-tribal chat.

E. How Does This Rule Affect CERCLA Liability, Records of Decision, and 
Response Actions?

    If waste material, such as chat, is used in a way that creates a 
threat to human health or the environment, the owner of the property 
and the party responsible for creating the hazardous situation could be 
liable for conducting or financing a response action under CERCLA or 
State law.
    This rule establishes criteria for chat use in federally funded 
transportation construction projects. However, such Federal funding 
does not include compensation for any response action as defined in 
CERCLA section 101 (25), (42 U.S.C. Section 9601 (25)) involving chat 
or other hazardous substances.
    Finally, nothing in this rule shall affect existing RODs issued at 
EPA National Priorities List sites or Removal Decisions associated with 
chat nor does the rule affect the determination of liability as noted 
in CERCLA Sections 104, 106, and 107 or State corrective action 
decisions.

F. How Does This Rule Affect the Use of Federal Funds Administered by 
the U.S. Department of Transportation for Transportation Construction 
Projects?

    Through Title VI of Section 6018 of the Safe, Accountable, 
Flexible, and Efficient Transportation Equity Act of 2005 (HR 3 or 
``the Act''), Congress amended Subtitle F of the Solid Waste Disposal 
Act (42 U.S.C. 6961 et seq.) by adding Sec. 6006. This provision 
requires, among other things, for the Agency to develop environmentally 
protective criteria (including an evaluation of whether to establish a 
numerical standard for concentrations of lead and other hazardous 
substances) for the safe use of granular mine tailings from the Tar 
Creek, Oklahoma Mining District, known as ``chat,'' in transportation 
construction projects that are carried out, in whole or in part, using 
Federal funds. Section 6006(a)(4) requires that any such use meet EPA's 
established criteria.
    As noted above, the oversight of Federal funds used in 
transportation is the responsibility of the U.S. DOT. Its policies and 
procedures related to the management of those funds can be found in the 
Code of Federal Regulations beginning at Title 23 Part 1(23 CFR 1). DOT 
requires that users of Federal transportation funds must comply with 
applicable State or Federal regulations (23 CFR 1.9 and 1.36). DOT will 
include reference to compliance with this rule in its guidance 
regarding the awarding of federal transportation funding.

V. Impacts of the Final Rule

A. What Are the Potential Environmental and Public Health Impacts From 
the Use of Chat in Transportation Construction Projects?

    For the proposed rule, we conducted an assessment of the risks 
associated with the proposed use of chat. (See the preamble to the 
proposed rule at 71 FR 16729, April 4, 2006 and the Report on Potential 
Risks Associated with the Use of Chat from the Tri-State Mining Area

[[Page 39346]]

in Transportation Projects (RTI, 2006) for more details on this 
assessment.) Data from studies conducted by OU present total metal 
concentrations and leaching characteristics of (1) asphalt concrete 
surface and base mix formulations prior to roadway application, (2) 
asphalt and stabilized base samples from roads currently in use, (3) 
spent asphalt concrete samples that were broken up and stored in piles, 
and (4) milled asphalt concrete samples intended to simulate 
weathering. These studies show that the metals are tightly bound in the 
encapsulated matrix when the total metals concentrations in asphalt 
concrete samples are compared to corresponding TCLP and SPLP leachate 
concentrations. In particular, for asphalt concrete surface mix and 
stabilized road base uses for all four categories, the highest TCLP 
concentrations reported for lead and cadmium were below the toxicity 
characteristic (TC) regulatory limits (5 mg/L and 1 mg/L, 
respectively). In fact, when the metals were detected, in many cases, 
they were below the drinking water MCLs for lead and cadmium.\14\ For 
zinc, when detected, the TCLP concentrations were found to be generally 
above the SMCL (5 mg/L) by up to a dilution and attenuation factor of 
16. As we have noted earlier, however, we believe that use of the TCLP 
in evaluating the leaching potential of encapsulated chat used in 
transportation construction projects is inappropriate since it does not 
accurately reflect the environmental conditions of the management 
scenario. Rather, we believe the SPLP is a more appropriate test of the 
conditions expected to lead to leaching of metals from this material. 
In addition, where leachate testing was conducted using the TCLP and 
SPLP methods, in all cases, the concentrations of the metals were 
approximately an order-of-magnitude lower for the SPLP as compared to 
the TCLP. In most cases, the SPLP concentrations were below the MCLs 
for lead and cadmium and were always below the SMCL for zinc.
---------------------------------------------------------------------------

    \14\ Comparisons of leachate concentrations with drinking water 
criteria assume that no dilution or attenuation occurs before the 
dissolved metals reach a drinking water well or surface water. The 
Agency believes this worst case scenario is highly unlikely to occur 
in the area of the country where the use of chat is occurring.
---------------------------------------------------------------------------

    In summary, this assessment concluded that based on the available 
reports and data reviewed, the use of chat as an aggregate for hot mix 
asphalt poses negligible risks to human health through the groundwater 
exposure pathway, while some unencapsulated uses of chat may pose 
substantial risks to human health and the environment. The leachate 
data representing the binding capacity of the asphalt matrix--
particularly in hot mix asphalt--show that the metals are tightly bound 
throughout the life of these products.
    By inference and based on limited data, it appears as though 
certain other uses of chat, such as chat contained PCC, flowable fill 
and stabilized base would have similar binding properties that would 
reduce the leaching of metals. However, the available leachate data on 
these uses are very limited, and may be a concern given the volume of 
chat that could be used in road construction projects.
    In addition to these data deficiencies on specific uses, we 
identified other data gaps with respect to risk, including the milling 
of chat-containing asphalt concrete. Milling of asphalt concrete 
roadways during resurfacing would likely release to the air fine chat 
particles, which could lead to contamination of residential soils and 
homes located in the vicinity of a road construction project. Our 
assessment concluded that these events would be episodic and infrequent 
(corresponding to approximately once over a 15 year lifespan of the 
asphalt), resulting in transitory exposures of relatively short 
durations. The Agency assumed that the milling operations would be 
subject to regulations and best management practices that would protect 
the health of workers. However, the data were not available to evaluate 
the potential exposures to nearby residents from chat concrete 
particles blowing on to residential areas. The assessment concluded, 
however, that the uncertainty of the exposures to residents from 
milling and management of encapsulated chat products during road 
resurfacing could be an area for future study.
    The Agency also considered in its assessment non-transportation 
uses and the demolition of structures containing chat. We did not 
perform any environmental modeling as with the evaluation of 
transportation uses. However, with existing fugitive dust regulations 
and demolition practices, we concluded that exposures from dust 
generated during the use or demolition of chat in concrete buildings 
would not pose significant risks to human health.
    Concurrent with the public notice and comment period for the 
proposed rule, the Agency conducted an external peer review of its 
assessment, Report on Potential Risks Associated with the Use of Chat 
from the Tri-State Mining Area in Transportation Projects. Based on the 
comments received from the public and from the Peer Reviewers, the 
Agency has revised the screening evaluation report to reflect those 
comments. The following discussion provides the Agency's response to 
the major comments received from the peer reviewers. In addition, the 
revised report and our response to comments are provided in the docket 
for this rule.
    The following are the major issues raised by the peer reviewers and 
the Agency's responses.
(1) Potential Exposures During the Milling Process Were Not Evaluated
    The peer review commenters believe that the lack of data on air 
emissions from the grinding of the road surface prior to resurfacing 
(``milling'') is a considerable source of uncertainty in evaluating the 
potential risks of using chat in hot mix asphalt. They contend that 
potential exposure to chat dust generated during the milling of asphalt 
concrete roads, in addition to the storage of milled materials, should 
be evaluated through pathways that consider both the inhalation of dust 
and the incidental ingestion of metals contaminated soil from areas 
adjacent to a roadway being milled. In addition, peer review commenters 
noted two additional concerns associated with the milling process: (a) 
Addressing the short-term exposure of lead to a developing fetus or 
young child during critical and sensitive periods of growth, and (b) 
considering background levels of lead in the screening analysis.
    The Agency believes that the concerns raised by the peer reviewers 
are valid and conducted further study to address them. Specifically, we 
performed a screening analysis to evaluate exposures through direct 
inhalation of air emissions associated with milling and incidental 
ingestion by a child of metals-containing soils adjacent to a milled 
roadway. The assessment was designed to be conservative by selecting 
both a methodology and the use of high-end parameters that result in 
upper-bound estimates of hazard and risk. Examples of high-end 
parameters used in the screen are: (1) Total metals concentrations for 
lead, zinc, and cadmium from the 2005 OU study where chat comprised 40% 
of the aggregate used in hot mix asphalt, where typical hot surface mix 
includes up to 20% chat, (2) the risk screen utilized maximum, hourly 
air concentrations, rather than an average concentration for inhalation 
exposure to an adult and also to a child (using the Agency's Integrated 
Exposure Uptake Biokinetic Model for lead in Children (IEUBK), (3) the 
risk screen assumed the placement of the milled asphalt concrete 
storage pile on the side of a

[[Page 39347]]

road closest to a receptor and locating the receptors at the point of 
maximum off-site air concentration, (4) the risk screen assumed 
exposure to chat dust occurs 24 hours/day, for seven days a week, and 
(5) protective assumptions were used with respect to emissions factors 
for street sweeping and storage pile loading/unloading operations and 
meteorological conditions.
    The results of this additional analysis show that the milling of 
chat in asphalt concrete roadways will not adversely affect public 
health. Specifically, for the direct inhalation pathway, the highest 
cancer risk predicted for cadmium was 2 x 10-9 (that is, 2 
excess cases of cancer per 1,000,000,000 people exposed to the 
estimated air concentration). The highest non-cancer hazard quotient 
for cadmium was 0.004 (a hazard quotient is the ratio of the air 
concentration of cadmium and the level at which no adverse effects are 
expected; if the hazard quotient is less than 1, then no adverse health 
effects are expected as a result of exposure). For the direct ingestion 
of soil adjacent to the roadway, the predicted concentrations of metals 
in soil were 37.6 (Zn), 3.2 (Pb), and 0.2 (Cd) mg/kg soil, all of which 
are below (a) The generic EPA Superfund Soil Screening Levels (SSLs) 
for cadmium and zinc, (b) the 400 ppm CERCLA/RCRA screening level for 
lead in residential soils, and (c) the background soil concentrations 
for the western U.S. The comparison with background concentrations was 
intended to provide additional insight into the contribution to the 
current environmental ``burden'' of these metals in the area in which 
chat-containing surface mixes could be used. A soil concentration below 
background levels suggests that the milling operations will not result 
in significant increases in the zinc, lead, and cadmium concentrations 
in soil.
    In order to address the concern of lead exposures for children, the 
Agency used the IEUBK model, which includes multiple pathways of lead 
exposures (for example, inhalation of dust, ingestion of soil and dust, 
and dietary intake), and is considered a good predictor of potential 
long-term blood-lead levels for children in residential settings. We 
ran the IEUBK model using the maximum air concentration estimated from 
the direct inhalation analysis, and both the soil concentration we 
estimated due to milling operations and a separate analysis using a 
background soil concentration for lead reported in the western U.S. In 
both cases, a hypothetical child exposed to the estimated air and soil 
levels resulted in a chance of less than 5% of exceeding a 10[mu]g/dL 
blood-lead level. The blood-lead levels predicted were 4.328[mu]g/dL 
and 4.473[mu]g/dL, respectively, from the lead levels we estimated in 
soil from milling operations and for background soils. The criterion of 
no more than a 5% chance of exceeding a 10[mu]g/dL blood-lead level is 
the current Agency guidance level. The Center for Disease Control 
considers a blood-lead level of 10[mu]g/dL to be of concern for 
children.
    A complete discussion of the screening analysis for the milling of 
asphalt concrete roads is available in the public docket supporting 
this final rule. In addition, the screening level analysis was reviewed 
by selected Agency experts in the fields of emissions modeling and risk 
assessment. Their comments are also in the docket supporting this final 
rule. Responses to their comments are reflected in the final document 
for the screening analysis (RTI, 2007).
(2) Demolition
    The peer review commenters raised concerns that dusts resulting 
from the demolition of chat contained in asphalt concrete and PCC could 
pose a threat to human health. Road surfaces using chat may also be 
demolished at the end of their useful life (like conventional asphalt 
concrete, the useful life could be on the order of 15 years). The 
demolition of road surfaces containing chat would likely involve low 
emissions of chat dust particles, theoretically with subsequent 
dispersion and deposition to nearby soils. Based on discussions with 
demolition contractors, it is apparent that dusts from such demolitions 
are regulated under the State fugitive dust regulations. Exposure to 
such dusts probably would be limited to workers because existing State 
regulations require that dusts be contained within the area of origin. 
As noted elsewhere in this preamble, OSHA has established exposure 
limits for dusts and metals for workers in construction and demolition. 
Most, if not all, road concrete which is demolished is reused as fill 
or as road base. Based on the information noted above, the Agency 
concludes that exposure to chat in demolished pavement does not present 
a significant risk.
(3) Data Are Insufficient To Establish Risks From the Use of 
Encapsulated Chat in Products Other Than Hot Mix Asphalt
    The peer review commenters noted that there is very limited 
information to determine whether the use of chat in products other than 
HMA poses low risk. One of the Peer Reviewers stated that it is 
``likely that the risk from other encapsulated forms will be closer to 
HMA than to unencapsulated forms, but it is not possible to state how 
close it will be to the HMA risks.''
    The Agency generally agrees that data are insufficient to determine 
if the use of specific products other than HMA evaluated in the Report 
on Potential Risks Associated with the Use of Chat from the Tri-State 
Mining Area in Transportation Projects are environmentally safe. 
Consequently, as discussed elsewhere in this preamble, the Agency is 
allowing the use of chat in Portland cement concrete products (and 
certain other uses) if a person can demonstrate, on a case-by-case 
basis, either that: (1) Synthetic Precipitation Leaching Procedure 
(SPLP, EPA SW-846 Method 1312) tests are conducted on the proposed 
material and the leachate testing results show that concentrations in 
the leachate do not exceed the National Primary Drinking Water 
Standards for lead and cadmium and the fresh water chronic National 
Recommended Water Quality Criterion for zinc of 120 ug/l \15\; or (2) 
EPA (or a State environmental Agency, if it chooses to do so) has 
determined, based on a site-specific risk assessment and after notice 
and opportunity for public comment, that the releases from the chat 
mixture in its proposed use will not cause an exceedance of the 
National Primary Drinking Water Standards for lead and cadmium in 
potential drinking water sources or the fresh water chronic National 
Recommended Water Quality Criterion for zinc of 120 ug/l in surface 
water.
---------------------------------------------------------------------------

    \15\ It should be noted that this case-by-case showing does not 
require public notice and comment.
---------------------------------------------------------------------------

    We believe this approach directly addresses the Peer Review 
commenters concerns, while at the same time allow persons to proceed 
with the use of chat in other products or activities if they can make 
the relevant showing.
(4) Non-Transportation Risks-Demolition
    Peer review commenters requested that the Agency carefully review 
whether existing regulations adequately protect workers from the 
demolition of chat encapsulated materials. To address that request, 
this assessment considered how dust generated during the demolition of 
nonresidential buildings which used chat encapsulated in PCC would 
occur and whether regulations address worker exposure.\16\ The Agency

[[Page 39348]]

assumed that such buildings would be demolished once every 30 years, 
based on the Internal Revenue Service allowable straight-line 
depreciation for non-residential real property of 31.5 years. The 
Agency determined that demolition practices, as noted by the National 
Association of Demolition Contractors, would generally generate dusts 
for periods rarely in excess of 20-30 minutes when buildings are 
imploded. Furthermore, the Agency has reviewed the fugitive dust 
demolition regulations in Oklahoma, Missouri, and Kansas and found that 
building demolition requires a general fugitive dust permit that 
mandates that demolition related dusts be contained within the property 
line (most often through the use of water sprays). Based on this 
information, the Agency concludes that dusts from the demolition of 
nonresidential buildings with chat contained in PCC are not likely to 
present a significant threat to human health.
---------------------------------------------------------------------------

    \16\ The American National Standards Institute ANSI-A 10.6-1983 
American National Standard for Demolition Operations Safety 
Requirements set minimum dust exposure limits and recommends that no 
worker shall be permitted in any area that can adversely affect them 
when demolition operations are being performed.
---------------------------------------------------------------------------

    Even if chat metal levels do not trigger OSHA requirements, 
however, other OSHA controls would still be utilized to address worker 
health risks from exposure to fine particulates, which indirectly 
addresses the issues associated with chat. In particular, demolition of 
concrete structures is known to produce extremely fine particles of 
crystalline silica. Breathing crystalline silica dust can lead to 
silicosis, a commonly known health hazard which has been associated 
historically with the inhalation of silica-containing dusts. Silicosis 
is a lung disease which can be progressive and disabling; it can lead 
to death. The OSHA standards for exposure to dust, (29 CFR 1926.55) 
prohibit employee exposure to any material at concentrations above 
those specified in the ``Threshold Limit Values of Airborne 
Contaminants for 1970.'' OSHA has established for crystalline silica 
dust a Permissible Exposure Level which is the maximum amount to which 
workers may be exposed during an 8-hour work shift. NIOSH has 
recommended an exposure limit of 0.05 mg/m\3\ as a time-weighted 
average for up to a 10-hour workday during a 40-hour workweek. Although 
the Agency has no reason to believe that chat contained in PCC would 
increase the levels of fine particulates, including crystalline silica, 
we believe the OSHA/NIOSH standards will provide adequate protection to 
workers from potential exposure.
    OSHA has also established worker health and safety standards 
specific to building demolition in 29 CFR 1926 Subpart T. These 
standards require an engineering survey of the building prior to 
demolition to identify any risks and implementation of project wide 
dust controls. The standards also require compliance with NIOSH 
respirable dust standards which essentially require the use of 
respirators, if standards noted in 29 CFR 1910 are exceeded. Based on 
the Agency's review of the OSHA standards, we conclude that these 
regulations provide adequate protection to onsite demolition workers.
    One of the Peer Reviewers noted that NIOSH and OSHA standards may 
not apply to county or State highway workers and that those safeguards 
would not actually protect workers potentially exposed to dusts during 
milling or demolition. The Agency has reviewed State and Federal worker 
health and safety laws as they apply to demolition, and does not agree 
that there is insufficient regulatory protection of workers. The 
commenter also noted that existing regulations are not being enforced. 
While the Agency has not been able to determine whether this allegation 
is accurate, it is beyond the scope of this effort to determine whether 
these regulations are being enforced by the states or others.
(5) The Risk From the Generation of Chat Fines During Processing Was 
Not Evaluated
    The peer review commenters noted that the rule should include 
criteria addressing the handling and disposal of chat fines resulting 
from the wet sizing of chat. First, the Agency would note that this 
final rule does not require that the raw chat be washed or sized prior 
to being used. Therefore, any fines that are generated would not be the 
result of this rule. Nevertheless, the Agency evaluated the risks from 
exposure to fines from chat washing facilities during Superfund Site 
investigations at the NPL Sites in the Tri-State Mining District. The 
information we have shows that fines may release metals into the 
environment. However, the release of these metals can be effectively 
controlled by EPA through its oversight authority of the Tar Creek 
Superfund site. In addition, we believe that most chat washing will 
continue to be conducted at the two known commercial chat washing 
facilities located within the Superfund Sites. However, to the extent 
that other chat washing facilities become operational, we also believe 
that they will be adequately controlled based on our review of the air 
and water regulations in Oklahoma, Missouri and Kansas. (See Section 
III for a discussion of EPA's evaluation of the states regulatory 
programs to control air and water releases at asphalt plants, PCC 
plants and chat washing facilities.)
(6) Ecological Risks
    The peer review commenters noted that there should be a more 
comprehensive analysis of the ecological risks from chat use. 
Environmental quality information presented in several studies 
indicated that damages to streams had been documented for the Tri-State 
Mining Area; however, these studies did not address encapsulated chat 
uses, but were from multiple sources of contamination associated with 
lead and zinc mining, including subsurface sources (flooded mine 
shafts), surface sources (chat piles, tailing sites), and smelting 
operations. SPLP analyses for chat encapsulated in hot mix asphalt (OU, 
2005) shows that zinc concentrations, when detected, were below EPA's 
National Recommended Water Quality Criteria (http://www.epa.gov/waterscience/criteria/wqcriteria.html) for the protection of aquatic 
life. This study did not find detectable levels of lead or cadmium in 
any leachate using the SPLP method. We do not foresee that 
environmental conditions could occur where metals from chat used in 
transportation projects, that are funded, in whole or in part, using 
Federal funds, would reach surface waters at levels of concern either 
through run-off to nearby soils, which would have subsequent 
attenuation before reaching surface waters, or via the groundwater 
pathway, which would have additional attenuation and dilution in 
groundwater before reaching nearby receiving waters.

B. What Are the Economic Impacts?

    This Part summarizes projected cost impacts, economic impacts, and 
benefits associated with this final rule. A brief market profile is 
first discussed, followed by specification of the economic baseline. 
Costs and economic impacts are next discussed. These estimates are 
presented on an annualized basis. Finally, this Part presents a 
qualitative discussion of potential benefits associated with this final 
rule.
1. Chat Market Profile
    Chat is a byproduct of mining and milling operations that has been 
exempted from regulation as a ``hazardous waste'' under Subtitle C of

[[Page 39349]]

RCRA.\17\ However, it can pose risks to human health and the 
environment. Currently, chat in the Tri-State Mining District is found 
in above-ground piles of varying sizes, reflecting the different types 
of mining operations that occurred in each area. The total quantity of 
chat in the Tri-State Mining District is roughly 100 million tons. A 
small percentage of this total is currently used annually in road 
building or other beneficial use projects.
---------------------------------------------------------------------------

    \17\ See 40 CFR 261.4(b)(7).
---------------------------------------------------------------------------

    A small, but well-established market for chat in transportation 
applications currently exists. The preparation and use of chat is 
dominated by a few small operations that purchase, process, and sell 
chat to area hot mix asphalt plants for use as an aggregate. 
Approximately 95 percent of all current chat use is for aggregate in 
hot mix asphalt. A wide range of different projects comprise the 
remaining 5 percent.\18\ We have no evidence there is any current use 
of chat in cement or Portland cement concrete.
---------------------------------------------------------------------------

    \18\ Current other uses of chat include: component in anti-skid 
surfaces, sand blasting material, and waste water treatment filters. 
The Agency believes that additional evaluation, outside the scope of 
this rule, is necessary to determine the environmental suitability 
of using chat as sand blasting or as filter media.
---------------------------------------------------------------------------

    The demand for chat as aggregate in transportation uses is price 
sensitive and is limited by various technical and performance 
standards. However, consistent demand exists as long as chat can be 
provided at prices that are competitive with other sources of 
aggregate. The key cost drivers for chat include raw material costs, 
processing and sizing, if conducted, and transportation. The current 
market price for chat, and other forms of aggregate, is approximately 
five dollars per ton. This estimate excludes transport cost, but 
includes processing and sizing, even though such operations are not 
required as part of this rule.
    A limited number of small companies act as brokers, processors and 
distributors (washers and haulers) of the chat in the Tri-State Mining 
District. Chat haulers and washers buy chat from several owners, each 
typically owning only a small amount of the total quantity of chat. 
Chat is both privately and publicly owned, including chat piles located 
on land controlled by the Quapaw Tribe of Oklahoma.
    Historical trends and information from regional chat suppliers 
suggest that the demand for chat for transportation-related uses is 
unlikely to change significantly over the next couple of decades. The 
currently viable market is well defined and transportation costs make 
chat economically unattractive beyond current market limits. Within the 
current market, rates of growth for new roads are modest (estimated at 
less than 2 percent per year) and population densities are low in areas 
where the use of chat is economically competitive. We are not able to 
determine what, if any, impact this rule may have on chat demand for 
use in asphalt concrete. Significant chat use in other applications, 
such as Portland cement concrete, does not appear to be viable at this 
time either for economic or other reasons.
2. Cost Impacts
    The value of any regulatory action is traditionally measured by the 
net change in social welfare that it generates. Our economic assessment 
conducted in support of this rule evaluated compliance costs only. 
Social costs are not assessed due to data limitations and the lack of 
equilibrium modeling capabilities associated with this industry. The 
data applied in this analysis were the most recently available at the 
time of the analysis. Because our data and analytical techniques were 
limited, the cost impact findings presented here should be considered 
generalized estimates.
    Our cost analysis examined the potential impact of the rule based 
on the use of encapsulated chat that comes from the Tri-State Mining 
District. Ninety-five percent of all chat that is used beneficially is 
used in hot mix asphalt transportation construction applications. Our 
cost analysis, therefore, focused on the use of chat as aggregate in 
hot mix asphalt. Chat may also be used for a variety of non-asphalt 
transportation and commercial building products.
    However, available data appear to indicate that non-asphalt uses of 
chat from the Tri-State area generally are not common either due to 
economics or a lack of demand.
    Our analysis indicates that the incremental cost impacts associated 
with this rule are approximately $210,000 per year. This estimate 
incorporates costs associated with certification, recordkeeping and 
reporting. Sampling and analysis costs, if any, for use in concrete 
pavement and nonresidential concrete are not included because the 
Agency is unaware of any such use currently taking place and further 
believes that such use, if it occurs, will be minimal. Additional 
``expanded use'' scenarios are examined in the economic support 
document prepared for this action: Assessment of the Potential Costs, 
Benefits, and Other Impacts of Chat Use in Transportation Projects, 
December 18, 2006. This document is available in the docket established 
for this final rule.
3. Economic Impacts
    Our findings indicate that this final rule is unlikely to result in 
any significant economic impacts to chat suppliers or users in the 
short term. However, the potential impact of this rule on chat use over 
the next ten to twenty years is undetermined. As a result, it is not 
possible to estimate regional or local economic impacts over the long 
term.
4. Benefits
    This final rule is designed to establish standards intended to 
clarify and facilitate the safe use of chat in transportation 
applications carried out, in whole or in part, with Federal funds. The 
social benefits of this action are related to reduced human health and 
environmental damage in the Tri-State Mining District associated with 
the timely removal of chat from existing piles. Should there be no 
accelerated use of chat in transportation projects above the current 
annual rate, human health and environmental benefits may be equivalent 
to those expected under a no action baseline.

VI. State Authority

    This final rule is promulgated under the authority of RCRA Section 
6006. It becomes effective in all relevant States on its effective date 
of September 18, 2007; after that date, chat cannot be used in 
federally funded transportation projects except in compliance with 
today's regulations, regardless of current State law. At the same time, 
nothing in this rule restricts the authority of States, under State 
law, to establish different requirements or procedures for the use of 
chat in federally funded transportation projects. States are neither 
expected nor required to pick up this rule or to seek approval or 
authorization.
    Several provisions of this final rule directly affect States. 
Specifically, Section 278.3(b)(2) prohibits the use of chat in Portland 
cement concrete or in certain other uses (in Federally funded 
transportation projects,) unless approved by EPA or the State 
environmental agency, if the State chooses to be the approving entity, 
where the use will occur. While the rule would allow either EPA or the 
relevant State agency to approve such uses, EPA ordinarily expects to 
defer to the State where a potential chat user requests approval. EPA 
would only expect to act where the State preferred not to, and in these 
cases, it would work in close consultation with the State. In addition,

[[Page 39350]]

Section 278.3(b)(3) provides that EPA or a State, if it chooses to do 
so, may approve the use of chat authorized as part of a State or 
Federal response action undertaken pursuant to applicable Federal or 
State environmental laws. In such cases, EPA expects that the State 
would rely on its existing cleanup regulations and procedures in 
approving the use.

VII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), 
this action is a ``significant regulatory action.'' This action may 
raise novel legal or policy issues [3(f)(4)] arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order. Accordingly, EPA submitted this action to the 
Office of Management and Budget (OMB) for review under EO 12866. Any 
changes made in response to OMB recommendations have been documented in 
the docket for this action.
    This rule is projected to result in cost impacts of approximately 
$210,000 per year. This figure is significantly below the $100 million 
threshold established under part 3(f)(1) of the Order. In addition, 
this rule is not expected to 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. Thus, this rule is not considered to be an 
economically significant action.
    We have prepared an economic assessment in support of this rule. 
This document is entitled: Assessment of the Potential Costs, Benefits, 
and Other Impacts of Chat Use in Transportation Projects, December 18, 
2006. Findings from this document are briefly summarized under Section 
V. B above.

B. Paperwork Reduction Act

    The information collection requirements in this rule have been 
submitted for approval to OMB under the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq. via this preamble instead of a separate Information 
Collection Request (ICR) document.
    The certification, reporting, and record keeping required under 
this rule is necessary to ensure the safe use of the product containing 
chat. Certification, recordkeeping and reporting requirements under 
this rule are not subject to confidentiality restrictions.
    Since the burden associated with this rule is insignificant, a 
separate ICR is not necessary. The burden is projected to affect a 
limited number of entities. These include: three State governments 
(Oklahoma, Missouri, Kansas), one Native American tribe (Quapaw Tribe 
of Oklahoma), and no more than fifty sand and gravel companies located 
in the States of Oklahoma, Missouri, and Kansas (NAICS 4233202).
    The burden on respondents is estimated at 3,800 hours per year, 
with a total annual cost ranging from $152,000 to $228,000, depending 
upon labor costs. Respondents would also need to read and understand 
the rule. The burden associated with reviewing the regulation is 
estimated at 100 hours, with a total annual cost estimated at $5,000. 
The burden on governmental entities is estimated at 380 hours per year, 
with total costs ranging from $15,200 to $22,800 per year. These 
estimates do not include costs related to a user making a case-by-case 
showing to EPA or a State environmental agency that a proposed use is 
safe and environmentally protective. Those costs are not included 
because the Agency believes that there will be very few such requests 
made in any one year. All these estimates are summarized in the Table 
below.

                            Summary of Estimated Burden to Respondents and Government
----------------------------------------------------------------------------------------------------------------
                                                                    Estimated    Estimated
                                          Number of    Estimated    number of      total
                Activity                  hours per     cost per     affected      annual      Estimated total
                                           project        hour       projects      burden        annual cost
                                                                     per year     (hours)
----------------------------------------------------------------------------------------------------------------
Burden to Respondents:
    Certification, Reporting, Record             5.0      $40-$60          760        3,800    $152,000-$228,000
     keeping...........................
Burden to Government (affected States):
    Certification review and                     0.5        40-60          760          380       15,200-22,800
     recordkeeping.....................
----------------------------------------------------------------------------------------------------------------
Note: The additional burden to respondents associated with reading and understanding the regulation is estimated
  at 100 hours, with a total average annual cost estimated at $5,000.

    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a governmental entity. This includes the 
time needed to review instructions; develop, acquire, install, and 
utilize technology and systems for the purposes of collecting, 
validating, and verifying information, processing and maintaining 
information, and disclosing and providing information; adjust the 
existing ways to comply with any previously applicable instructions and 
requirements; train personnel to be able to respond to a collection of 
information; search data sources; complete and review the collection of 
information; and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 
601 et seq., generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act, or any 
other statute. This analysis must be completed unless the agency is 
able to certify that the rule will not have a significant economic 
impact on a substantial number of small entities. Small entities 
include small businesses, small not-for-profit enterprises, and small 
governmental jurisdictions.
    The RFA provides default definitions for each type of small entity. 
Small entities are defined as: (1) A small business as defined by the 
Small Business Administration's (SBA) regulations at 13 CFR 121.201; 
(2) a small governmental jurisdiction that is a government of a city, 
county, town, school district or special district with a

[[Page 39351]]

population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's final rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This section 
summarizes whether the rule establishing criteria for the use of chat 
in transportation construction projects, carried out, in whole or in 
part, with Federal funds, may adversely impact small entities. The 
market for both chat and ``virgin'' aggregate in hot mix asphalt 
production is mature and dominated by small businesses. In order to 
have a significant economic impact on a substantial number of small 
businesses, the criteria for chat use would have to cause a significant 
decrease in the quantity of chat that is used in highway applications. 
Our analysis indicates that the current market area is not likely to 
experience any significant change in the demand for chat as a result of 
the rule. That is, while many chat processors, distributors, and users 
of chat are small businesses, significant economic impacts on a 
substantial number of these entities are not expected.
    The reader is encouraged to review our regulatory flexibility 
screening analysis prepared in support of this determination. This 
analysis is incorporated into the ``Assessment'' document, as 
referenced above.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written Statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written Statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    This final rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) that may result in expenditures of 
$100 million or more for State, local, and tribal governments, in the 
aggregate, or the private sector in any one year. The total costs of 
this action are estimated at $0.21 million per year.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have Federalism implications.'' 
``Policies that have Federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This rule does not have Federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. The rule focuses on establishing 
criteria for chat use in transportation construction projects, carried 
out, in whole or in part, with Federal funds, without affecting the 
relationships between Federal and State governments. Thus, Executive 
Order 13132 does not apply to this rule.
    Although section 6 of Executive Order 13132 does not apply to this 
rule, EPA did consult with representatives of State governments in 
developing this rule. Representatives from the States of Kansas, 
Missouri, and Oklahoma provided valuable input.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175: Consultation and Coordination with Indian 
Tribal Governments (65 FR 67249, November 9, 2000), requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by tribal officials in the development of regulatory policies that have 
tribal implications.'' ``Policies that have tribal implications'' is 
defined in the Executive Order to include regulations that have 
substantial direct effects on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes.
    Under Executive Order 13175, EPA may not, to the extent practicable 
and permitted by law, issue a regulation that has tribal implications, 
that imposes substantial direct compliance costs for which the Federal 
government does not provide funds to pay such costs, and that is not 
required by statute, unless EPA consults with tribal officials early in 
the process of developing the regulation. Similarly, to the extent 
practicable and permitted by law, EPA may not issue a regulation that 
has tribal implications and that preempts tribal law unless EPA, among 
other things, consults with tribal officials early in the process of 
developing the regulation.
    EPA has concluded that this rule does not have tribal implications 
in that it does not have substantial direct effects as specified in the 
Executive Order. In particular, EPA notes that this rule does not 
impose substantial direct compliance costs or pre-empt tribal law. 
However, the Agency recognizes the significant interest that some 
tribes have in this rule. Specifically, some chat piles are located on 
Indian country lands. Allotted lands of the Quapaw Tribe of Oklahoma 
(Quapaw Tribe) are estimated to contain about half of the 29 chat piles 
located within the Picher Mining Field site. This rule is not expected 
to significantly change the demand for, and income from, chat use. To 
the extent this rule encourages the removal of chat from existing 
piles, there is likely to be an improvement to the environment and 
human health in these areas.
    During the development of this final rule, the Agency carefully 
reviewed comments submitted on the proposal by the Quapaw Tribe. Agency 
personnel also consulted with representatives of

[[Page 39352]]

the Quapaw Tribe to assure the tribe that their concerns were given due 
consideration.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    Executive Order 13045 ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that EPA has reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, the Agency must evaluate the environmental health 
or safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This final rule is not subject to the Executive Order because it is 
not economically significant as defined in Executive Order 12866, and 
because the Agency does not have reason to believe the environmental 
health or safety risks addressed by this action present a 
disproportionate risk to children.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This rule is not a ``significant energy action'' as defined in 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)) because it is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law No. 104-113, 12(d) (15 U.S.C. 272 
note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards. This 
rule does not require the application of technical standards (e.g., 
materials specification, sampling, analyses). As such, the National 
Technology Transfer and Advancement Act does not pertain to this 
action.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. Our analysis indicates that chat piles in the Tri-State 
Mining District are, in some cases, located near low-income 
populations. In addition, Quapaw allotted lands are located within the 
Picher Mining Field. Existing data on the human health and ecological 
impacts associated with chat suggests that these populations may be 
adversely affected by the presence of the chat piles. Thus, the removal 
of the chat from piles for transportation construction applications 
that are considered protective of human health and the environment 
would likely have a positive impact on these communities.

K. Congressional Review Act

    The Congressional Review Act (CRA), 5 U.S.C. 801 et seq., as added 
by the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a final rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. Prior to publication of this final rule 
in the Federal Register, we will submit all necessary information to 
the U.S. Senate, the U.S. House of Representatives, and the Comptroller 
General of the United States. Under the CRA, a major rule cannot take 
effect until 60 days after it is published in the Federal Register. 
This action is not a ``major rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Parts 260 and 278

    Environmental protection, Chat, Certification and recordkeeping 
requirements, Incorporation by reference, Indians--lands, Mine 
tailings, Waste.

    Dated: June 5, 2007.
Stephen L. Johnson,
Administrator.

0
For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is amended as follows:

PART 260--[AMENDED]

0
1. The authority citation for part 260 continues to read as follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 6935, 
6937, 6938, 6939, and 6974.


0
2. Section 260.11 is amended by revising the first sentence in 
paragraph (a) and paragraph (c)(3)(vii) to read as follows:


Sec.  260.11  References.

    (a) When used in parts 260 through 268 and 278 of this chapter, the 
following publications are incorporated by reference. * * *
* * * * *
    (c) * * *
    (3) * * *
    (vii) Method 1312 dated September 1994 and in Update III, IBR 
approved for part 261, appendix IX and Sec.  278.3(b)(1).

0
3. Part 278 is added to read as follows:

PART 278--CRITERIA FOR THE MANAGEMENT OF GRANULAR MINE TAILINGS 
(CHAT) IN ASPHALT CONCRETE AND PORTLAND CEMENT CONCRETE IN 
TRANSPORTATION CONSTRUCTION PROJECTS FUNDED IN WHOLE OR IN PART BY 
FEDERAL FUNDS

Sec.
278.1 Definitions.
278.2 Applicability.
278.3 Criteria for use of chat in Federally funded transportation 
projects.
278.4 Certification and recordkeeping requirements.

    Authority: 42 U.S.C. 6961 et seq.


Sec.  278.1  Definitions.

    (a) Asphalt concrete--a layer, or combination of layers, composed 
of a compacted mixture of an asphalt binder and mineral aggregate.
    (b) Chat--waste material that was formed in the course of milling 
operations employed to recover lead and zinc from metal-bearing ore

[[Page 39353]]

minerals in the Tri-State Mining District of Southwest Missouri, 
Southeast Kansas and Northeast Oklahoma.
    (c) Chip seal--a material composed of aggregate placed on top of a 
layer of an asphalt or asphaltic liquid binder. The aggregate may be 
rolled into the binder.
    (d) Cold mix asphalt--refers to an asphalt and aggregate mixture 
composed of binders, soaps, or other chemicals which allow its use when 
cold
    (e) Epoxy seal--refers to the mixture of aggregate in epoxy 
binders. Epoxy seals are typically used as an anti-skid surface on 
bridge decking
    (f) Federal or State response action--State or Federal response 
action undertaken pursuant to applicable Federal or State environmental 
laws and with consideration of site-specific risk assessments.
    (g) Flowable fill--a cementitious slurry consisting of a mixture of 
fine aggregate or filler, water, and cementitious materials which is 
used primarily as a backfill in lieu of compacted earth.
    (h) Granular road base--road base typically constructed by 
spreading aggregates in thin layers of 150 mm (6 inches) to 200 mm (8 
inches) and compacting each layer by rolling over it with heavy 
compaction equipment. The aggregate base layers serve a variety of 
purposes, including reducing the stress applied to the sub grade layer 
and providing drainage for the pavement structure. The granular sub 
base forms the lowest (bottom) layer of the pavement structure and acts 
as the principal foundation for the subsequent road profile.
    (i) Hot Mix Asphalt--a hot mixture of asphalt binder and size-
graded aggregate, which can be compacted into a uniform dense mass. Hot 
mix asphalt also includes hot mix asphalt sub bases and hot mix asphalt 
bases.
    (j) Microsurfacing--polymer-modified slurry seal.
    (k) Portland cement concrete (PCC)--pavements consisting of a PCC 
slab that is usually supported by a granular (made of compacted 
aggregate) base or sub base.
    (l) Pozzolanic--a siliceous material which when combined with 
calcium hydroxide in the presence of moisture exhibits cementitious 
properties.
    (m) Slurry seal--refers to a material composed of emulsified 
asphalt, aggregate, and mineral fillers, such as Portland cement or 
lime which is applied as a thin coating on top of asphalt concrete or 
Portland cement concrete road surfaces.
    (n) Stabilized base--a non-asphaltic road base composed of 
aggregate mixed with a pozzolanic material which increases the bearing 
strength of the material.
    (o) Transportation construction projects--these activities relate 
to the construction of roads and highways and include bases, sub bases, 
road surfaces, bridges, abutments, shoulders, and embankments. They are 
not related to any residential use.
    (p) Tri-State Mining District--the lead-zinc mining areas of Ottawa 
County, Oklahoma, Cherokee County of southeast Kansas and Jasper, 
Newton, Lawrence, and Barry Counties of southwest Missouri.
    (q) Warm mix asphalt--refers to a mixture of an asphalt binder with 
aggregate, paraffin or esterfied wax, and mineral additives that allow 
its use at temperatures much lower than hot mix asphalt.


Sec.  278.2  Applicability.

    These requirements apply to chat from the Tri-State Mining District 
used in transportation construction projects carried out, in whole or 
in part, using Federal funds.


Sec.  278.3  Criteria for use of chat in Federally funded 
transportation projects.

    Chat can be used in transportation construction projects carried 
out, in whole or in part, using Federal funds if:
    (a) The chat is used in hot, warm or cold mix asphalt, in slurry 
seal, microsurfacing, or in epoxy seal; or
    (b) The chat is used in Portland cement concrete, granular road 
base, flowable fill, stabilized road base or chip seal if, on a case by 
case basis either:
    (1) Synthetic Precipitation Leaching Procedure (SPLP) tests are 
conducted on the proposed material using EPA SW-846 Method 1312, 
incorporated by reference in Sec.  260.11 of this chapter, and the 
leachate testing results show that concentrations in the leachate do 
not exceed the National Primary Drinking Water Standards for lead and 
cadmium and the fresh water chronic National Recommended Water Quality 
Criterion for zinc of 120 [mu]g/l; or
    (2) EPA (or a State environmental Agency, if it chooses to do so) 
has determined, based on a site-specific risk assessment and after 
notice and opportunity for public comment, that the releases from the 
chat mixture in its proposed use will not cause an exceedance of the 
National Primary Drinking Water Standards for lead and cadmium in 
potential drinking water sources and the fresh water chronic National 
Recommended Water Quality Criterion for zinc of 120 [mu]g/l in surface 
water; or
    (c) The use of chat has been authorized pursuant to a State or 
Federal response action.


Sec.  278.4  Certification and recordkeeping requirements.

    (a) Certification. For chat used under the jurisdiction of the U.S. 
Department of Interior, Bureau of Indian Affairs, the EPA certification 
below is not applicable. In other jurisdictions, the acquirer shall:
    (1) Submit a signed, written certification to the environmental 
regulatory agency in the State where the chat is to be used within 30 
days of the date of acquisition. The certification shall contain the 
following:
    (i) Location of origin of the chat;
    (ii) Amount of chat acquired; and
    (iii) Certification Statement: I certify under penalty of law that 
the chat used in this transportation project will meet EPA criteria 
found in Sec.  278.3.
    (2) Transfer. If the chat is sold or otherwise transferred to 
another party, the acquirer shall provide a copy of the certification 
to the new owner of the chat. The new owner shall submit a 
certification according to paragraph (a)(1) of this section. The new 
certification supersedes all previous certifications.
    (3) Recordkeeping. The acquirer of chat, and any other person that 
receives the chat, will maintain copies of all of the following for 
three years; a copy of the certification following transmittal to the 
State department(s) of the environment, and, as appropriate; any SPLP 
testing results; or any site-specific risk assessments.
    (b) [Reserved]

[FR Doc. E7-13544 Filed 7-17-07; 8:45 am]
BILLING CODE 6560-50-P