[Federal Register Volume 64, Number 161 (Friday, August 20, 1999)]
[Proposed Rules]
[Pages 45632-45697]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-20546]
[[Page 45631]]
_______________________________________________________________________
Part III
Environmental Protection Agency
_______________________________________________________________________
40 CFR Parts 259, 261, 266, and 270
Standards for the Management of Cement Kiln Dust; Proposed Rule
Federal Register / Vol. 64, No. 161 / Friday, August 20, 1999 /
Proposed Rules
[[Page 45632]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 259, 261, 266, and 270
[FRL-6413-5 RIN 2050-AE34]
Standards for the Management of Cement Kiln Dust
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (``we'' or EPA) is today
proposing a creative, affordable, and common sense approach for the
management of cement kiln dust (CKD) waste under the Resource
Conservation and Recovery Act (RCRA). CKD would remain a non-hazardous
waste provided the following management standards are met. First, for
ground-water protection, the Agency is proposing management standards
which require a landfill to be designed to control releases of toxic
metals to ground water at the point of compliance. Second, to control
releases of fugitive dust, the proposed management standards would
require persons managing CKD waste to cover or otherwise manage the
landfill, CKD handling areas, and CKD storage areas to control wind
dispersal of fugitive CKD. Finally, this rule also proposes
concentration limitations on various pollutants in CKD used for
agricultural purposes. This rule also proposes RCRA Subtitle C
regulatory standards for CKD that is not managed according to the
management standards described above.
DATES: EPA will accept public comment on this proposed rule until
November 18, 1999.
ADDRESSES: Commenters must send an original and two copies of their
comments referencing docket number F-99-CKDP-FFFFF to: RCRA Docket
Information Center, Office of Solid Waste (5305G), U.S. Environmental
Protection Agency Headquarters (EPA, HQ), 401 M Street, SW.,
Washington, DC 20460. Hand deliveries of comments should be made to the
Arlington, VA, address below.
Comments may also be submitted electronically through the Internet
to: rcra-docket@epa.gov. Comments in electronic format should also be
identified by the docket number F-99-CKDP-FFFFF. All electronic
comments must be submitted as an ASCII file avoiding the use of special
characters and any form of encryption.
Commenters should not submit electronically any confidential
business information (CBI). An original and two copies of CBI must be
submitted under separate cover to: RCRA CBI Document Control Officer,
Office of Solid Waste (5305W), U.S. EPA, 401 M Street, SW., Washington,
DC 20460.
Public comments and supporting materials are available for viewing
in the RCRA Docket Information Center (RIC), located at Crystal Gateway
I, First Floor, 1235 Jefferson Davis Highway, Arlington, VA. The RIC is
open from 9 a.m. to 4 p.m., Monday through Friday, excluding Federal
holidays. To review docket materials, it is recommended that the public
make an appointment by calling 703 603-9230. The public may copy a
maximum of 100 pages from any regulatory docket at no charge.
Additional copies cost $0.15/page. The index and some supporting
materials are available electronically. See the ``Supplementary
Information'' section for information on accessing them.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
RCRA Hotline at 800 424-9346 or TDD 800 553-7672 (hearing impaired). In
the Washington, DC, metropolitan area, call 703 412-9810 or TDD 703
412-3323. For more detailed information on specific aspects of this
proposed rulemaking and regulatory decision, contact Bill Schoenborn,
U.S. EPA (5306W), 401 M Street, SW., Washington, DC 20460, (703) 308-
8483, or e-mail: schoenborn.william@epa.gov.
SUPPLEMENTARY INFORMATION: The index and the following supporting
materials are available from the RCRA Information Center:
1. Report to Congress on Cement Kiln Dust (59 FR 709, January 6,
1994).
2. Regulatory Determination on Cement Kiln Dust (60 FR 7366,
February 7, 1995).
3. Notice of Data Availability: Additional Data Available on Wastes
Studied for the Report to Congress on Cement Kiln Dust; Request for
Comments. (59 FR 47133, September 14, 1994).
4. Correction to Notice of Data Availability (59 FR 51440, October
11, 1994).
The index and some of the supporting materials are available on the
Internet. Follow these instructions to access the information
electronically:
WWW: http://www.epa.gov/epaoswer/other/ckd/index.htm
FTP: ftp.epa.gov
Login: anonymous
Password: Your internet address
Files are located in /pub/epaoswer.
The official record for this action will be kept in paper form.
Accordingly, EPA will transfer all comments received electronically
into paper form and place them in the official record, which will also
include all comments submitted directly in writing. The official record
is the paper record maintained at the address in ADDRESSES at the
beginning of this document.
EPA responses to comments, whether the comments are written or
electronic, will be published in a notice in the Federal Register or in
a response to comments document placed in the official record for this
proposed rulemaking. EPA will not immediately reply to commenters
electronically other than to seek clarification of electronic comments
that may be garbled in transmission or during conversion to paper form,
as discussed above.
The contents of today's document are listed in the following
outline:
I. Statutory Authority
II. Background
A. Bevill Amendment
B. Report to Congress and Notice of Data Availability
C. Regulatory Determination and Subsequent Studies
1. Summary of Agency's Determination
2. Proposed Enforceable Agreement
3. The Need for CKD Management Standards
4. New Analyses
D. Beneficial Use of Cement Kiln Dust
III. Discussion of Options to Address Risks From Mismanaged CKD
A. State-Based Approach
B. Memorandum of Understanding
C. Two-Dust Approach
D. Develop Regulations Under Authority of Subtitle D
E. Subtitle C Enforcement Without Listing CKD
F. Tailored Standards Under Subtitle C
G. States Adopt Appropriate Programs
H. Today's Approach--Exclude Properly Managed CKD From Hazardous
Waste Listing
1. Develop Management Standards and Exempt Properly Managed CKD
From Classification as a Hazardous Waste (Management-based Listing)
2. Alternative Management-based Listing
3. Characteristic CKD
4. Apply Tailored RCRA Subtitle C Standards to Improperly
Managed CKD
IV. Proposed Management Standards
A. Protection of Ground-water Resources
1. The Need for Ground-water Protection Standards
2. Applicability
3. Location Standards
4. Performance-Based Standard for the Protection of Ground Water
5. Technology-Based Standards for the Protection of Ground Water
6. Requirements for Ground-water Monitoring
7. Corrective Action
B. Standards for Fugitive CKD Emissions
1. The Need to Limit Fugitive CKD Emissions
2. Applicability
[[Page 45633]]
3. Performance Standard for the Protection of Air
4. Technology-Based Standards for Fugitive Dust Control
C. Closure
D. Post-Closure Care
E. Closure/Post-Closure Planning Requirements
F. Financial Assurance
G. Implementation
1. Notification, Recordkeeping, and Reporting
2. Permitting Requirements
H. Applicability of the Boilers and Industrial Furnaces Rule
I. Exemption from the Definition of Hazardous Waste
1. Waste-Derived Clinker
2. Light-Weight Aggregate Kiln Dust
3. Use of CKD in Removal and Remediation Actions
J. Final Rule Effective Date
V. Subtitle C Backup Standards
A. Subtitle C Requirements for Hazardous CKD Waste
1. 3004(x)--Special Characteristics
2. Facility-wide Corrective Action Requirement
3. Manifest, Recordkeeping, and Reporting Requirements
B. Implementation of Part 259 and RCRA Subtitle C Backup Standards
1. Enforcement
2. Removal of a Hazardous Waste Designation
3. Alternative Approach to Structuring the Performance Standards
VI. Standards for CKD Used as a Lime Substitute
A. Summary
B. CKD Agricultural Use Risk Assessment
1. Risk Assessment Methodology
2. Human Health Criteria and Effects
3. Agricultural Use Practice Assumptions
4. Fate and Transport of Chemical Constituents in the
Environment
5. Uptake of Contaminants in Plant and Animals
6. Receptor Scenarios and Exposure Pathways
7. Lead Risk Assessment
8. Ecological Risk and Phytotoxicity
9. Risk Assessment Results
C. Approach to Establishing Limiting Concentrations
1. Risk-based Approach--Proposed Limiting Concentrations for
Cadmium, Lead, and Thallium
2. Risk-Based Approach--Proposed Limiting Concentration for
Chlorinated Dioxins and Furans
3. Comparison to Agricultural Lime--Proposed Limiting
Concentration for Arsenic
4. Peer Review of the Risk Assessment
D. Implementation of Controls for the Agricultural Use of CKD
E. Alternative Standard to Limit Chlorinated Dioxins and Furans in
CKD
VII. Relationships Between this Action and Other Regulatory Programs
A. Stormwater Regulations
B. Clean Air Act
VIII. State Authority
A. Statutory Authority
B. Effect of Today's Proposed Rule
IX. Regulatory Requirements
A. Regulatory Impact Analysis Pursuant to Executive Order 12866
1. Scope and Approach for Estimating Economic Costs and Impacts
2. Summary of Cost and Impact Results
3. Benefits of the Rulemaking
B. Regulatory Flexibility Analysis
1. Identification of Small Cement Companies
2. Outreach
3. The Agency's RFA Screening Analysis
4. Agency Findings and Conclusions Regarding SBREFA Impacts
C. Environmental Justice--Applicability of Executive Order 12898
D. Protection of Children--Applicability of Executive Order 13045
E. National Technology Transfer and Advancement Act
F. Unfunded Mandates Reform Act
G. Paperwork Reduction Act
H. Executive Order 12875: Enhancing the Intergovernmental
Partnership
I. Executive Order 13084: Consultation and Coordination with Indian
Tribal Governments
Appendix I to the Preamble--Justification for CKD Listing
Appendix II to the Preamble--Reportable Quantities
I. Statutory Authority
Section 3001(b)(3)(C) of RCRA, as amended, required that, after
completing a Report to Congress (RTC) mandated by section 8002(o) of
RCRA, the EPA Administrator must determine whether Subtitle C
regulation of cement kiln dust (CKD) waste is warranted. The RTC
documenting EPA's study of CKD was signed by the Administrator on
December 30, 1993. EPA's regulatory determination was published in the
Federal Register on February 7, 1995 (60 FR 7366). To implement that
determination, EPA is today proposing rules using its authorities under
sections 2002(a), 3001(b)(3)(C) and 3004(x) of RCRA.
II. Background
On October 21, 1976, Congress enacted RCRA (Pub. L. 94-580).
Section 3001 of RCRA mandated that the EPA Administrator ``promulgate
regulations identifying characteristics of hazardous waste, and listing
particular hazardous wastes which shall be subject to the provisions of
this subtitle.'' Section 3004 required the Administrator to promulgate
standards applicable to owners and operators of hazardous waste
treatment, storage, and disposal facilities.
In response to these requirements, EPA proposed regulations for
managing hazardous wastes under Subtitle C of RCRA on December 18, 1978
(43 FR 58946). In this regulatory proposal, EPA proposed to defer most
of the RCRA Subtitle C requirements for six categories of wastes, which
it termed ``special wastes,'' until information could be gathered and
assessed and the most appropriate regulatory approach determined. The
special wastes were wastes typically generated in large volumes, and,
at the time were thought to possibly pose less risk to human health and
the environment than wastes being regulated as hazardous wastes. EPA
identified CKD waste as one of these ``special wastes.'' \1\
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\1\ The other five proposed ``special wastes'' specifically
identified in the 1978 proposed rule were mining waste; utility
waste; phosphate rock mining, benefication, and processing waste;
uranium waste; and oil and gas drilling muds and oil production
brines.
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A. Bevill Amendment
On October 12, 1980, Congress enacted the Solid Waste Disposal Act
Amendments of 1980 (Pub. L. 96-482), which added section
3001(b)(3)(A)(iii) (now frequently referred to as the Bevill Amendment)
to RCRA which, among other things, temporarily exempted ``cement kiln
dust waste'' (along with two other categories of waste) from Subtitle C
regulation, pending completion of certain studies. These amendments
also added section 8002(o), which required the Administrator to study
the adverse effects on human health and the environment, if any, from
the disposal of ``cement kiln dust waste,'' and submit a Report to
Congress on its findings. The 1980 amendments also added section
3001(b)(3)(C), which required the Administrator to make a regulatory
determination, within six months of the completion of the section
8002(o) study, whether or not to regulate CKD waste under Subtitle C of
RCRA.
In response to the 1980 RCRA amendments, on November 19, 1980, EPA
published an interim final amendment to its hazardous waste regulations
to reflect the provisions of the Bevill Amendment (45 FR 76618), which
is codified at 40 CFR 261.4(b)(8). Since that time, CKD has been exempt
from Subtitle C of RCRA--that is, this material has never been
regulated as a hazardous waste under Federal law.\2\
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\2\ It should be noted here that under the RCRA Subtitle C
Boilers and Industrial Furnaces (BIF) Rule, CKD generated by kilns
that burn hazardous waste as fuel may be ineligible for Bevill
Exclusion under certain conditions (see 40 CFR 266.112).
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B. Report to Congress and Notice of Data Availability
To comply with the Congressional mandate and to establish the
factual
[[Page 45634]]
basis for EPA decision making regarding the appropriate regulatory
status of CKD waste under RCRA, EPA published in December 1993 its
``Report to Congress on Cement Kiln Dust'' (RTC). In keeping with the
statutory requirements, the report addressed the following eight study
factors, as articulated at section 8002(o) of RCRA:
(1) The source and volumes of [CKD] generated per year;
(2) Present disposal practices;
(3) Potential danger, if any, to human health and the environment
from the disposal of (CKD);
(4) Documented cases in which danger to human health or the
environment has been proved;
(5) Alternatives to current disposal methods;
(6) The costs of such alternatives;
(7) The impact of those alternatives on the use of natural
resources; and
(8) The current and potential utilization of (CKD).
The RTC also included a review of applicable State and Federal
regulations, so regulatory decisions derived from the report would
avoid duplication of existing requirements.
In preparing the RTC, EPA developed industry-wide and, in some
cases, facility-specific data and analytical methods that reflect the
complexity of the issues addressed in the RTC. Facilities that generate
CKD waste vary considerably in size, location, operational aspects, and
waste management techniques. Moreover, to examine in detail the broad
array of study factors mandated by RCRA section 8002(o), EPA developed
approaches and methods that were sufficiently sophisticated to take
into account the special nature of CKD. The specific methods that EPA
used to address each of the study factors are described in detail in
Chapters 3 through 9 of the RTC. Additional information on the methods
used and supporting data are contained in the Background Documents to
the RTC available from the RIC as discussed above under the ADDRESSES
section.
In 1992 and 1993, the Agency visited 20 cement manufacturing
facilities in the U.S. and obtained samples of cement kiln dust
generated by each operation.\3\ The Agency conducted chemical analyses
on all of the samples for a number of constituents. The analytical
results were used in the development of the RTC, and they were included
in the Agency's RCRA docket that supports the report. Late in the
study, one final set of metals analyses were conducted on the cement
kiln dust samples as managed (e.g., stored, disposed) by six of the 20
facilities sampled. The Agency obtained the raw analytical data too
late for use in developing the RTC, but did include the data in the
RCRA docket for public inspection and comment.\4\
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\3\ The CKD sampling trip reports can be found in the RIC under
the following numbers: Phase I sampling trip reports (Nos. F-94-
RCKA-S0001 to S0066); Phase II CKD sampling trip reports (Nos. F-94-
RCKA-S0067 to S0073).
\4\ All of the analytical data on CKD can be found in the
Technical Background Document: Analysis of CKD Generation and
Characteristics Data, RIC docket Nos. F-94-RC2A-S0017 to S0017.G.
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After issuance of the RTC, the raw data were subjected to data
validation and the analytical results were finalized. Although not used
in the development of the RTC, the Agency did consider these data in
the process of formulating the CKD regulatory determination.
Accordingly, on September 30, 1994, EPA published a Notice of Data
Availability (NODA) (see 59 FR 47133) announcing the availability of
the additional analytical data. On October 11, 1994 (59 FR 51440), the
Agency published a Correction Notice which identified certain errors
and corrected certain portions of the new data pertinent to additional
assessments of potential risk from CKD waste.\5\
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\5\ Additional data on CKD waste studied in the Report to
Congress, including supplemental errata, is available in the RIC
docket under the general identification number F-94-RC2A-FFFFF.
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C. Regulatory Determination and Subsequent Studies
1. Summary of Agency's Determination
On February 7, 1995, EPA issued the determination required by
section 3001(b)(3)(C) of RCRA, finding that additional control of CKD
was warranted (60 FR 7366). The Agency stated that its concerns about
the potential harm to human health and the environment posed by some
CKD suggest the need for some level of regulation under RCRA Subtitle C
authority. The Agency also recognized that certain of these areas of
concern (those related to releases to surface waters) are more
appropriately controlled under other EPA-administered statutes. In
order to avoid unnecessary duplication among regulatory programs, EPA
stated it would rather use the other existing regulatory programs to
control risks where appropriate, and develop a more creative,
affordable, and common sense approach that would control the adverse
effects of CKD.
The Agency decided to develop, promulgate, and implement
regulations for CKD as necessary to protect human health and the
environment by using a variety of statutes. For surface waters, the
Agency believes that existing regulations and the planned general
permit under the National Pollutant Discharge Elimination System
(NPDES) permitting program provide an adequate mechanism for
controlling point source discharges and for managing storm water that
contains CKD. With respect to ground water, the Agency decided to use
its authority under RCRA Subtitle C provided by sections 2002(a),
3001(b)(3)(C), and 3004(x) to develop a program tailored to local
cement plant conditions to control specific risks. In the regulatory
determination, EPA also stated that it would develop and implement
additional controls under the Clean Air Act (CAA), as necessary to
address concerns relating to air emissions of CKD. Subsequently,
however, EPA has concluded that RCRA authorities will better serve that
purpose. EPA's reasons for changing its approach are discussed in
detail in Section VII. B. (Clean Air Act) below.
For most off-site beneficial uses of CKD (e.g., in waste
stabilization or certain construction uses), EPA's current record
indicates there are no significant risks. However, the Agency also
decided to evaluate the need for additional controls for a limited
number of off-site uses of CKD (such as use as a substitute for lime
fertilizer on agricultural fields) in its regulatory proposal. The
Agency stated that its focus would be restricted to those off-site uses
for which there may be significant risks.
EPA also stated in the regulatory determination that specific RCRA
Subtitle C components deserve particular scrutiny in developing a
tailored approach, including the following: facility-wide corrective
action under section 3004(u); land disposal restrictions requirements
(LDRs) under sections 3004(c),(d),(e),(f) and (g); minimum technology
standards under section 3004(o); and permit requirements under section
3005. EPA stated that most of the concerns traditionally addressed by
the land disposal restrictions program, permit requirements, and the
minimum technology standards would be best addressed through management
standards developed specifically for CKD.
2. Proposed Enforceable Agreement
On March 22, 1995, the U.S. cement industry, through the American
Portland Cement Alliance (APCA), submitted to the Agency a voluntary
management program for CKD. This program was based on earlier work APCA
submitted to EPA in 1993. Under this voluntary program, cement
[[Page 45635]]
manufacturing facilities would manage their CKD according to industry-
developed management standards, and EPA would enforce those standards
through a contract rather than through regulation. The proposed
agreement included provisions for compliance standards, facility waste
management plans, a public participation process, enforcement, and
penalties. The industry indicated that its intent was to provide the
Agency with a constructive alternative to Subtitle C regulation that
would not stigmatize CKD as hazardous waste.
The proposed enforceable contract represented a new approach and
raised a number of legal and technical issues which EPA evaluated. The
Agency also contacted various State agencies, industry groups, and
public citizen groups to assess their positions on the proposal.
Although EPA in the past has entered into unenforceable ``voluntary''
agreements with other industries, the Agency has determined that it
does not have inherent contract authority to enter into enforceable
agreements, although it has authority to enter into enforceable consent
orders under the imminent hazard provisions of RCRA section 7003, or
section 106 of the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (CERCLA). The cement industry chose not to
pursue enforceable agreements under these authorities because of
concern that it would be inappropriate to characterize CKD as posing an
imminent and substantial danger to human health and the environment.
3. The Need for CKD Management Standards
In the RTC, the Agency described the decision rationale used to
make its regulatory determination. The Agency applied a step-wise
approach that it considered to be consistent with Congressional intent
that EPA consider all of the study factors listed in RCRA section
8002(o). The methodology used by EPA examined the need for CKD
management standards and the economic consequences of imposing full
Subtitle C requirements on the industry. (See 60 FR 7366 for a
discussion of the steps EPA considered in determining the need for CKD
management standards.)
a. Documented Evidence of Damage
The Agency determined that the potential exists for hazardous
constituents, including metals, to migrate from CKD waste sites and
that CKD has caused documented impacts (and may continue to cause
impacts) at levels of concern. Information is available to indicate
that ground water has been affected by CKD management units. During the
development of the RTC, the Agency identified five cases of damage to
ground water, 10 cases of damage to surface water and 21 cases of
damage to air from CKD waste management units.\6\ Two additional cases
of ground water damage, two additional cases of surface water damage,
and 16 additional cases of air damage were subsequently identified in
the 1994 NODA and placed in the RCRA docket in a technical background
document entitled Additional Documented and Potential Damages From the
Management of Cement Kiln Dust (See 59 FR 47133, September 14,
1994).\7\ In its Regulatory Determination, EPA stated these cases
suggest that despite State regulations damages continued to occur with
current (i.e., as of 1994) CKD management practices.
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\6\ Based on subsequent review of the damage cases, except for
two reassessments (one air damage case and one surface water damage
case), the Agency believes the information received in comment does
not contradict the Agency's basic conclusions regarding any of the
damage cases identified in the RTC and subsequent NODA. A detailed
description of these damage cases is available in Chapter 5 of the
RTC.
\7\ RIC Docket Nos. F-94-RC2A-S0003 to S0015.
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Typically, ground-water damages were the result of metals
constituents leaching into ground water from unlined CKD landfills and
waste piles. Ground-water damages were of concern to the Agency because
relatively few (17% in 1991) of all CKD management units had ground-
water monitoring systems, while 25 of 91 cement manufacturing
facilities were reported in 1991 to be located within one mile of a
public drinking water well. Additionally, ground-water damage was a
major factor cited for including two CKD disposal units on the CERCLA
(Superfund) National Priorities List (NPL).
Damages to air were also identified due to particulate emissions of
CKD from quarries, haul roads, and CKD handling equipment. Most of
these cases involved visible emissions violations (opacity) related to
equipment malfunctions associated with CKD handling equipment (kilns,
baghouses, and screw conveyors). In the regulatory determination, EPA
characterized the air releases as persistent, with many facilities
having more than one violation. Also, significant releases of airborne
particulates were frequently observed first-hand by Agency staff during
the course of the RTC study.\8\
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\8\ A general description of these emissions can be found in the
EPA CKD sampling trip reports which are located in the support
section of the RIC docket on the Report to Congress.
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b. Potential Risks to Human Health and the Environment
The Agency conducted a series of risk screening and site-specific
risk modeling studies to evaluate potential risks from on-site
management and off-site uses of CKD. Methodologies and results of these
studies were documented in Chapter 6 of the RTC and its related
technical background documents and in two subsequent EPA technical
background documents entitled Human Health and Environmental Risk
Assessment in Support of the Regulatory Determination on Cement Kiln
Dust (August 31, 1994) and Supplemental Errata Document for the
Technical Background Document for the Notice of Data Availability on
Cement Kiln Dust (September 30, 1994).\9\
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\9\ These documents are available in the RIC docket (Nos. F-94-
RCKA-FFFFF, F-94-RC2A-S0019 and -S0019.A).
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EPA assessed the risks of potential releases of CKD contaminants to
the environment, both during the routine management of the dust at
cement plants and during beneficial use of the dust at other locations.
The risk assessment was intended to complement the damage case study,
which provided actual instances of environmental contamination,
sometimes attributable to management practices and facility settings
not considered in the risk assessment. The risk assessment was also
intended to cover the potential for certain more subtle or long-term
risks that might not be evidenced in the damage case files.
One of the primary objectives of the risk assessment was to
evaluate, as realistically as possible, the baseline risks of CKD
management practices at actual sites. This was accomplished by focusing
initially on a sample of case-study cement plants and off-site
beneficial use scenarios that appeared to provide a reasonable
representation of the universe of sites where CKD is disposed and used.
For each sample site, EPA evaluated the potential for CKD contaminants
to be released into the environment, migrate to possible human and
ecological receptors through a number of media and pathways (e.g.,
ground water contamination, surface water runoff to streams or lakes,
windblown dust) and result in exposures and adverse effects. This
evaluation included a combination of qualitative analyses designed to
document and describe major factors contributing to (or limiting)
risks, and quantitative modeling designed to
[[Page 45636]]
estimate the magnitude of risks. The analysis conducted for the RTC was
then expanded to incorporate significant new information collected
after the RTC was published. This expanded analysis, which is
documented in EPA's technical background document supporting the
Agency's 1995 Regulatory Determination enabled EPA to characterize risk
levels for each pathway at each plant for the facilities evaluated.
The Agency's analysis indicates that there are potential risks
warranting concern, from both current on-site waste management
practices and certain off-site beneficial uses. Based on these
analyses, EPA predicted only low or negligible risk potential from on-
site management of CKD via direct exposure pathways (e.g., ingestion of
drinking water) . The Agency did find potential risk to human health
via indirect (i.e., foodchain) exposure pathways, however. Potential
risks from exposure to particulate matter were also indicated.
The Agency modeled health risks via indirect food-chain pathways
(i.e., risks from ingestion of contaminated crops, livestock, or fish).
These contaminants reach food products via movement of stormwater run-
off and/or windblown dust from uncontrolled CKD storage or disposal
areas to nearby water bodies and farm fields. EPA's foodchain pathway
analysis estimated potential individual cancer risks from 1 x
10-5 (1 in 100,000) to 1 x 10-3 (1 in 1,000)
for highly exposed subsistence fishers and farmers. Cancer risks of
concern were due primarily to exposure to arsenic in CKD. Similar
cancer risk levels due to dioxins are also possible at some additional
sites. However, the Agency's data base on dioxin levels in CKD was not
extensive enough to conduct a large scale study. EPA's risk modeling
also estimated potential exceedances of non-cancer hazard thresholds
via indirect exposure to the toxic metals cadmium, chromium, thallium
and lead, which are present in CKD.
Finally, EPA's CKD analysis indicated potential human health risks
due to exposure to the fine particulate matter (PM) which characterizes
CKD. Based on the Agency's analysis, windblown dust (PM less than 10
microns in size) from uncontrolled CKD waste management units could
exceed EPA's health-based fine particulate National Ambient Air Quality
Standard (NAAQS) at plant boundaries and potentially at nearby
residences. Further analysis of potential exposure to airborne PM from
cement kiln dust waste management units was conducted as part of EPA's
population risk assessment. This analysis also indicates that persons
living around cement plants may be exposed to airborne PM
concentrations in excess of the NAAQS. An overview of the population
risk assessment is provided in Section II.C.4.a. of this preamble. A
detailed description of that analysis is provided in the technical
background document on population risk assessment.
As previously noted, the Agency predicted a negligible impact to
ground water and consequently low or negligible risk to human health
via ingestion of contaminated drinking water. However, a large
percentage of cement plants (and CKD management units at those cement
plants) are located in areas of karst terrain, 10 many of
which may be underlain by bedrock with hydrological characteristics
conducive to leachate transport to off-site locations with limited
filtration, adsorption, and dilution. For reasons discussed in the
regulatory determination, the Agency determined that its ground-water
model is not suitable for modeling in karst terrain. The Agency has
evidence of ground-water contamination at each facility where ground-
water data were available, and thus conducted additional analyses of
ground-water transport.
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\10\ Karst terrains are defined in this proposal at 40 CFR
259.16(b)(1) as areas where karst landscape, with its characteristic
hydrogeology and/or landforms are developed.
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The Agency conducted two additional ground-water analyses to
evaluate the potential for ground water transport at CKD management
facilities. In the first analysis, the Agency evaluated whether the
choice of ground water models significantly influenced the results. In
this analysis, the Agency used EPA's Composite Model for Leachate
Migration with Transformation Products (EPACMTP) with the same
parameters used in the modeling to support the Report to Congress. The
Agency concluded that the choice of models did not significantly
influence the conclusions on ground water transport. In the second
analysis, the Agency parameterized the thermodynamic isotherms to
reflect the major ions likely to be present in CKD and the typical pHs
found in CKD. Based on this analysis, the Agency concluded that the
composition of CKD leachate may make metals more mobile. These analyses
are discussed in Section II.C.4.b, Additional Ground Water Modeling.
The Agency's initial risk assessment for off-site beneficial uses
of CKD indicated that most off-site uses do not pose significant risks.
Direct cropland application, however, occurs at a number of locations
in the country. Screening level analyses of agricultural use described
in the RTC and NODA suggest that some CKD, at plausible application
rates, contains sufficiently high concentrations of metals and dioxins
to cause food chain risks. Based on these initial findings, EPA
conducted a more detailed analysis of potential risks from use of CKD
as an agricultural liming agent. A summary description of the
agricultural use analysis and results of that analysis are presented in
Section VI.--Standards for CKD Used as a Lime Substitute.
c. Waste Characteristics
While CKD itself does not exhibit the RCRA Subtitle C hazardous
waste characteristic of corrosivity (40 CFR 261.22), EPA's data show
that mixtures of CKD and water often exhibit the characteristic of
corrosivity. 11 In particular, EPA data show that the pH
level in run-off from precipitation that contacts CKD storage and waste
piles typically exceeds 12.5 standard units, the standard for the
corrosivity characteristic for hazardous wastes (40 CFR 261.22). In
addition, EPA's analyses of CKD show that CKD does contain certain
metals listed in Appendix VIII (``Hazardous Constituents'') Part 261 of
RCRA. For many of the toxic metals, the total concentrations in kiln
dust were not significantly different whether the dust was generated in
kilns that burn or do not burn hazardous waste. Likewise, in terms of
potential constituent solubility and release, leach test results show
that no significant distinction can be made between CKD generated from
kilns that burn hazardous waste and those that do not burn hazardous
waste.
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\11\ EPA hazardous waste identification rules do not include a
characteristic or definition for solid corrosives.
---------------------------------------------------------------------------
With respect to organics, volatile and semi-volatile compounds were
generally not found in CKD. However, levels of 2,3,7,8-substituted
dioxin, and 2,3,7,8-substituted dibenzofuran were detected, although
the concentrations were generally low. The calculated 2,3,7,8-
tetrachlorinated dibenzo-p-dioxins toxicity equivalence (TEQ) values
for the facilities sampled by EPA ranged from non-detected to 9 ppt.
d. Adequacy of Existing Regulations
In making its regulatory determination, EPA evaluated State and
Federal regulations pertaining to CKD waste and concluded that more
stringent regulation of CKD is necessary based on current regulatory
schemes. 12
[[Page 45637]]
The Agency also determined that current practices are inadequate to
limit contaminant releases and associated risks. CKD is now managed
primarily on-site in non-engineered landfills, piles, and ponds. Many
piles and landfills lack liners, leachate controls, or run-on/run-off
collection systems. In addition, while dust suppression measures exist
at many facilities, it appears that they are generally ineffective at
controlling airborne releases of CKD. The Agency believes the following
factors warrant additional environmental controls for CKD: (1) the
general lack of current regulations applicable to contaminant
discharges to ground water for protection of human health and the
environment; (2) the general lack of ground-water monitoring systems at
CKD disposal units; and (3) the existence of damages to ground water
and air that are persistent and continuous, and for which no
requirements exist to address the risks posed via these pathways.
---------------------------------------------------------------------------
\12\ Supporting documentation for this analysis can be found in
Chapter 7 of the RTC--Existing Regulatory Controls on CKD
Management.
---------------------------------------------------------------------------
4. New Analyses
a. Population Risk
Subsequent to the Regulatory Determination, the Agency calculated
population risks for individuals living in the vicinity of cement
manufacturing plants that manage CKD onsite. The assessment included
population risks from indirect, or foodchain, exposure pathways and
population effects from exposure to airborne particles, but not
potential population risks from beneficial use of CKD. This work builds
on earlier CKD analyses focusing on the health risks to maximally
exposed individuals, presented in the RTC on CKD and supporting
documentation, the 1994 NODA on CKD, and a background document
supporting the 1995 CKD Regulatory Determination. A detailed
description of the population risk assessment is provided in the
Technical Background Document: Population Risks from Indirect Exposure
Pathways, and Population Effects from Exposure to Airborne Particles
from Cement Kiln Dust Waste in the docket for this rule.
The assessment of population risks from indirect exposure estimates
the number of cancer cases and the number of people living near cement
plants that are potentially exposed above noncancer effect thresholds
through the ingestion of vegetables, beef and milk, and fish. For this
analysis, existing facility-specific individual risk estimates were
combined with facility-specific data on populations potentially exposed
via indirect pathways to derive facility-specific population risk
estimates. As a first step, information on individual risk generated
from a sample of 82 facilities was used to identify and eliminate from
concern those facilities that have negligible potential for significant
population risk. For remaining facilities, population risk for the
vegetable ingestion pathway was calculated by combining prior estimates
of individual risk with estimates of nearby farmers and backyard
gardeners based on census data. For the final step, results from the 82
facilities for which facility-specific information was available were
extrapolated to the total universe of 108 cement facilities. Population
risk for the fish ingestion pathway was estimated using existing
facility-specific individual risk estimates along with numbers of
recreational fishers that could be exposed, calculated based on fish
yield data from local streams. Facility-specific results were then
extrapolated to the full universe of cement plants to obtain total
population risk for this pathway.
The Agency estimates that exposures via indirect pathways occurring
in populations within five miles of all cement plants nationwide
potentially result in a total of 0.04 excess cancer cases over a 70-
year period. That is, exposures would potentially lead to about 0.009
excess cancer cases in the subsistence farmer population, and about
0.03 excess cancer cases in the ``homegrown'' population. Cancer cases
predicted for the recreational fisher population are negligible. The
total population within five miles of all cement facilities nationwide
is approximately 3.4 million.13 Thus, the overall population
cancer risk can be characterized as follows: a total of 0.0006 excess
cancer cases per year could potentially occur within this population of
3.4 million due to indirect exposures.
---------------------------------------------------------------------------
\13\ This is an estimate based on site-specific data for 61
facilities and extrapolated data for the remaining 47 facilities.
---------------------------------------------------------------------------
For population noncancer effects, EPA predicts that, across all
populations within five miles of all cement facilities nationwide, a
total of about 1,040 people are potentially exposed via indirect
exposure pathways to contaminant levels above the hazard index. That
is, about 6 individuals from the population exposed to contamination
from homegrown vegetables are exposed to contamination exceeding
noncancer effects thresholds (i.e., hazard index greater than 1). About
37 individuals from the subsistence farmer population and about 1,000
individuals from the recreational fisher population are estimated to be
exposed to contamination exceeding noncancer effects thresholds. The
overall population noncancer effects can be characterized as follows: a
total of about 1,040 people, or less than one-tenth of one percent,
from among the population of 3.4 million within five miles of all
cement plants nationwide is likely to be exposed via indirect exposure
pathways to contamination exceeding noncancer effects thresholds.
The assessment of population effects from exposure to airborne
particles estimates the number of people potentially exposed to
fugitive CKD at levels above the National Ambient Air Quality Standards
(NAAQS) for particulate matter (PM). Both the existing NAAQS for coarse
particles and a new NAAQS proposed for fine particles were considered.
New modeling of CKD emissions and downwind dispersion was performed for
selected ``high risk'' cement plants, substantially improving on the
previous work by using advanced modeling techniques, estimating
emissions from all CKD handling stages rather than just final disposal
as modeled previously, and considering the effect of terrain, among
other refinements. The concentrations of airborne particles were then
overlaid on census block grids to estimate populations potentially
exposed above the PM10 NAAQS. The Agency estimates that
about 18 people may be exposed to airborne PM10
concentrations in excess of the NAAQS around the 82 facilities for
which facility-specific information is available.14 As with
the indirect exposures analysis, EPA derived a more complete picture of
potential population effects due to PM exposures by extrapolating from
results within the known universe to determine the potential population
effects for the full universe of cement facilities. In sum, EPA
estimated that, across all 108 facilities, a total of between 18 and
4,118 people living within 500 meters of the facility boundary may be
exposed to airborne PM concentrations in excess of the NAAQS. It is not
known what percentage of the population exposed above the NAAQS is
likely to develop any morbid effects because the dose-response
relationship for PM exposures is not well defined.
---------------------------------------------------------------------------
\14\ The estimate of 393 people is based on an evaluation of 52
of the 82 cement facilities; based on analyses conducted previously
the remaining 30 facilities were determined to have zero or
negligible effects in terms of PM exposures because they do not
manage CKD on-site (see methodology and results presented in
Technical Background Document on Potential Risks of Cement Kiln Dust
in Support of the Cement Kiln Dust Regulatory Determination, January
31, 1995).
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[[Page 45638]]
b. Additional Ground-Water Modeling
Because the available damage cases indicate the potential for
impacts to ground water in areas of non-karst terrain (four of the 13
damage cases are located in areas of non-karst terrain), the Agency
conducted additional ground-water modeling to evaluate the potential
subsurface transport of metals in non-karst terrain. The additional
modeling occurred in two phases. In Phase I, the Agency tested the
sensitivity of the modeling by incorporating the same assumptions used
in the modeling to support the Report to Congress in EPACMTP, a ground-
water model used by EPA to conduct national assessments. The intent of
this exercise was to determine whether model selection significantly
influenced the conclusions regarding the subsurface transport of
constituents to receptor locations. In Phase II, the Agency evaluated
the sensitivity of EPACMTP to assumptions regarding the speciation and
adsorption of metals. In this analysis, the Agency revised the
isotherms generated by MINTEQA2, a geochemical speciation
model,15 to reflect higher pHs (as found in CKD leachate),
more appropriate ions in the leachate, and a lower dissolved organic
carbon concentration in the leachate.
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\15\ U.S. EPA, 1996a. Background Document for Metals. EPA
Composite Model for Leachate Migration with Transformation Products
(EPACMTP). Volume 1: Methodology. U.S. EPA, Office of Solid Waste,
Washington, DC 20460.
---------------------------------------------------------------------------
In Phase I of the additional ground-water modeling, EPA evaluated
the sensitivity of its previous model selection by estimating
constituent concentrations at well locations with EPA's regional
ground-water model, EPACMTP. The results from this analysis were then
compared with the results generated by the previous modeling, which
used MMSOILS. EPACMTP combines a finite source methodology with a
metal-specific procedure (using MINTEQA2) for handling geochemical
interactions that affect the subsurface fate and transport of metals. A
complete description of this methodology is available in EPA Composite
Model for Leachate Migration with Transformation Products: Background
Document for Metals, which has been placed in the RCRA docket in
support of this proposed rule.16 The analysis incorporated
the same data and assumptions used to support the ground-water modeling
for the EPA's 1993 Report to Congress.
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\16\ U.S. EPA, 1996b. EPA Composit Model for Leachate Migration
with Transformation Products (EPACMTP) Background Document. U.S.
EPA, Office of Solid Waste, Washington, DC 20460.
---------------------------------------------------------------------------
In general, the revised modeling using EPACMTP predicted lower
concentrations of metals in ground water for antimony, arsenic,
chromium, cadmium, and thallium and higher concentrations for barium
and beryllium. At all facilities, the risk from contaminated ground
water predicted by EPACMTP was negligible. Leaching of lead was
negligible in both modeling exercises (the MMSOILS model predicted that
lead would reach the water table at only one modeled facility). From
this analysis, the Agency concluded that the selection of ground-water
models was not the most significant reason for the inability of the
modeling to predict elevated metal concentrations in ground water.
In Phase II of the additional ground-water modeling, EPA evaluated
the sensitivity of the ground-water modeling results to changes in
assumptions regarding the speciation and adsorption of metals in CKD
leachate. Specifically, EPA revised the assumptions about pH, presence
of leachate organic acids, and ions present in CKD leachate to generate
new partitioning coefficients (Kds) for five metals: barium,
beryllium, cadmium, chromium, and lead. The Agency then used the same
modeling protocol for EPACMTP described above to evaluate the effects
on ground-water fate and transport of these five metals. A more
detailed description of the revisions to the MINTEQA2 isotherms and the
caveats associated with these analyses are available in the technical
support document Examination of Metals Transport under Highly Alkaline
Conditions, which has been submitted to the docket in support of this
proposed rule.
This additional analysis indicates that migration of the metals may
be sensitive to the pH of the leachate and the buffering capacity of
the unsaturated and saturated zones. Under highly alkaline conditions
with little or no buffering, cadmium, chromium, lead, barium, and
beryllium are predicted to be more mobile. In general, these metals
displayed a greater tendency to move through the unsaturated zone and
reach the ground water. For example, the analysis indicated that at
four of the five modeled facilities, elevated levels of barium,
beryllium, cadmium, chromium, and lead were found in the ground water
within 10 meters of the disposal unit. At four of the modeled
facilities, concentrations of lead exceeded EPA's action level for lead
of 0.015 mg/L within 10 meters and at one facility, chromium exceeded
its maximum concentration limit (MCL) of 0.1 mg/L by less than a factor
of 10. In addition, modeling indicated that beryllium, cadmium, and
chromium would have concentrations within a factor of 10 of their
respective MCLs at four facilities, one facility, and two facilities,
respectively.
c. New CKD Waste Characteristics Data
In an effort to further understand the influence of hazardous waste
burning on CKD composition, EPA has undertaken analyses of two new
sources of data on toxic metals in CKD. In June 1996, as part of a RCRA
Sec. 3007 data request, EPA collected information on constituent
concentrations in CKD from seven cement plants within Region VII that
burn hazardous waste, to the extent available for each of the five
years 1991 through 1995. In October 1996, new CKD constituent data from
15 cement plants that do not burn hazardous waste, collected during
July and August 1996, were submitted to the Agency by the Non-Hazwaste
Burner CKD Coalition (NHBCC).
The EPA Region VII data set consists of analytical results from a
substantial number of CKD samples, varying by plant, by constituent,
and by year from a few dozen to a few hundred per year. All of these
data reflect CKD generated by the seven plants while burning hazardous
waste. The NHBCC data set consists of analytical results from six to 32
CKD samples from each non-burning plant. Although both data sets have
their individual nuances, the Agency believes these data sets together
accurately reflect constituent values in CKD for both types of kilns,
and tend to complement one another. Both data sets are available in the
RCRA docket for this rule.
The NHBCC, Environmental Technology Council (ETC), and local
citizen groups have asserted to EPA staff that these new data
demonstrate statistically significant differences in the concentrations
of total metals between CKD from kilns that burn conventional fossil
fuels (``non-hazardous waste burner CKD'') and CKD from kilns that burn
RCRA hazardous waste (``hazardous waste burner CKD''). The NHBCC argues
that these differences affect the potential risk associated with the
disposal of CKD and that non-hazardous waste burner CKD exhibits only
isolated elevated concentrations of toxic constituents, hence
relatively low risk compared to hazardous waste burner CKD. As
explained in Section III.C. below, the NHBCC believes these differences
justify EPA imposing a regulatory distinction between hazardous waste
burner CKD and non-
[[Page 45639]]
hazardous waste burner CKD, a so-called ``two-dust approach.''
EPA has considered the NHBCC's assertion of statistical differences
between hazardous waste burner and non-hazardous waste burner CKD, but
at this point based on available data does not accept their assertion
of lower risk for non-hazardous waste burner CKD relative to hazardous
waste burner CKD for the following reasons. First, when hazardous waste
burner and non-hazardous waste burner CKD data sets are compared, for
some toxic metals the statistical distribution of concentrations in
each group significantly overlap. For example, for the constituent
arsenic, CKD from ten out of 15 non-hazardous waste burner plants have
mean total concentrations in excess of the mean concentration of
arsenic in hazardous waste burner CKD averaged from the seven hazardous
waste burning plants in EPA Region VII (1995 data); and CKD from seven
out of 15 non-hazardous waste burner plants have mean arsenic
concentrations higher than the mean concentration reported for
hazardous waste burner plants in the EPA NODA. Similarly, for chromium,
CKD from four out of 15 non-hazardous waste burner plants have mean
total concentrations in excess of the mean concentration for chromium
in hazardous waste burner CKD averaged from the seven hazardous waste
burning plants in EPA Region VII (1995 data). Because of this overlap,
EPA does not believe that all non-hazardous waste burner CKD poses less
potential hazard than hazardous waste burner CKD. Furthermore, a
comparison of means suggests constituent concentrations for all toxic
metals are within the range of data reported in the EPA NODA. EPA
believes that the new information supports the Agency's previous
conclusion that metals levels in CKD are not substantially different,
whether generated by kilns that burn hazardous waste or kilns that do
not burn hazardous waste.
Second, concentrations of the toxic constituent thallium in non-
hazardous waste burner CKD are consistently higher than in hazardous
waste burner CKD. The mean concentration for thallium in non-hazardous
waste burner CKD from the 15 NHBCC plants (180.5 mg/kg) 17
is over three times higher than the mean concentration for 31 non-
burning plants reported in the EPA NODA (52.3 mg/kg), and 47 times
higher than the mean concentration in hazardous waste burner CKD from
the seven EPA Region VII plants (3.8 mg/kg). The NHBCC has argued that
relatively higher concentrations of thallium in non-hazardous waste
burner CKD are not caused by fuels but by CKD recirculation and,
therefore, non-hazardous waste burner CKD should not be regulated
because this material is never disposed. The Agency believes
recirculation of CKD back into the cement manufacturing process is
beneficial because recirculated CKD would never be disposed. Forty-
seven out of 88 non-hazardous waste burner plants, however, reported
wasting CKD in 1995, so the Agency remains concerned that disposal of
CKD with elevated levels of thallium could still pose a potential
hazard to human health and the environment.
---------------------------------------------------------------------------
\17\ The highest thallium values in CKD reported from the 15
NHBCC plants are associated with cement kilns that recycle over 90%
of their CKD back into the manufacturing process.
---------------------------------------------------------------------------
Third, the NHBCC data have not addressed the cases of environmental
damage or PM10 risks that form the basis of the EPA's
Regulatory Determination. The Agency finds no basis for changing the
Regulatory Determination to regulate only CKD from hazardous waste
burning kilns. The damage cases resulted from on-site management of CKD
in non-engineered landfills, piles and ponds, at plants that largely do
not or did not burn RCRA hazardous wastes. In addition, CKD, regardless
of fuels burned, contains particles 10 microns in size and smaller, and
could potentially pose risks to human health if released through
fugitive emissions.
EPA requests additional data on hazardous waste burner and non-
hazardous waste burner CKD. If new information warrants such action,
the Agency would re-evaluate its current position on the appropriate
levels of control for hazardous waste burner and non-hazardous waste
burner CKD.
D. Beneficial Use of Cement Kiln Dust
It is likely that even with advances in recycling technologies,
some CKD will need to be removed from kiln systems. Because resources
are lost when CKD is permanently disposed, and because disposal
practices can be burdensome, finding alternative uses for waste CKD can
help facilities avoid disposal costs and generate additional revenue,
while at the same time reduce the amount disposed of in landfills.
Currently, CKD is used beneficially for sludge-, waste-, and soil-
stabilization, land reclamation, waste remediation, acid
neutralization, agricultural applications, such as a fertilizer or lime
substitute, and construction applications. 18 According to
responses from the 1991 Portland Cement Association (PCA) Survey and
RCRA section 3007 requests, about 780,000 metric tons (860,000 tons) of
CKD were used beneficially in 1990, or 5.4 percent of the gross CKD
generated in 1990, and about 19 percent of the net CKD generated for
that year. This total represents 9.5 percent of the 8.2 million metric
tons of CKD recycled directly back into the kiln or raw feed system in
1990. Of the 780,000 metric tons, about 71 percent (670,000 metric
tons) was used for waste stabilization, 12 percent (111,000 metric
tons) for soil amendment, 5.6 percent (53,000 metric tons) as liming
agent, nearly three percent (25,000 metric tons) as materials
additives, about one percent (11,000 metric tons) as road base, and
eight percent (76,000 metric tons) for other uses.
---------------------------------------------------------------------------
\18\ Bhatty, J.I., 1995, Alternative uses of Cement Kiln Dust.
Portland Cement Association Publication RP327, 18p.
---------------------------------------------------------------------------
The American Society for Testing and Materials (ASTM) standards
advise that use of CKD should be undertaken only after the material's
characteristics have been properly evaluated with respect to the
intended application. ASTM also recommends frequent performance testing
until the degree of variability has been established. 19 The
manner and extent of CKD adaptation for beneficial applications is in
constant flux as research and development of CKD use continue to grow.
---------------------------------------------------------------------------
\19\ ASTM, 1991. Standard Guide for Commercial Use of Lime Kiln
Dusts and Portland CKDs. 1990 Annual Book of American Society for
Testing and Materials Standards. Volume 11.04. Method Number D5050-
90. pp. 172-174.
---------------------------------------------------------------------------
Most current off-site uses, such as for waste stabilization or land
application as fill material, are either currently regulated (under
RCRA for hazardous waste stabilization, or under the Clean Water Act in
the case of municipal sewage sludge) or appear to present low risk due
to low exposure potential. As explained in the Regulatory
Determination, in light of the low exposure potential, EPA believes
that these uses constitute environmentally sound recycling and
beneficial use. Therefore, the Agency is not proposing management
standards for these beneficial uses of CKD or to list as a hazardous
waste CKD used for such practices. We are proposing that beneficially
used CKD is non-hazardous waste. Thus, with the exception of CKD used
for agricultural purposes, EPA solicits comments on these and other
potential uses that might constitute environmentally sound recycling or
beneficial use.
As explained previously, the Agency's risk assessment data on the
use of CKD as a lime substitute on agricultural fields indicates that
some small percentage of CKD (roughly 5%) may
[[Page 45640]]
present risk to human health and the environment and, therefore, the
agricultural use of CKD warrants controls. Accordingly, in today's
rule, EPA proposes to limit concentrations for arsenic, cadmium, lead,
thallium and chlorinated dibenzodioxins and dibenzofurans in CKD used
for agricultural purposes. If used for agricultural purposes, CKD with
concentrations of these substances in excess of today's proposed
limiting concentrations would be considered a listed hazardous waste.
III. Discussion of Options To Address Risks From Mismanaged CKD
Today's proposal presents several possible approaches, including
the Agency's preferred approach for addressing the hazards presented by
CKD. EPA invites commenters to address these approaches, so that EPA
can evaluate the Agency's preferred approach not only on its own merits
but also in comparison to these alternatives. If, when issuing the
final regulation for CKD, EPA were to rely on a Memorandum of
Understanding, regulation exclusively under Subtitle D of RCRA, the
State-based approach, and the Two-Dust approach presented below, the
Agency would have to revisit the Regulatory Determination.
The Agency would more favorably consider the State-based regulatory
approach or MOU if: (1) there were more evidence that cement
manufacturing facilities have made improvements to their CKD management
practices; (2) there was greater agreement among all stakeholders
regarding appropriate CKD management standards; (3) there was a strong
level of support from industry, States, and other stakeholders for
movement toward an MOU or State-based approach; and (4) the alternative
adequately considered the interests of other parties with a stake in
the Agency's CKD rulemaking. In making a final rule determination, EPA
may consider some combination of the alternative approaches discussed.
A. State-Based Approach
The American Portland Cement Alliance (APCA) has submitted a
proposal to EPA for a State-based approach to cement kiln dust (CKD)
management. The main components of APCA's proposed approach are listed
below, in chronological order:
(a) EPA Would Complete Work on CKD Management Standards. EPA would
complete internal work, already begun during discussions regarding
APCA's proposed enforceable agreement, which is discussed above in
Section III.A.--State-Based Approach, to refine the CKD management
standards for issuance as guidance as provided below.
(b) EPA Would Publish Proposed Guidance and ``Backstop'' Regulatory
Regime For Public Comment. APCA proposes that EPA would publish a
Notice of Data Availability in the Federal Register which would have
two separate components. The first component would describe and
summarize the key components of the CKD management standards, and
announce the public availability of a complete copy of the CKD
management standards. APCA proposes that in the Notice, the Agency
would announce its willingness to withdraw its earlier Regulatory
Determination if all of the States in which CKD is land disposed
developed an adequate CKD management program within two years. The
second component would be a ``backstop'' proposed rule based on a
``conditional exclusion'' or ``contingent management'' approach in
which RCRA Subtitle C authority would not be triggered unless the
conditions of the exclusion were violated. APCA proposes that EPA would
finalize the proposal only if one or more States in which CKD is land
disposed do not have an adequate CKD management program within two
years. EPA would solicit public comment on all aspects of the Notice.
(c) EPA Would Publish Final Guidance In Response To Public Comment.
APCA proposes that one year after publishing the initial guidance and
backstop proposal, EPA would publish its ``final'' guidance in a
subsequent Federal Register notice in response to public comments. In
this notice, EPA would also include an explicit time line for the
remaining steps in the State-based approach.
(d) EPA Would Take Final Action Regarding Inadequate State
Programs. Two years after publishing the initial proposed guidance and
backstop proposal, APCA proposes that EPA would publish another Federal
Register notice announcing its assessment of the adequacy of State CKD
management programs. APCA proposes that if EPA finds that such State
programs are adequate, the Agency would announce withdrawal of its 1995
Regulatory Determination. Conversely, if the Agency finds one or more
States with inadequate CKD programs, APCA proposes that EPA issue a
final rule that will be effective in those States. These regulations
would be based on a conditional exemption approach in which RCRA
Subtitle C authorities would not be invoked unless terms of the
exemption were violated. For those States with adequate programs, EPA
would withdraw its 1995 Regulatory Determination.
The technical standards in today's proposed rule reflect completed
internal work on appropriate CKD management standards and could serve
as the Notice that APCA suggests in (b) above. In our view, the Part
259 standards represent proposed final management standards for CKD
management, and the standards proposed today under Part 261 could form
a ``backstop rule.'' The Agency solicits comments on APCA's proposed
State-based regulatory approach for CKD management and on the details
of State programs affecting the management and beneficial use of CKD.
Both APCA's proposed CKD management standards that were submitted to
the Agency as part of the proposed enforceable agreement, and a full
description of APCA's State-based approach are available in the RIC in
support of this rule.20
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\20\ The cement industry's proposed management practices
(version 6/1/5), see RIC docket No. F-99-CKDP-S0031.
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B. Memorandum of Understanding
Another option considered by the Agency, in lieu of a detailed
regulatory scheme, would be to enter into a memorandum of understanding
(MOU) with the cement industry. As with enforceable agreements, a MOU
would include specific standards for the management of CKD. This
approach is not unprecedented.
In January 1994, EPA and the American Forest and Paper Association
(AF&PA) negotiated a MOU regarding the implementation of land
application agreements among AF&PA member pulp and paper mills and the
EPA.21 The purpose of the MOU was to develop a stewardship
program for the practice of land application of pulp and paper mill
sludges. Each paper mill participating in the program signed a ``Land
Application Agreement'' which established standards and land management
practices for the mill's land application of sludge. The MOU also
provided for annual materials monitoring reports to be submitted to
EPA, AF&PA member outreach programs, and annual AF&PA member surveys.
The individual ``Land Application Agreements'' specify, among other
things, dioxin/furan concentration limits for land applied sludge and
receiving soils, application rates, waste testing requirements, and
recordkeeping and reporting requirements. MOU and ``Land Application
Agreements'' do not
[[Page 45641]]
provide for enforcement, including citizen suits. Moreover, EPA, to
date, has not formally assessed the success of the Agreements.
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\21\ For a copy of the MOU, see RIC docket No. F-99-CKDP-S0107.
---------------------------------------------------------------------------
The Agency could consider a similar approach to tailored management
standards and for monitoring the management of CKD. The Agency solicits
comments on the advantages and disadvantages of a program utilizing
either an enforceable agreement, which is discussed above in Section
III.A.--State-Based Approach, or memorandum of understanding to
encourage environmentally-sound CKD management practices.
C. Two-Dust Approach
In meetings with EPA staff, the Non-Hazwaste Burner CKD Coalition
(NHBCC) has argued that any proposed regulatory mechanism for CKD,
should distinguish between CKD from kilns that burn conventional fossil
fuels (non-hazardous waste burner CKD) and CKD from kilns that burn
RCRA hazardous waste, both in oversight mechanisms and in the contents
of any minimum management practices. The NHBCC has argued that EPA
should reimpose the Bevill exclusion for non-hazardous waste burner
CKD, supplemented where necessary and justified by an appropriate
voluntary program or discretionary steps by the States. According to
the NHBCC, EPA should regulate hazardous waste burner CKD in the least
burdensome manner consistent with any relevant risks that the dust may
present.
The NHBCC has cited several points in support of a two-dust
approach. First, the NHBCC has argued that less stringent treatment for
non-hazardous waste burner CKD is justified on the basis of new CKD
waste characteristics data which shows low risk (see Section
II.C.4.c.--New Waste Characteristics Data, above). Second, the NHBCC
states that unit costs of managing stockpiled CKD would increase to
prohibitive levels for some member companies which are small businesses
as defined by the Small Business Administration. According to the
NHBCC, these small businesses do not have any additional revenue
streams, unlike cement facilities that burn RCRA hazardous wastes, to
offset the additional costs of CKD management. Third, the NHBCC has
expressed concern that Federal regulation of CKD under RCRA Subtitle C
will discourage beneficial re-use by stigmatizing CKD as a hazardous
waste. The NHBCC claims that such regulation would undermine public
confidence in CKD as a material suitable for reuse, discourage the
development of new markets for CKD waste, and force up compliance costs
by compelling facilities which currently sell CKD to stockpile it
instead. EPA solicits comment on the NHBCC's proposed two-dust approach
and requests additional data on hazardous waste burner and non-
hazardous waste burner CKD. If new information warrants such action,
the Agency would re-evaluate its current position on the appropriate
levels of control for hazardous waste burner and non-hazardous waste
burner CKD.
D. Develop Regulations Under Authority of Subtitle D
Another option would be to issue standards such as those described
in today's Notice solely as RCRA Subtitle D requirements, relying on
authority in RCRA section 4004(a). Under this approach the standards
would be enforceable by the public through citizen suits. EPA would
additionally encourage States to adopt standards developed under
Subtitle D as enforceable standards under State law, but the Agency
could not compel them to do so. Such standards would not be directly
enforceable by EPA under the enforcement authorities of sections 3007
and 3008. EPA could take enforcement action under section 7003, if
there is a finding of substantial endangerment. In contrast, the Agency
is today proposing a regulatory structure that would provide the
opportunity for Federal enforcement against major violations of the
proposed standards, where warranted (see Sec. 261.4(b)(8)(ii)(A)). The
Agency solicits comment on issuing today's proposed standards solely as
RCRA Subtitle D requirements and views on the need for Federal
enforcement of major violations of the proposed standards.
E. Subtitle C Enforcement Without Listing CKD
APCA has suggested that EPA could adequately regulate CKD not
managed in accordance with today's proposed Part 259 standards using
RCRA enforcement authorities without having to identify the mismanaged
CKD as a RCRA hazardous waste. APCA asserts that as long as EPA
specified that a violation of the Subtitle C backup standards in Part
266 constitutes a ``violation of the requirements of RCRA Subtitle C,''
then EPA and citizens could enforce against those violations under RCRA
sections 3008(a) and 7002(a) respectively. Similarly, APCA asserts that
EPA could enforce against violations under RCRA section 3008(d)(3)
criminal enforcement authority. APCA's approach is more specifically
set forth in a letter to EPA dated August 24, 1998, and is available in
the RIC docket for this rule. EPA invites comment on APCA's approach.
F. Tailored Standards Under Subtitle C
Another option available to the Agency is to regulate all CKD under
authority of Subtitle C, using the tailored standards proposed today
(i.e., the standards that would apply to CKD which, under today's
proposal, would become hazardous waste because it is being improperly
managed). Under this approach, all CKD would be listed hazardous waste
and would be regulated under the tailored standards proposed today in
Part 266 which incorporates the standards proposed today in Part 259.
The Agency solicits comment on the option of regulating all CKD
under authority of RCRA Subtitle C and whether certain provisions could
be eliminated or whether additional provisions are needed.
G. States Adopt Appropriate Programs
Alternatively, States may come forth with appropriate programs for
managing CKD. Such programs would have requirements similar to those
listed in Sections IV., V., and VI. of today's proposal, and include
standards for addressing risks posed by fugitive CKD, standards for
addressing risks to ground water, standards for agricultural use of
CKD, and requirements for monitoring, reporting, and corrective action.
The Agency believes there may be no need to finalize a Federal program
if States with cement facilities that dispose CKD adopt appropriate
programs and standards for managing CKD. The Agency solicits comment on
the option presented in this paragraph of States adopting appropriate
programs.
H. Today's Approach--Exclude Properly Managed CKD From Hazardous Waste
Listing
1. Develop Management Standards and Exempt Properly Managed CKD From
Classification as a Hazardous Waste (Management-based Listing)
Today's proposed rule would regulate CKD under RCRA to address the
concerns identified in the RTC while avoiding unnecessary requirements.
The approach taken is to establish management standards for CKD and
make it clear that all CKD managed in accordance with those standards
is not classified as a hazardous waste. CKD not managed in accordance
with the standards, on the other hand, is proposed to be listed as a
hazardous waste under 40 CFR 261.11.
The concept of regulating a waste if it fails to meet certain
standards forms the
[[Page 45642]]
basis of many RCRA regulations. To provide added flexibility for
implementation, EPA has previously proposed options for conditional
exemptions from Subtitle C regulation for certain refining
wastes,22 and promulgated conditional exemptions for non-
chemical military munitions.23 Today's proposed rule would
limit regulation of CKD under Subtitle C to that CKD which is
mismanaged.
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\22\ See 60 FR 57747, November 20, 1995, Hazardous Waste
Management System; Identification and Listing of Hazardous Waste;
Petroleum Refining process Wastes; Land Disposal Restrictions for
Newly Identified Wastes; and CERCLA Hazardous Substance Desigination
and Reportable Quantities.
\23\ See 62 FR 6621, February 12, 1997, Military Munitions Rule;
Hazardous Waste Identification and Management; Explosives
Emergencies; Manifest Exemption for Transport of Hazardous Waste on
Right-of-Ways and Contiguous Properties; Final Rule.
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The DC Circuit Court of Appeals has expressly upheld EPA's
authority under RCRA to establish a conditional exemption from Subtitle
C regulation for wastes that, absent the exemption, would be hazardous
(see Military Toxics Project v. EPA, 146 F. 3rd. 948, D.C. Cir. 1998).
For a more detailed discussion of EPA's authority to establish a
conditional exemption from Subtitle C regulation, see the discussion at
62 FR 6636-6637 of the Military Munitions Rule preamble.
Accordingly, EPA is today proposing to: (1) establish standards
that define proper management of CKD waste; (2) exempt from
classification as hazardous waste all CKD managed in accordance with
specific standards proposed today; (3) list mismanaged CKD as a
hazardous waste based on the criteria defined at 40 CFR 261.11(a)(3)(i-
xi); and (4) provide tailored standards under Subtitle C for the proper
management of CKD that has been mismanaged. The Agency's evaluation of
mismanaged CKD against the listing criteria in Sec. 261.11(a)(3) can be
found in Appendix I of this preamble, while the associated evaluation
of reportable quantities for releases of CKD can be found in Appendix
II of this preamble. Under the proposed approach, CKD would only become
hazardous waste subject to RCRA Subtitle C regulation when persons
managing the waste commit egregious or repeated violations, such as
failing to install controls designed to meet the performance standards,
or failing to manage CKD in units that conform to specific default
technology-based standards. CKD managed in accordance with today's
proposed standards would be outside the scope of Subtitle C, and would
not be considered hazardous waste. The Agency believes the CKD
management standards proposed today will protect the public from human
health risks and prevent environmental damage resulting from current
CKD disposal practices. The standards are designed to prevent
contamination of ground water and potable water supplies, and prevent
human health risks from inhalation of airborne CKD and ingestion via
food chain pathways.
In developing the proposed management standards for cement kiln
dust, EPA considered several factors. First, and primarily, the Agency
believes that subjecting waste CKD to the full RCRA Subtitle C program,
while protective, would be prohibitively burdensome on the cement
industry, and is not a feasible regulatory option under the factors
cited in RCRA section 8002(o). The full Subtitle C regulatory program
would be highly prescriptive and provides little tailoring for site
specific conditions. Second, the CKD management standards proposed
today are based on EPA's current knowledge of the cement industry and
the human health and environmental risks posed by CKD. The Agency
considers these technical standards to be sufficient to control the
specific risks identified while eliminating unnecessary compliance
costs. EPA believes that for CKD, imposing the additional requirements
of full Subtitle C would add significantly to compliance costs without
a reduction in risks (see the Regulatory Determination for CKD:
Potential Costs and Impacts of Subtitle C Regulation, 60 FR 7371,
February 7, 1995).24 Third, the Agency desires to encourage
the common industry practice of recycling of CKD waste back into the
industrial process, and promote environmentally sound off-site
beneficial use of this material. Most current off-site uses, such as
for waste stabilization or general construction, are either currently
regulated (under RCRA for hazardous waste stabilization, or under the
Clean Water Act in the case of municipal sewage sludge) or appear to
present low risk due to low exposure potential. Classifying all CKD as
hazardous could prevent such uses because of the expense resulting from
hazardous waste management requirements.
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\24\ Supporting documentation for these cost analyses can be
found in the Technical Background Document: Data and Analyses
Addressing the Costs of CKD Management Alternatives, RIC Docket Nos.
F-94-RC2A-S0018 and S0018.A),
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EPA emphasizes, however, that if persons mismanage CKD waste,
depending on the nature in which it is mismanaged, the non-compliant
waste may become subject to Subtitle C requirements which would include
enforcement action for violations of the proposed management standards
(see Section V. B.--Implementation of Part 259 and RCRA Subtitle C
Backup Standards). The Subtitle C requirements applicable to such CKD
would to some extent be tailored as appropriate to ensure proper
management of CKD. For example, the proposed Subtitle C design
requirements for CKD landfills are different from those under the
generally-applicable Subtitle C regulations. However, other generally-
applicable RCRA requirements would apply to persons managing listed CKD
as hazardous waste. In particular, persons managing listed CKD would be
required to obtain permits if they treat, store or dispose of hazardous
CKD, and to manifest shipments of hazardous CKD. Certain generally
applicable RCRA requirements would not be applied to hazardous CKD,
under the authority of section 3004(x) of RCRA. These include land
disposal restrictions, minimum technology requirements, and facility-
wide corrective action requirements.
2. Alternative Management-Based Listing
Another approach EPA considered would be to list as a hazardous
waste only CKD that is managed according to specific practices that are
known to pose significant risks to human health and the environment.
For example, the management of CKD in unlined landfills, under water or
in direct contact with the ground-water table, without fugitive dust
controls, or when used for agricultural purposes without proper
controls, is likely to pose significant risks to human health and the
environment. Under this approach, CKD mismanaged in these specified
ways would be listed as hazardous waste. One disadvantage to this
approach is that while it may prevent those poor management practices
identified by the Agency at this time, such a listing would require the
Agency to anticipate and identify all possible ways that CKD could be
mismanaged. The Agency requests comments on the advantages or
disadvantages of this approach over the approach proposed today,
including comment on additional mismanagement practices that should be
identified and considered if such an approach were adopted.
3. Characteristic CKD
CKD rarely exhibits a hazardous characteristic. Under the rule
proposed today, characteristic CKD would, in most cases, be regulated
in the same manner as other CKD. That is, it would be exempt from the
definition of
[[Page 45643]]
``hazardous waste'' so long as it is managed in accordance with the
specified standards; if not so managed, as described above, it would be
subject to tailored Subtitle C requirements. The sole exception to this
approach would be for CKD from kilns that burn hazardous waste as fuel,
which would be subject to full (not tailored) Subtitle C requirements
if it fails the two-part test in the Boiler and Industrial Furnace Rule
(a prime component being a comparison to hazardous characteristic
criteria for metals). This approach maintains in place the rules for
CKD from hazardous waste burners that exist currently under 40 CFR
266.112.
4. Apply Tailored RCRA Subtitle C Standards to Improperly Managed CKD
As described previously, CKD that has been determined to be
improperly managed and no longer a non-hazardous waste would be subject
to Subtitle C standards that are tailored to address the risks
presented by CKD. The management standards applicable to such CKD would
be promulgated under EPA's general authority for setting management
requirements for hazardous waste under sections 2002(a)(1), 3002, 3003,
and 3004 of RCRA.
Subtitle C requirements that apply to hazardous waste generally,
and are not expressly modified in these tailored standards, would apply
to CKD or facilities managing CKD. For example, if a person managing
CKD waste disposes of non-exempt CKD onsite, she or he would be
required to obtain a RCRA permit. However, EPA has authority under
section 3004(x) of RCRA to alter certain statutory requirements that
would otherwise apply to all hazardous waste facilities, for wastes
previously subject to the Bevill exclusion and newly being brought
under Subtitle C regulation. In particular, EPA has authority to modify
requirements relating to land disposal restrictions, minimum technology
for landfill design, and facility-wide corrective action. EPA would
rely on this authority to exempt CKD from land disposal restrictions,
minimum technology requirements, and facility-wide corrective action
requirements as we are proposing today. A more detailed discussion of
the reasons for this approach under section section 3004(x) can be
found in Section V.A.1.-3004(x)--Special Characteristics.
IV. Proposed Management Standards
A key element of the regulatory system for CKD described above is
the standards to be established for CKD management. As discussed above,
as long as CKD is managed according to these standards, it would remain
a non-hazardous waste. Furthermore, compliance with these standards
would be required under the tailored RCRA Subtitle C requirements
applicable to any CKD that is mismanaged.
Because these standards are a condition for maintaining non-
hazardous status, EPA proposes to promulgate them at 40 CFR Part 259,
separate from the regulations governing hazardous waste. The tailored
RCRA Subtitle C regulations for hazardous CKD waste are proposed to be
promulgated in 40 CFR Part 266; those regulations will incorporate the
Part 259 proposed standards by reference, in addition to identifying
the other Subtitle C requirements applicable to hazardous CKD.
A. Protection of Ground-Water Resources
1. The Need for Ground-Water Protection Standards
As tabulated in the background document for today's proposed rule
titled Technical Background Document on Ground Water Controls at CKD
Landfills, EPA has identified 13 cases of ground water damage resulting
from the migration of potentially hazardous constituents, including
metals, from waste CKD.25 These damages reflect CKD
management practices from 1980 to 1995 at cement facilities across the
United States. While the Agency acknowledges that CKD management
practices may have changed at individual cement manufacturing sites,
EPA believes certain practices which have led to damages to ground and
surface waters have not stopped and occur today at other cement
manufacturing facilities nation-wide.
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\25\ Detailed writeups for each of the 13 ground-water damage
cases can be found in Chapter 5 of the RTC, the Technical Background
Document:Additional Documented and Potential Damages from the
Management of Cement Kiln Dust (F-94-RC1A-S0003 to S0015); and the
Technical Background Document. Additional Documented Damages to
Ground Water From the Management of cement Kiln Dust, which has been
placed in the RIC docket in support of this proposed rule.
---------------------------------------------------------------------------
The Agency considers damage to mean that metal constituents have
contaminated ground water and/or surface water above a Federal or State
standard (e.g., a maximum concentration limit). Constituents of concern
from CKD that have been released to ground and surface waters include
arsenic, chromium, and lead, among others. When ground-water
exceedances do occur, the magnitude of the exceedance is usually within
two orders of magnitude of the standard. Environmental damage generally
affects the area in the immediate vicinity of the waste disposal site.
Environmental damage has been identified both at facilities that burn
and those that do not burn RCRA hazardous wastes.
As documented in Table 2-1 of the technical background document on
ground water controls, the Agency finds that many factors have
contributed to causing the release of CKD constituents to ground water
or the subsurface environment at these damage case sites. Factors which
are noted to have contributed to the release of CKD constituents into
the sub-surface environment include: (1) CKD disposal below the natural
water table or ground-water infiltration into the waste unit; (2) the
lack of a bottom liner or leachate collection system, or both, to
control leakage from the waste unit; (3) surface run-off or erosion
transporting CKD constituents to surface water bodies and/or wetlands
which can serve as a source of ground-water recharge; (4) the lack of
an impermeable cover to control percolation of rain water and/or
surface water run-off into the waste unit; and (5) the presence of a
shallow ground-water flow system with conduit flow characteristics
(e.g., karst aquifer or fractured bedrock aquifer). Notably, all of the
damage cases are associated with CKD waste disposal units which did not
have bottom liners, leachate collection systems, or impermeable covers
in place during the active disposal period.
The cement industry, because it uses limestone, has a relatively
high percentage of CKD disposal sites located in potential karst areas
that is unique compared to other industries the EPA regulates. The
Agency estimates that 78 out of 110 plants are underlain by limestone
formations in areas of potential karst terrain. Based on additional
analysis performed in support of today's proposed rule which is
documented in the technical background document on ground water
controls, the Agency has increased the estimate of the percentage of
cement plant sites located in potential karst areas from about half to
71%.
The Agency believes these limestone formations may have conduits
with hydraulic characteristics that potentially allow leachate to
rapidly enter ground-water aquifers directly without substantial
dilution or attenuation. As documented in the technical report
supporting this rule titled Cement Kiln Dust Migration Pathway,
modeling results for one CKD disposal site (Facility A) did not predict
breakthrough of contaminants into the ground-water table within 130
years, even under highly alkaline conditions. Ground-water and surface
water
[[Page 45644]]
releases, however, which are described in the technical background
document for this proposed rule titled Additional Documented Damages to
Ground Water From the Management of Cement Kiln Dust, occurred at the
same site in 1995, within 30 years of first receipt of waste. The
faster ground-water migration time can be attributed to fractures in
the limestone and an upper perched water table. These factors were not
accounted for in the Agency's model, which assumed laminar ground-water
flow in a homogenous granular bedrock. Nor did the Agency's model
account for placement of CKD in direct contact with ground water.
Nine of the 13 cases of groundwater damage identified occurred at
facilities located in karst terrain. The Agency believes the
identification of additional documented damage cases further supports
the qualification, noted in the 1995 Regulatory Determination, that
available ground-water pathway modeling techniques are not applicable
in areas of karst terrain. For example, in two documented damage cases,
excessive discharges of CKD-contaminated waters can be attributed to
ground-water flow through fractured bedrock. In another case, CKD
disposal in caverns has resulted in the discharge of contaminated
ground water into a nearby surface stream. This does not necessarily
mean that ground-water contamination will occur at all such cement
plants; however, it should be regarded as a significant qualification
to the general findings in the RTC of low or negligible risk from the
ground-water pathway risk modeling results. Also, as noted in Section
II.C.4.b--Additional Ground-water Modeling, the conclusions on ground
water modeling should be qualified by the additional analysis conducted
by the Agency. In this analysis, the Agency concluded that the typical
ions in CKD and the highly alkaline nature of the leachate are likely
to mobilize metals, including lead, chromium, and beryllium, at levels
greater than previously predicted. In addition to ground-water
contamination, contamination of surface water and/or wetlands was also
identified as being a concern at twelve of these damage case sites.
At many of these sites, environmental damages are persistent and
continuing. The identification by the Agency of six additional cases of
damage since the 1995 Regulatory Determination indicates that damage to
ground-water resources near CKD disposal sites may be more common than
originally thought in 1995. EPA's latest information indicates that
remedial measures have been initiated at only seven of the ground-water
damage case sites, such as removal of contaminated materials,
installation of an impermeable cap, and/or construction of a seep/
ground-water extraction and treatment system. In two cases, ground-
water contamination has been found that corroborates the surface water
damage cases which were reported in the 1993 RTC and associated NODA.
This suggests that, at these CKD disposal sites, releases of
contaminated water are pervasive. Many of these sites have been slow to
implement remedial measures to control off-site migration of
contaminants.
The Agency further believes ground-water controls are warranted
because of the matrix in which constituents of concern are bound. As
mentioned in Section II.C.4.b. (Additional Ground-water Modeling) of
this proposal, more recent modeling of the highly alkaline conditions
shows that, in general, these conditions increase the likelihood that
some constituents of concern, including lead, chromium, and cadmium,
may be more mobile than previously demonstrated. Specifically, the
Agency has noticed enhanced transport and breakthrough to the water
table for these metals. These new ground-water modeling results support
the findings of increased leachability of toxic metals, as observed in
the damage cases. As reported in the RTC, the highly alkaline nature of
CKD-water mixtures is evident in TCLP results, which commonly show a
resultant pH greater than 10 standard units, even after adding acid.
Current waste management practices appear to be inadequate to limit
releases of at least some metal contaminants. According to a survey by
APCA of 1995 CKD waste management practices, 65% of all respondents
indicated that their landfills had liners, but only one respondent
(1.5%) used a synthetic liner. Over 60% of respondents considered
bedrock or native clay or shale materials to be liners. In 1990, only
17% of all CKD management units nation-wide had ground-water monitoring
systems. The American Portland Cement Alliance reports that in 1995, 33
out of 94 cement manufacturing facilities had ``ground-water monitoring
systems.'' EPA, however, could not verify whether the monitoring
systems were capable of characterizing ground water beneath the active
CKD management unit(s). EPA believes that a substantial portion of the
cement industry relies on inadequate measures to control the release of
contaminants to ground water, and that these practices have not changed
substantially or have only marginally improved over the past several
years.
Finally, as stated in the 1995 Regulatory Determination, the Agency
believes there are no current Federal ground-water protection standards
that are adequate to address the risks posed by CKD via the ground-
water pathway. The Safe Drinking Water Act (42 U.S.C. 300 f-j) protects
drinking water by setting maximum concentration limits (MCLs) for toxic
contaminants, including metals. However, drinking water standards are
only protective at the point of consumption. Public water supply wells,
however, are protected through the wellhead protection program under
the SDWA (41 U.S.C. 300h-7(e)).
2. Applicability
EPA is concerned that today's proposal might create an incentive
for persons managing CKD waste to create unneeded ``units'' or
unnecessarily large units prior to the effective date of the final rule
so that such units would be deemed ``existing units'' and not be
subject to certain requirements of today's proposed rule. To address
this concern, today's proposed definition of ``existing unit''
specifies that expansions would have to be consistent with past
operating practices, or operating practices modified to ensure good
management. The Agency believes this added provision ensures that
persons managing CKD waste will not create new units or unnecessarily
enlarge their existing units to avoid compliance with portions of
today's proposed rule, but at the same time, accounts for legitimate
landfill enlargements or changes in facility operations resulting from
additional waste volumes. EPA solicits comment on whether today's
proposed regulatory distinction between lateral and vertical expansions
would encourage owners and operators to expand existing landfills
laterally prior to the effective date of the final rule to avoid
meeting the requirements applicable to new units. EPA is proposing
ground-water protection standards for all new and existing CKD waste
landfill units, except units closed prior to the effective date of the
rule. Today's proposed performance and technology-based standards would
apply to new units, and any expansion of an existing CKD landfill unit,
defined as any lateral expansion of the waste boundary of an existing
landfill unit. Any lateral expansion would be considered a new unit and
must meet the requirements applicable to new units. In contrast, any
vertical expansion of an existing unit would be considered part of the
existing unit and subject only to those requirements applicable to
existing units. Under this
[[Page 45645]]
proposed definition, any new area of any existing unit that receives
waste after the effective date of this rule is an expansion. All new
and existing CKD landfill units (i.e., the existing landfill plus any
expansion) must comply with ground-water monitoring and corrective
action requirements proposed in today's rule.
With regard to surface impoundments, the Agency has found few
facilities that engage in this CKD management practice. EPA solicits
comment on whether wet handling of CKD in surface impoundments can be
conducted in a manner that meets the performance standards contained in
today's proposed rule. EPA continues to take the position that
placement of CKD in a surface impoundment that is in direct contact
with the ground-water table would not be protective of human health and
the environment.
3. Location Standards
One set of standards for ground-water protection relates to
facility location. EPA has identified locations that require special
restrictions and may influence the location of landfills: sites below
the natural water table, floodplains, wetlands, fault areas, seismic
impact zones and unstable areas, particularly unstable areas in karst
terrain. For other wastes, such as municipal solid wastes, the Agency
has viewed these locations as needing special protection (see 53 FR
33314, August 30, 1988). Accordingly, EPA is proposing to impose
location standards for CKD disposal sites to ensure protectiveness in
the areas described above. With one exception which prohibits CKD
disposal below the natural water table, the Agency is not proposing an
absolute prohibition against siting CKD landfills at these locations;
however, persons managing CKD waste would have to make a showing to the
EPA Regional Administrator (or the State, in authorized States), on a
case-by-case basis that their design is protective in these
environments.
a. Disposal Below the Natural Water Table
Today's proposed rule includes a ban on management of CKD in new
units located below the natural water table. The natural water table is
defined as the natural level at which water stands in a shallow ground-
water well open along its length and penetrating the surficial deposits
just deeply enough to encounter standing water at the bottom. This
level is uninfluenced by ground-water pumping or other engineered
activities.
EPA believes that this stringent restriction is necessary to
protect human health and the environment because of the potential
damage caused by management of CKD at sites located below the natural
water table. The Report to Congress, subsequent Regulatory
Determination, and background documents to this proposed rule all
describe damages to ground water and surface water resulting from
management of CKD at sites (e.g., quarries) that subsequently filled
with water after abandonment. As mentioned above, two of these sites
were once listed on the NPL. In the Regulatory Determination, the
Agency also identified surface water damages resulting from problems
with run-on and run-off, but deferred to its authorities under the
Clean Water Act to control surface water problems.
b. Floodplains
EPA is proposing that new and existing CKD landfill units may not
be located in a 100-year floodplain unless a demonstration is made to
the EPA Regional Administrator (or the State, in authorized States),
that the landfill has been designed so that it does not restrict flow
of the 100-year flood, reduce the temporary water storage capacity of
the floodplain, or result in the washout of solid waste so as to pose a
hazard to human health and the environment. The Agency's rationale
today is consistent with the similar rule regarding municipal solid
waste landfill units (MSWLFs) (see 53 FR 33314, August 30, 1988).
Specifically, floodplains may be adversely impacted by the disposal of
solid waste through potential flooding damages including: (1) Rapid
transport of hazardous constituents by flood water resulting in
degradation of water quality downstream; (2) restriction of flood water
flow, causing greater flooding upstream; and (3) reduction of the
storage capacity of the floodplain, which may cause more rapid movement
of flood water downstream, resulting in higher flood levels and greater
flood damages downstream.
Today's proposal would require that new and existing CKD landfill
units located in a 100-year floodplain be designed and operated to
prevent the adverse effects described above. The intent of today's
proposed rule is to require that CKD landfill units not cause
significant impacts on the flow and water storage capacity of a
floodplain experiencing a 100-year flood. Site-specific information
should be used to evaluate whether a facility has met this standard.
Today's proposal defines the floodplain using the 100-year flood
level.26 This criterion would limit the chance for site
inundation and resulting damages. The intent of this criterion is: (1)
To require an assessment of any new or existing CKD disposal site or
expansion of any existing site in a floodplain to determine the
potential impact of the disposal site on downstream and upstream waters
and land; (2) to prohibit such disposal activities if the site, as
designed, may cause increased flooding during the 100-year flood; and
(3) to require, if the disposal site is located in a floodplain, the
use of available technologies and methods to protect against inundation
by the base flood, and minimize the potential for adverse effects on
water quality and on the flood-flow capacity of the floodplain.
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\26\ To determine whether a CKD landfill unit is in the 100-year
floodplain persons managing CKD waste should use flood insurance
rate maps (FIRMS) developed by the Federal Emergency Management
Agency.
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c. Wetlands
Today's proposal provides that no new CKD landfill unit may be
placed in wetlands,27 unless the person managing CKD waste
makes a specific demonstration to the EPA Regional Administrator (or
the State, in authorized States), that the new unit: (1) will not
result in ``significant degradation'' of the wetland as defined in the
Clean Water Act section 404(b)(1) guidelines, published at 40 CFR Part
230; and (2) will meet other requirements derived from the section
404(b)(1) guidelines. Existing disposal units, including vertical
expansions that are located in wetlands would continue to operate.
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\27\ For purposes of this section, wetlands means those areas
defined by 40 CFR 232.2(r): ``* * * areas that are inundated or
saturated by surface or ground water at a frequency and duration
sufficient to support, and that under normal circumstances do
support, a prevalence of vegetation typically adapted for life in
saturated soil conditions. Wetlands generally include swamps,
marshes, bogs, and similar areas.''
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EPA believes that these restrictions are necessary to protect human
health and the environment because of the special environmental
significance of wetlands and the potential damage caused from siting
CKD landfill units in wetlands. The 1993 Report to Congress and
associated background documents describe the environmental damage that
results by siting CKD landfill units adjacent to wetlands. One case
study describes releases of toxic metals in excess of State standards
for warmwater wildlife habitats, which potentially could damage the
ecological integrity of wetlands adjacent to the CKD disposal site.
Another case study describes
[[Page 45646]]
environmental releases of toxic metals into the nearshore waters of
Lake Huron, which have filled in emergent wetlands and damaged
sensitive aquatic habitats. Today's proposed rule would minimize
wetland degradation by new CKD landfill units and expansions by
allowing siting in wetlands only in cases where protective unit design
has been demonstrated.
Today's proposed rule adopts four major requirements: (1) A
practical alternatives test (Sec. 230.10(a)); (2) the assessment of
compliance with other applicable laws (Sec. 230.10(b)); (3) the
assessment of aquatic degradation (Sec. 230.10(c)); and (4) the
assessment of steps taken to minimize the adverse effects of discharge
(Sec. 230.10(d)). These requirements parallel those in the guidelines
for wetlands protection under section 404(b)(1) of the Clean Water Act.
The guiding principle is that discharges should not be allowed unless
the persons managing CKD waste can demonstrate that such discharges are
unavoidable and will not cause or contribute to significant degradation
of wetlands.
Accordingly, to satisfy the four requirements mentioned above,
before a CKD landfill unit may be sited in a wetland the persons
managing CKD waste must make the following five demonstrations to the
Regional Administrator (or the State in authorized States). First,
alternative sites for the proposed landfill which are located outside
of wetlands must be considered. An alternative site is defined as one
which does not involve wetlands. For a person managing CKD waste to
site a CKD landfill in a wetland, he must clearly rebut the presumption
that a practical alternative is available. Second, a demonstration must
be made that siting in a wetland does not violate any of the provisions
of the following applicable laws: (1) Any applicable State water
quality standard; (2) any applicable toxic effluent standard under
section 307 of the Clean Water Act; (3) the Endangered Species Act of
1973; and (4) the Marine Protection, Research, and Sanctuaries Act of
1972. Third, a demonstration must be made that siting the landfill in a
wetland will not cause or contribute to significant degradation of
wetlands. Fourth, if siting in a wetland is still considered after the
first three demonstrations discussed above, then an additional
demonstration must be made that appropriate and practical steps have
been taken to minimize the potential for adverse effects of the
landfill on wetlands. Finally, it must be shown that sufficient
information is available for making reasonable determinations with
respect to these demonstrations; otherwise, the person managing CKD
waste cannot make the demonstrations necessary to qualify for the
waiver to the ban. In today's proposed rule, EPA has not set a
structure or time frame for approval by the EPA Regional Administrator
(or the State in authorized States), in order to give the regulatory
authority maximum flexibility in setting schedules.
Today's proposed rule addresses only RCRA requirements. Nothing in
today's proposed rule affects any requirements that facilities may have
to comply with under other programs, such as section 404 of the Clean
Water Act which affects disposal in wetlands.
d. Fault Areas
EPA proposes today that no new CKD landfill units may be sited
within 60 meters (200 feet) of a fault that has had displacement in
Holocene time, unless a demonstration is made to the EPA Regional
Administrator (or the State, in authorized States), that an alternative
setback distance of less than 60 meters will prevent damage to the
structural integrity of the CKD landfill unit, and will be protective
of human health and the environment. The Holocene is the most recent
epoch of the Quaternary Period, a period of geologic time that extends
from the end of the Pleistocene Epoch to the present and includes
approximately the last 10,000 years. Regional geologic maps of Holocene
age faults are published by the U.S. Geological Survey. EPA believes
that motion along faults may adversely affect the structural integrity
of CKD landfill units, and that a 60-meter buffer zone is necessary to
protect engineered structures from seismic damages.28
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\28\ A fault is defined as a fracture or a zone of fractures in
any material along which strata on one side has been displeased
relative to strata on the other side. See United States Geological
Survey, 1978, Preliminary Young Fault Maps, Miscellaneous Field
Investigation (MF) 916.
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Earthquakes present a threat to public safety and welfare in a
significant portion of the United States. Damage and loss of life in
earthquakes occur as a result of surface displacement along faults and
ground motion, as well as secondary effects of the shaking such as
ground or soil failure. Faults also present concerns relating to
failure of containment structures for CKD landfills. Today's proposed
standard is designed to protect CKD landfill units from deformation
(i.e., bending and warping of the earth's surface) and displacement
(i.e., the relative movement of any two sides of a fault measured in
any direction) of the earth's surface that occur when a fault moves.
Available information collected in support of the MSWLF rule
suggests that structural damage resulting from earthquakes is most
severe for structures located within 60 meters of the fault trace, and
decreases with increasing distance away from the fault. However, EPA
believes that for some geologic formations the 60 meter setback
distance may be overprotective. Therefore, the Agency has allowed in
today's proposed rule the opportunity for demonstrations to be made to
the EPA Regional Administrator (or the State, in authorized States),
that an alternative setback distance of less than 60 meters will
prevent damage to the structural integrity of the CKD landfill unit.
The Agency requests comment on both the general concept of a location
restriction based on fault areas and the specific 60-meter setback
requirement.
e. Seismic Impact Zones
Today's proposal would require that any new CKD landfill unit
located in a seismic impact zone be designed to resist the maximum
horizontal acceleration in lithified material for the site. The design
features affected include all containment structures (i.e., liners,
leachate collection systems, and surface water control systems).
Seismic impact zones are defined as areas having a ten percent or
greater probability that the maximum expected horizontal acceleration
in lithified material for the site, expressed as a percentage of the
Earth's gravitational pull (g), will exceed 0.10g (i.e., 98.0
centimeters per second per second) in 250 years. The term ``lithified
material'' refers to any consolidated or coherent, relatively hard,
naturally occurring aggregate composed of one or more minerals (e.g.,
granite, shale, marble, sandstone, limestone, etc.). This definition
explicitly excludes loose, incoherent masses such as soils or regolith,
and man-made materials such as fill, concrete or asphalt. EPA's
rationale today is consistent with the similar rule regulating MSWLFs,
and the Agency solicits comment regarding whether it is appropriate to
use the same approach for CKDLFs.
EPA believes that the adverse impact of siting CKD landfill units
in seismic areas justifies the need for a comprehensive standard to
prevent releases from these facilities. Types of failure that may
result from ground motion are: (1) Failure of structures from ground
shaking; (2) failure of containment structures due to soil
liquefaction, liquefaction-induced settlement and landsliding, and soil
slope failure in foundations and embankments; and (3) landsliding and
[[Page 45647]]
collapse of surrounding structures.29 The background
document supporting this section of the rule provides examples of the
potential adverse effects on CKD landfill units that may occur in
seismic impact zones. The Agency believes that these failures may
result in contamination of air, ground water, surface water and soil.
Therefore, in order to protect human health and the environment, all
containment structures must be designed to withstand the stresses
created by peak ground acceleration at the site from the maximum
earthquake based on regional studies and site-specific
analyses.30
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\29\ See Livermore Associated Research Group, Inc. 1982. Seismic
Location Standards. Prepared for U.S. Environmental Protection
Agency, Office of Solid Waste, Washington, D.C.
\30\ To determine whether a CKD landfill unit is in a seismic
zone, persons managing CKD waste should look at maps depiciting the
potential seismic activity across the United States that have been
prepared by the United States Geological Survey (Open File Report
82-1033).
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The process designing earthquake-resistant components may be
divided into three steps: (1) Determining expected peak ground
acceleration at the site due to a maximum quake, based on regional
studies and site-specific seismic risk analysis; (2) determining site-
specific seismic hazards (e.g., soil liquefaction); and (3) designing
the facility to withstand peak ground accelerations. Various methods
for accomplishing the above tasks appropriate to individual CKD
landfill units should be selected by the person managing CKD waste,
subject to regulatory agency approval.
f. Unstable Areas
EPA is also proposing that persons managing CKD waste in new and
existing CKD landfill units located in unstable areas must demonstrate
the structural integrity of the unit to the EPA Regional Administrator
(or the State, in authorized States). This demonstration must show that
engineering measures have been incorporated into the unit's design to
mitigate the potential adverse structural impacts on the structural
components of the unit that may result from subsidence, slope failure,
or other mass movements in unstable areas. For purposes of this
section, structural components include liners, leachate collection
systems, and final covers.
EPA is particularly concerned with CKD landfill units located in
areas of karst terrain. For purposes of this section, karst terrain
means an area where karst landscape, with its characteristic
hydrogeology and/or landforms is developed. In karst terrain, ground-
water flow generally occurs through an open system with both diffuse
and conduit flow end member components, and typically has rapid ground-
water flow velocities which exceed Darcian flow
velocities.31 Composed of limestone, dolomite, gypsum and
other soluble rock, karst terrain typically has well developed
secondary porosity enhanced by dissolution. Landforms found in karst
terrain include, but are not limited to, sinkholes, sinking streams,
caves, springs and blind valleys. Karst terrains always include one or
more springs for each ground-water basin, and underground streams
except where ground-water flow is diffuse or the host rock has
megaporosity.
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\31\ Darcian flow means ground-water flow which follows Darcy's
law, where the specific discharge is proportional to the hydraulic
gradient. Darcian ground-water flow is typically linear and laminar,
travels from 1 x 10-11 to 1 x 102
centimeters per second, and is characteristic of ground-water flow
through granular porous media.
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The regulatory definition of karst terrain in today's proposal
expands beyond the obvious landform features typically associated with
mature karst topography (e.g., sinkholes and caves). Not all waste
disposal sites overlying carbonate aquifers exhibit mature features of
well-developed karst, but, nevertheless, may overlie karst aquifers
with well developed conduit systems in which turbulent flow regimes
dominate. Karst systems are commonly mantled by thick regolith, or
partially covered by caprock which may exhibit a topography that is not
characteristic of a traditional karst setting. If the regulatory
definition of karst relies solely on apparent karst landform features,
persons managing CKD waste at facilities situated in karst settings
with no apparent on-site karst features could claim that their
facilities are not in karst terrain and, therefore, do not overlie a
karst aquifer. EPA solicits comment on today's proposed definition of
karst terrain and the proposed approach for identifying karst hydrology
within and around facility property.
The fundamental hydrologic difference between karst and non-karst
terrain is ground-water flow velocity in excess of velocities that are
typical of porous media (i.e., Darcian flow velocities). A well
developed karst aquifer usually has a ground-water flow velocity orders
of magnitude greater than a porous media aquifer. The most important
aspect of open karst systems is that the dominant basin-wide component
is rapid turbulent ground-water movement, that is non-Darcian flow,
through conduits to one or more springs that can vary in magnitude
based on the size of the basin and seasonable ground-water conditions.
The magnitude of the springs are largely a function of the size of the
ground-water basin and aquifer recharge.
Accordingly, before a CKD landfill unit can be sited in a potential
karst terrain, a person managing CKD waste must first verify and
certify that the facility is situated in a karst terrain based on the
revised definition of karst terrain pursuant to Sec. 259.16(b)(1).
Today's rule proposes that prior to construction of a CKD landfill in
carbonate terrain, a karst ground-water investigation must be conducted
to define the direction of ground-water flow, and points of discharge
for the karst ground-water basin(s) the facility may affect. The karst
ground-water investigation shall include a dye tracer study to identify
springs which are hydrologically related to the karst ground-water
basin potentially affected by the unit. The verification of a karst
terrain may include, but not necessarily be limited to, a review of the
available literature. If the literature fails to provide conclusive
evidence that the facility does not overlie a karst terrain, a basin-
wide field study should be implemented, even if the discharge points of
the basin exist beyond the facility boundary, to identify all potential
springs from which ground water passing beneath the CKD landfill unit
may discharge. Certification may be obtained from an independent
professional ground-water scientist, from the EPA Regional
Administrator, or from the State, in authorized States.
After verification, the person managing CKD waste must locate
background and intermediate sampling locations, and downgradient
springs or ground-water monitoring wells for detection monitoring
pursuant to Sec. 259.44(a) and Sec. 259.45(b) for assessment
monitoring. The person managing CKD waste must establish a ground-water
monitoring system pursuant to Sec. 259.41(a) that incorporates spring
monitoring. The Agency believes that this will generally necessitate:
(1) a field study to conduct an inventory of karst features and locate
springs; (2) quantitative tracer studies to verify flow path, time-of-
travel, and duration of the dye plume; (3) the regular monitoring of
chemographs and hydrographs of springs and monitoring wells; and (4)
the development of a sampling strategy based on the unique fate and
transport characteristics of the toxic constituents in CKD and
hydrology of the karst aquifer, that is capable of detecting releases
from the CKD landfill unit.
EPA believes it is important to include quantitative dye tracer
studies in any analysis of karst in order to
[[Page 45648]]
determine the time of travel and duration of the dye plume. Such data
are essential inputs to construction of a model of contaminant
migration through the aquifer. The contaminant model is predicated on
the dye behaving similarly to a contaminant in its dissolved phase or
in suspension adsorbed to colloids. Information on the time of travel
and duration of the dye plume would be compared to data from the storm
hydrograph and chemograph to identify optimum sampling intervals. The
Agency solicits comments on practical difficulties with dye studies and
characterizing karst terrain, and whether there are other alternative
approaches to ensure protection of human health and the environment.
Some areas of karst terrain may be prone to subsidence because of
natural subsurface conditions. Limestone and dolomite are slightly
soluble in water, and the solution process can enlarge existing
fractures, joints and other voids creating sinkholes and caves.
Potential caverns and karst pinnacles in the soil and bedrock may
eventually lead to collapse or puncture of the landfill liner due to
excessive overburden or settling. Accordingly, today's rule proposes
that the ground-water investigation shall also include an inventory of
karst features within and around facility property to identify areas
prone to surface subsidence or mass movement.
4. Performance-Based Standard for the Protection of Ground Water
a. Overview
To provide maximum flexibility while ensuring protectiveness, EPA
is proposing two types of standards relating to groundwater protection:
a traditional technology standard, specifying landfill design and other
technical requirements, and a more flexible performance-based standard
for facilities that wish to utilize a design or technology that they
believe will meet the performance standard. To ensure that it is
complying with the standards, a person managing CKD waste may choose
either to propose an alternative approach to the EPA Regional
Administrator (or the State, in authorized States), or may implement
the technology standards. EPA may approve the alternative if the Agency
concludes the alternative will meet a more general performance standard
described below.
With respect to ground water protection, EPA is proposing that the
unit design must ensure that exceedances of a ground-water protection
standard not occur at the relevant point of compliance. This standard
would apply to the metal constituents listed in Appendix VIII of Part
261 (antimony, arsenic, barium, beryllium, cadmium, chromium (total),
lead, mercury, selenium, silver, and thallium). For each constituent,
the standard would be as follows: (1) if available, the maximum
contaminant level (MCL) established under section 1412 of the Safe
Drinking Water Act (see 40 CFR Part 141); (2) for constituents with
concentration levels lower than background, the background level; and
(3) for constituents with no MCLs, an alternative risk-based number or,
(in an unauthorized State) other appropriate level established by the
EPA Regional Administrator. The Agency solicits comment on the adequacy
of using MCLs to define limits for metals in ground water at the point
of compliance, and whether or not health-based numbers (HBNs) rather
than MCLs should be used as a primary groundwater protection standard.
While, EPA's Subtitle D groundwater protection standards are based on
MCLs, the Agency's hazardous waste listing determinations are
traditionally based on HBNs. The primary difference between MCLs and
HBNs is that HBNs are derived based solely on health effects whereas
several factors in addition to health effects are considered in the
development of MCLs. Development of MCLs requires an evaluation of: (1)
The availability and cost of analytical methods; (2) the availability
and performance of technologies and other factors relative to
feasibility and identifying those that are ``best'; and, (3) an
assessment of the costs of the application of technologies to achieve
various concentrations. Therefore, MCLs may be more or less
conservative than HBNs corresponding to the Agency's hazardous waste
listing risk range of 10E-4 to 10E-6 for carcinogens and an HQ of 1 for
non-carcinogens.
EPA is proposing today that facilities that wish to propose a
design to comply with the performance standard must submit a proposed
plan to implement the performance standard for approval by a regulatory
agency. EPA will provide such oversight in unauthorized States.
Authorized States, on the other hand, may be more stringent and are not
required to adopt today's proposed performance standard approach. If a
State chooses not to provide such review, compliance with the
technology standards would be required (since there is no mechanism for
approving an alternative approach). EPA strongly urges States to
provide the option of a performance standard. Such a standard would
protect human health and the environment and minimize the cost of
compliance by allowing facilities to tailor ground-water controls to
site-specific conditions.
b. Performance Standard and the Point of Compliance
The MCL is the maximum permissible level of a contaminant in water
which is delivered to any user of a public water system, and is a
standard for evaluating the potability of water. It is the traditional
measure used by the Agency to protect the nation's public drinking
water supplies (see 40 CFR Parts 141-143 National Drinking Water
Regulations). MCLs would be measured at the point of compliance (POC),
defined as the closest practical distance from the unit boundary, or at
an alternative point chosen by the EPA Regional Administrator (or the
State, in authorized States). The alternative POC must be on facility
property and be no more than 150 meters from the unit boundary. In
allowing for an alternative POC, the Agency's rationale is to allow
greater flexibility for a State to set design requirements based on the
site-specific factors (for example, see Sec. 257.3-4(b)(1)(i) through
(vii)).
5. Technology-Based Standards for the Protection of Ground Water
EPA is proposing that design criteria similar to those for MSWLFs
under the Subtitle D program (Solid Waste Disposal Facility Criteria,
56 FR 50978, October 9, 1991) be adopted with certain modifications for
ground-water monitoring (see Sec. 259.40) and remediation. For
facilities complying with the technology-based standards for the
protection of ground water, any new CKD waste management unit or
lateral expansion of an existing unit must be constructed with a
composite liner and a leachate collection and removal system (LCS) that
is designed and constructed to maintain less than a 30 cm depth of
leachate over the liner. The composite liner must consist of two
components: an upper flexible membrane liner (FML) with a minimum
thickness of 30-mil, and a lower component consisting of at least two
feet of compacted clay with a hydraulic conductivity of no more than 1
x 10-7 cm/sec. In selecting this uniform design, EPA's goal
was to identify one that would provide adequate protection in all
locations.
The Agency believes the technology-based standards proposed in
today's rule will be protective of ground-water resources. Liners will
prevent leachate from seeping from the landfill and entering the
aquifer. The FML must
[[Page 45649]]
have a minimum thickness of 30-mils and be installed in direct and
uniform contact with the lower clay component to ensure adequate liner
performance, including being able to withstand the stress of
construction (see U.S. EPA RREL, Lining of Waste Containment and Other
Impoundment Facilities EPA/600/2-88/052. September 1988). Compacted
clay liners must be at least two feet thick to ensure a high
probability of having a hydraulic conductivity of 1 x 10-7
cm/sec. Functionally, both the FML and lower clay component are
necessary to retard the migration of contaminants into the subsoil. The
FML component would provide a highly impermeable layer to maximize
leachate collection and removal. The compacted clay liner would adsorb
and attenuate pollutants in the event of FML liner failure.
A LCS is necessary to relieve the hydraulic pressure within the
landfill which could drive leachate migration through the base of the
landfill. LCS design normally consists of a permeable material placed
on a sloping surface so as to allow leachate to be removed and
collected. Large units may also have a pipe drainage system. Sloping
the LCS towards a sump minimizes any downward flow, and reduces the
amount of leachate leaving the LCS.
The Agency seeks comments on the effectiveness of various liner
thicknesses and materials in preventing the migration of the hazardous
constituents of CKD to groundwater. Of particular interest to the
Agency is the effectiveness of use of CKD as a liner or cap material.
CKD may be a suitable material for use as a liner or cap material
because of its cementitious properties. Studies on CKD obtained by the
Agency suggests that very low hydraulic conductivities (less than 1 x
10-7 cm/sec) are readily achievable in the laboratory, and
in field trials using heavy equipment to compress CKD to high
densities.\32\ However, the Agency also has contravening information
from one site visit and two case studies where CKD has been used as a
cap material \33\ which suggests that compaction control is difficult
to maintain over an area that is acres in size. Nevertheless, EPA is
not proposing today that CKD be banned from use as a liner or cap
material. Rather, it can be used as part of a unit design if the person
managing CKD waste can demonstrate that the design meets the
performance standard for ground water, including establishing that the
material will maintain integrity over long periods of time and,
therefore, has a low potential for release of contaminants.
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\32\ See Todres, H.A., 1992. Cement Kiln Dust: Field Compaction
and Resulting Permeability. Research and Development Bulletin
RD106T, Portland Cement Association, Skokie, Illinois. 47p; and,
Todres, H.A., Mishulovich, A., and Ahmed, J. 1992. Cement Kiln Dust
Management: Permeability. Research and Development Bulletin RD103T,
Portland Cement Association, Skokie, Illinois. 9p.
\33\ See Spectra Engineering, P.C., 1995. Lehigh Portland Cement
Company, Alsen Dust Disposal Facility, Closure Certification Report.
Prepared for Lehigh Portland Cement Company, Cementon Plant,
Cementon, New York. See also letter from Thomas M. Polasek, P.E.,
Michigan Department of Environmental Quality, to Frank Davis,
Lafarge Corporation, re: Consent Judgment Compliance, October 10,
1996.
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6. Requirements for Ground-water Monitoring
EPA is proposing that ground-water monitoring be required for all
new and existing CKD management units, to detect the presence of
regulated constituents in the ground water. The ground-water monitoring
and corrective action requirements proposed today are based on
requirements promulgated under Part 258 for MSWLFs and hazardous waste
regulations under Part 264--Subpart F for Solid Waste Management Units.
The ground-water monitoring system must include at a minimum one up
gradient and three down gradient wells. The down gradient wells must be
located not farther than 150 meters from the unit boundary at the
relevant POC specified by the EPA Regional Administrator (or the State,
in authorized States). The ground-water monitoring system must be
capable of ascertaining the quality of background ground water that has
not been affected by releases from the unit, and assessing the quality
of ground water passing the relevant POC, as certified by a qualified
ground-water scientist. The ground-water monitoring program must
include consistent sampling and analysis procedures that are designed
to ensure monitoring results that provide an accurate representation of
ground-water quality at the background and down gradient wells.
For facilities located in karst terrain, EPA is also proposing that
the ground-water monitoring strategy include, where necessary, springs
which are the ultimate discharge points of the karst ground-water basin
in which the facility is situated. In karst terrain, point-of-
compliance ground-water monitoring wells may not detect a point source
release from a CKD management unit based on failure of the monitoring
wells to intersect the conduit through which the contaminant plume
passes. While monitoring wells are appropriate, they are not fail-safe.
Consequently, discharge points of the karst ground-water basin should
be incorporated into the overall monitoring strategy to detect a
release. In today's rule, EPA is proposing that the EPA Regional
Administrator (or the State, in authorized States), in addition to
specifying the relevant POC, may also specify ground-water monitoring
at discharge points of the karst ground-water basin potentially
affected by releases from the CKD waste management unit.
EPA is proposing two types of monitoring: detection monitoring and
assessment monitoring. Under proposed Sec. 259.44, persons managing CKD
waste in a CKD waste management unit will be required to undertake a
ground-water detection monitoring program, similar to that described
under Sec. 258.54 of the MSWLF rule. In a departure from the MSWLF
rule, EPA is proposing to require detection monitoring only for the
following parameters: pH, conductivity, total dissolved solids,
potassium, chloride, sodium, and sulfate. These detection parameters
are easily measured and should provide a reliable indication of
inorganic releases from the CKD waste management unit to ground water.
The Agency solicits comment on the adequacy of these detection
parameters for monitoring releases and whether metal constituents are
necessary.
If detection monitoring indicates a statistically significant
increase over background for one or more of the detection parameters
listed above, under proposed Sec. 259.45, a person managing CKD waste
is required to implement an assessment monitoring program, similar to
that described in Sec. 258.55 of the MSWLF rule. In another proposed
departure from the MSWLF rule, today's proposed rule does not require a
scan for the hazardous constituents listed under part 258, Appendix II.
Instead persons managing CKD under today's proposed rule would be
required to sample and analyze the ground water for only the inorganic
constituents listed in Appendix VIII of Part 261 (antimony, arsenic,
barium, beryllium, cadmium, chromium (total), lead, mercury, nickel,
selenium, silver, and thallium).
Because this proposal requires ground-water monitoring at new and
existing CKD landfill units, today's action effectively prohibits the
location of such units in areas where subsurface conditions prevent
monitoring of subsurface contaminant migration from the landfill unit.
EPA anticipates that the Regional Administrators (or authorized States)
will not issue an operating permit for CKD landfill units located in
areas where subsurface monitoring is impossible. Geologic
[[Page 45650]]
settings that could preclude effective ground-water monitoring include
areas of limestone bedrock in mature karst settings, with complex
networks of conduits, fractures, and joints which impede accurate
prediction of ground-water flow. The Agency considers it the
responsibility of the persons managing CKD waste to prove that a
landfill can be effectively monitored.
7. Corrective Action
Today's proposal establishes corrective action steps similar to
Sec. 258.56 of the MSWLF rule. Within 90 days of finding that any of
the part 261 inorganic constituents (see previous section) have been
detected at a statistically significant level exceeding the ground-
water protection standards as defined under Sec. 259.45(h), the persons
managing CKD waste must initiate an assessment of corrective measures.
Such an assessment must be completed within 90 days, or within an
alternative period of time decided by the EPA Regional Administrator,
in accordance with Sec. 259.46. Today's proposal allows for swift
remediation of a ground-water problem, yet provides flexibility for
selecting and implementing the corrective remedy.
Under proposed Sec. 259.47 and Sec. 259.48, the selection of a
remedy and implementation of the corrective action program must be
completed in accordance with those procedures which are similar to
those enumerated in 40 CFR 258.57 and 258.58 for MSWLFs. These
requirements only apply to those hazardous constituents that are likely
to be present in CKD as previously described. An exceedance of today's
proposed ground-water protection standards would not immediately result
in classification of such CKD as mismanaged. If a person managing CKD
waste, however, failed to take the necessary corrective action after
detecting an exceedance, CKD would be considered mismanaged and,
therefore, hazardous waste. The Agency solicits comment regarding the
time periods in which remedial activities must be initiated, and
whether or not today's proposed minimum time periods are appropriate
given the widely varying circumstances likely to be encountered at
facilities requiring corrective action.
In today's rule the Agency is not proposing facility-wide
corrective action standards for the management of CKD. Instead, EPA
proposes to require corrective action at units which are actively
managing CKD. EPA believes that the costs associated with requiring
corrective action at all solid waste management units that may happen
to be located at a CKD facility make it inappropriate to impose such a
requirement. Where releases from such units have occurred, other state
law authorities and the Federal imminent hazard authorities under
section 7003 of RCRA or section 106 of CERCLA, will be adequate to
address any threats to human health and the environment. (The handling
of corrective action at facilities that become subject to today's
proposed Subtitle C standards is discussed in Section V.B.--
Implementation of part 259 and RCRA Subtitle C Backup Standards.)
B. Standards for Fugitive CKD Emissions
1. The Need to Limit Fugitive CKD Emissions
In the Agency's follow-up work leading to the September 1994 NODA
(see 59 FR 47133, September 14, 1994), EPA found evidence of possible
risk to human health due to the fine particulate nature of inhaled
dust. Particulate matter is of health concern because fine particles
such as CKD can penetrate into the sensitive regions of the respiratory
tract and cause respiratory illness. Negative effects associated with
exposure to particulate matter include premature death, hospital
admissions from respiratory ailments, and increased respiratory
symptoms such as persistent coughs, phlegm, wheezing, and physical
discomfort. Long-term exposure to particulate matter may increase the
rate of respiratory and cardiovascular illness and reduce life span.
Although the Agency's direct inhalation exposure modeling studies
described in the RTC did not indicate significant risk from inhaled
chemical constituents in CKD, subsequent screening-level modeling on
five case study plants indicated that windblown dust from uncontrolled
CKD waste management units (uncovered and dry CKD piles) could exceed
EPA's health-based PM10 fine particulate (10 microns or
less) National Ambient Air Quality Standard(NAAQS) 34 at
plant boundaries, and potentially at nearby residences.
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\34\ The level of the national primary and secondary 24-hour
ambient air quality standards for PM10 is 150 micrograms
per cubic meter g/m\3\), and 65 g/m\3\ for
PM25, 24-hour average concentration. The standards are
attained when the expected number of days per calendar year with a
24-hour average concentration above 150 g/m\3\ for
PM10, and above 65 g/m\3\ for PM25,
as determined in accordance with Appendix K to 40 CFR part 50, is
equal to or less than one. The level of the national primary and
secondary annual standards for PM10 is 50 micrograms per
cubic meter (g/m\3\), and 15 g/m\3\ for
PM25, annual arithmetic mean. The standards are attained
when the expected annual arithmetic mean concentration, as
determined in accordance with Appendix K to part 50, is less than or
equal to 50 g/m\3\ for PM10 and 15 g/
m\3\ for PM25.
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Results from a subsequent extension of this work to a larger sample
of 52 cement plants suggest that 28 of the plants could exceed NAAQS
PM10 standards at plant boundaries, if the plants do not
have effective dust control mechanisms in place. The Agency recognizes
that dust from mining and quarry operations could contribute to the
particulate emissions from a cement plant; however, other evidence
(i.e., damage cases) indicates that fugitive CKD emissions are a
substantial contributor to environmental damages in the form of air
quality degradation.
Additionally, particulate emissions of fugitive dust are the major
contributor of CKD to EPA's indirect foodchain pathway model. The
Agency's quantitative modeling of ``indirect'' food chain pathways,
both aquatic and agricultural, indicates potential human health
effects, both cancer and non-cancer. A wide range of chemical
constituents, including arsenic, cadmium, chromium, barium, thallium,
lead, and dioxins, were indicated as constituents of concern at various
plants. Because some CKD disposal units are located near, and in some
instances immediately adjacent to, farm fields, rural residences with
gardens, or surface waters containing fish, there is potential for
indirect risk from the consumption of CKD-contaminated beef, vegetables
and fish, as well as ingestion of CKD-contaminated water during
recreational swimming.
Although quantitative risks presently can not be estimated, these
initial modeling results relating to fine particulates suggest cause
for concern and argue for further attention to this source of fugitive
dust. Consequently, the Agency believes it is necessary to impose
additional controls on fugitive emissions under authority provided by
RCRA section 3004(n).
2. Applicability
EPA is proposing air protection standards to limit fugitive CKD
emissions for all new and existing CKD waste landfill units, except
units closed prior to the effective date of the final rule. Any
expansion of an existing CKD landfill unit, defined as any lateral or
vertical expansion of the waste boundary of an existing landfill unit,
must meet today's proposed requirements. Under this proposed
definition, any area of any existing unit that receives waste after the
effective date of this rule is an expansion. EPA is also proposing that
interim storage units, such as containers or buildings which contain
CKD destined for recycling or sale, must comply with the air
performance standards.
[[Page 45651]]
Consistent with controls proposed today for ground water, the
Agency is not proposing to require fugitive dust controls for the old,
inactive portions of existing CKD landfills. However, EPA solicits
comment on applying air controls to the entire active unit, including
any inactive area of a CKD landfill with an expansion.
These proposed standards could be met in one of two ways. First, a
person managing CKD waste could obtain a determination from the EPA
Regional Administrator (or from the State, in authorized States), that
a management practice or design meets the performance standard,
providing adequate assurance that the unit is managed to control wind
dispersal of particulate matter. Second, the person managing CKD waste
could design units according to technology-based standards outlined
below, so as to obviate the need for such a demonstration.
3. Performance Standard for the Protection of Air
Under today's proposal, unit design must ensure that wind dispersal
of particulate material (PM) is controlled. The specific performance
standard for air is that the persons managing CKD must cover or
otherwise manage the unit to control wind dispersal of CKD waste. This
standard would apply to solid PM that becomes airborne directly or
indirectly as a result of CKD handling procedures. The most common
sources of PM at cement manufacturing facilities to which this standard
applies includes vehicular traffic on unpaved roads or on CKD waste
management units, and wind erosion from waste management units. This
standard would not apply to CKD emitted from an exhaust stack.
The Agency understands that methods for controlling fugitive dust
will vary depending on factors such as geographic location, climate,
facility design, and CKD management method. While the technology-based
standards of conditioning CKD, using covers, watering, and use of
tanks, containers, or buildings for temporary storage, meets the
performance standard, other techniques and technologies may be as or
more effective. Therefore, today's proposal provides persons managing
CKD waste, working with regulatory agencies, with substantial
flexibility to determine the appropriate method to control fugitive
emissions based on facility-specific conditions.
To demonstrate compliance with the performance standard for the
protection of air, EPA is proposing that persons managing CKD waste in
new and existing CKD landfills, temporary storage areas, and trucks
provide cover or otherwise manage the CKD such that equivalent control
exists to that provided by daily cover of the landfill unit.
Additionally, if landfill units, roads, temporary storage areas, and
trucks are managed with no visible fugitive emissions of CKD, the
Agency would view that the performance standard is met. The Agency
solicits comment regarding the effectiveness of various fugitive dust
control methods in demonstrating compliance with the performance
standard for air so that EPA can provide comprehensive guidance to
persons managing CKD and to staff at regulatory agencies who would
implement today's proposed rule.
4. Technology-Based Standards for Fugitive Dust Control
a. Conditioning
For facilities complying with the technology-based standards, EPA
is proposing that CKD managed in landfills must be emplaced as
conditioned CKD. For purposes of this section, conditioned CKD means
cement kiln dust that has been compacted in the field at appropriate
moisture content using moderate to heavy equipment to attain 95% of the
standard Proctor maximum dry density value according to ASTM D 698 or D
1557 test methods. Such conditioning can be achieved by mixing the CKD
with water on a continuous or batch basis, such as pug-milling,
followed by compaction. The material should be spread in lifts of
uniform thickness and compacted to the required density with
appropriate equipment (e.g., a heavy sheep-foot roller). The compaction
of moist CKD, coupled with the waste's natural cementitious properties,
enables individual waste particles to bond together, thus greatly
reducing the availability of particulate material for air dispersal,
and, therefore, this standard is protective for fugitive dust from
landfills. In addition, the bonding can serve to decrease the leaching
of contaminants from CKD.
b. Covers
The Agency is also proposing that disposed CKD be covered with
material at the end of each operating day sufficient to prevent blowing
dust. EPA believes that cover material applied at the end of each
operating day over the active face of the CKD landfill will prevent the
entrainment of fugitive dust, and is a more effective practice for dust
suppression than frequent wetting and watering.35 The cover
must be constructed of materials that have appropriate physical and
chemical properties, and sufficient strength and thickness to prevent
failure due to physical contact with CKD, climatic conditions, the
stress of installation, and the stress of daily operation. Similarly,
EPA is proposing that CKD transported in trucks on or off the facility
be covered to minimize fugitive emissions of CKD. Alternative materials
or actions may be approved by the EPA Regional Administrator (or the
State, in authorized States), as long as the person managing CKD waste
makes a demonstration that the alternative meets the performance
standard.
---------------------------------------------------------------------------
\35\ Although wetting and watering is a common fugitive dust
suppression practice at CKD landfills, the persistent releases of
fugitive CKD reported in the RTC suggest that frequent wetting alone
is not sufficient to prevent blowing dust.
---------------------------------------------------------------------------
c. Wetting
Wetting of CKD on roads is not required in today's proposed
performance-based standards. EPA believes, however, that consistent
wetting and watering of unpaved roads, when used in conjunction with
other air control technologies, can reduce releases of fugitive
emissions from facilities that manage CKD. Data from an EPA study of
fugitive dust emissions from cement plants and potential control
measures indicates that fugitive dust emissions from unpaved roads can
be significantly reduced by increasing the moisture content of the
dust. However, the wetting of roads by itself will not meet today's
proposed performance standard for air.
The Agency solicits comments on the effectiveness of these and
other methods for controlling fugitive emissions of CKD.
d. Temporary Storage
The Agency today is proposing that CKD destined for temporary
storage prior to recycling, sale, or disposal not be placed in land-
based units, but in tanks, containers, or buildings. CKD would not be
considered a hazardous waste provided the storage that precedes sale or
recycling provides adequate control of fugitive dust. An acceptable
containment unit must be a man-made structure with a foundation
constructed of non-earthen materials, have walls (which may be
removable), and have a roof suitable for diverting rainwater away from
the foundation. In considering these criteria for containers and
buildings, EPA is placing special emphasis upon practical
considerations, such as the need to transport materials in and out of
the unit in a reasonable fashion. The Agency would not require that
these units meet full Subtitle C
[[Page 45652]]
requirements for storage of hazardous wastes as outlined in parts 264
and 265 subparts I and J.
C. Closure
In today's proposed rule, EPA is requiring that new and existing
CKD landfill units, including expansions be closed in accordance with
specified standards, and that units be monitored and maintained after
closure. Closure and post-closure plans describing these activities are
to be prepared to comply with a minimum set of procedural requirements.
As described in the damage cases supporting this rule, improperly
closed CKD landfills have the potential for contaminating the
environment due to inadequate controls to contain the waste. For
example, in one damage case, CKD wastes remained exposed due, in part,
to failure to install a proper cap or insulate the waste from the
erosive wave action of Lake Huron.
EPA proposes that all persons managing CKD waste in CKD landfill
units must install a final cover designed to minimize infiltration and
promote drainage from its surface while minimizing erosion. It must
also be designed so that settling and subsidence are accommodated to
minimize the potential for disruption of continuity and function of the
final cover. The Agency believes that placement of a final cover over
closed portions of a CKD landfill is necessary to minimize the
infiltration of rainwater, minimize the dispersal of CKD waste through
physical interaction, and minimize the need for further maintenance at
the facility through the post-closure period and beyond. The
infiltration layer must be a minimum of 18 inches of earthen material
that has a hydraulic conductivity of less than or equal to the bottom
liner system, or no greater than 1 x 10-5 cm/sec,
whichever is less. The erosion layer must have a sufficient thickness
to sustain native plant growth. Alternative final cover designs may be
approved by the EPA Regional Administrator (or the State, in authorized
States), if the cover layers achieve the same objectives as the
specified design in this proposed rule.
D. Post-Closure Care
Today's proposed rule also requires that post-closure care be
conducted for a period of 30 years after the closure of each CKD
landfill unit. Post-closure care consists of maintaining the
effectiveness of the final cover and continuing ground-water monitoring
and leachate management to control the formation and release of
leachate into the environment. Routine maintenance of the integrity and
effectiveness of the final cover is necessary to prevent liquids from
penetrating into the closed landfill and creating the potential for
leachate migration.
EPA is proposing in today's rule to give the EPA Regional
Administrator (or the State, in authorized States), discretion to
reduce or extend the length of the post-closure period based on site-
specific demonstrations. The Agency is concerned that 30 years may be
excessive or insufficient to detect releases at some landfills.
Therefore, the Agency wants to ensure that any potential release will
be detected regardless of when it occurs.
Required activities in today's proposed rule include repairs to the
final cover to correct the effects of settling, subsidence, and
erosion, and preventing run-on and run-off from damaging the cover.
Cover maintenance also includes periodic cap replacement, which is
necessary to remediate the effects of routine deterioration. The Agency
believes that these activities will minimize liquids in CKD landfills
and are the minimum steps necessary to protect human health and the
environment in the long term.
Today's proposal under Sec. 259.50 also requires ground-water
monitoring and maintenance of the ground-water monitoring system during
the post-closure care period. The fundamental purpose of monitoring
during the post-closure care period is to detect ground-water
contamination in a timely fashion should the CKD waste containment
structure fail, and to trigger corrective action activities as soon as
contamination occurs. Long-term monitoring is essential to detect
releases due to catastrophic failure or design and installation errors
(e.g., tearing of liners due to ground movement).
E. Closure/Post--Closure Planning Requirements
Today's proposed rule also requires preparation of closure and
post-closure plans describing activities that will be undertaken to
close each CKD landfill unit properly and maintain them after closure.
These plans must be prepared and placed in the facility operating
record no later than the effective date of this rule, or the date of
initial receipt of the waste, whichever is later.
The closure and post-closure care standards also include certain
procedural requirements. First, prior to closing of each landfill unit,
the EPA Regional Administrator (or the State, in authorized States)
must be notified and the notification must be placed in the facility
operating record. Second, closure of the landfill unit must begin
within 30 days after the date of final receipt of CKD waste and closure
complete within 180 days of receipt of the last shipment of waste.
Extensions to these deadlines may be approved for good cause by the EPA
Regional Administrator (or the State, in authorized States). Third,
following closure of the facility, a notation in the deed to the
property must be recorded that indicates the property has been used for
CKD disposal. Finally, the EPA Regional Administrator (or the State, in
authorized States) must be notified and a certification must be placed
in the facility operating record that verifies that closure and post-
closure activities have been conducted in accordance with closure and
post-closure plans. The certification must be signed by an independent
registered professional engineer, or approved by the EPA Regional
Administrator (or the State, in authorized States).
F. Financial Assurance
In today's proposed rule, a demonstration of financial assurance is
required for the costs of conducting closure, post-closure care, and,
if applicable, corrective action for known releases. The proposed
financial assurance requirements are patterned after the financial
assurance provisions for municipal solid waste landfill facilities
(MSWLFs) under Subtitle D. (see Secs. 258.71 to 258.75).
The purposes of financial assurance are to ensure that the owner or
operator of a CKD landfill unit adequately plans for the future costs
of closure, post-closure care, and corrective action for known
releases, and to ensure that adequate funds will be available when
needed to cover the costs if the owner or operator is unwilling or
unable to do so. To demonstrate to the EPA Regional Administrator (or
the State, in authorized States) that it has planned for future costs,
written cost estimates must be prepared. These cost estimates would
serve as the basis for determining the amount of financial assurance
that must be demonstrated.
EPA is proposing that persons managing CKD waste in new and
existing CKD landfill units, including expansions, be required to
demonstrate financial responsibility for closure, post-closure care,
and corrective action for known releases in an amount equal to the cost
of a third party conducting these activities. The ``third party''
provision ensures that adequate funds will be available for the
regulatory agency to hire a third party to conduct closure, post-
closure care, and corrective action in the event that the person
managing CKD waste fails to fulfill these obligations.
[[Page 45653]]
The cost estimates must be based on the cost of closing the CKD
landfill unit at the point of the landfill's active life when the
extent and manner of its operation would make closure the most
expensive. Similarly, cost estimates for post-closure care must include
estimates for both annual and periodic activities, and account for the
most expensive costs of routine post-closure care. EPA is proposing
that the cost estimates be updated annually for inflation and whenever
design changes cause changes in the costs at the CKD landfill unit.
Cost estimates may be reduced provided a justification for the
reduction is placed in the operating record and the EPA Regional
Administrator (or the State, in authorized States) is notified. The
Agency solicits comment on whether cost estimates need prior approval
by the EPA Administrator.
In today's proposal, any person managing CKD waste who is required
to undertake a corrective action program would be required to prepare
an estimate of the cost of an appropriate corrective action program
(for example, by multiplying the total annual costs of remedial actions
by the number of years required to complete the corrective action
program).
Today's proposed rule includes a list of specific financial
mechanisms that may be used to demonstrate financial responsibility, as
well as criteria for judging whether other mechanisms are acceptable.
The rule permits the use of a trust fund with a pay-in period, surety
bond, letter of credit, insurance, State-approved mechanism, and State
assumption of responsibility.
Today's proposed rule would also allow private owners or operators
of cement kiln dust landfills (CKDLFs) that meet certain financial and
recordkeeping and reporting requirements to use a financial test to
demonstrate financial assurance for CKDLF closure, post-closure care
and corrective action costs up to a calculated limit. (Costs over the
limit must still be assured through a third-party mechanism such as a
surety bond or trust fund, or, in authorized States, through other
appropriate mechanisms the State determines to meet the performance
standard proposed at Sec. 259.64(l)). The financial test allows a
company to avoid incurring the expenses associated with the existing
financial assurance requirements which provide for demonstrating
financial assurance through the use of third-party financial
instruments, such as a trust fund, letter of credit, surety bond, or
insurance policy. With the financial test, private persons managing CKD
waste may demonstrate that they are capable of meeting their financial
obligations at their CKDLFs through ``self insurance.''
In addition, today's proposed rule allows persons managing CKD
waste to comply with financial responsibility requirements for CKDLFs
using a guarantee provided by another private firm (the guarantor).
Under such a guarantee, the guarantor promises to pay for or carry out
closure, post-closure care, or corrective action activities on behalf
of the person managing CKD waste in a CKDLF if the person fails to do
so. Guarantees, like other third-party mechanisms, such as letters of
credit or surety bonds, ensure that a third party is obligated to cover
the costs of closure, post-closure care, or corrective action in the
event that the person managing CKD waste goes bankrupt or fails to
conduct the required activities. At the same time, a guarantee is an
attractive compliance option for persons managing CKD waste because
guarantees are generally less expensive than other third-party
mechanisms.
Today's proposed rule releases persons managing CKD waste from
financial responsibility for closure, post-closure care, or corrective
action when the EPA Regional Administrator (or the State, in authorized
States), is notified that a certification has been placed in the
facility operating record that the specific activities (i.e., closure,
post-closure care for a period, corrective action) have been completed
in accordance with the appropriate plan. The certification must be
signed by a professional engineer, approved by the EPA Regional
Administrator (or the State, in authorized States).
EPA is also considering requiring persons managing CKD waste in CKD
landfill units to demonstrate financial assurance for third party
liability to compensate injured third parties. Such liability
requirements are currently required under RCRA Subtitle C for hazardous
waste management facilities (see 40 CFR 264.147). Financial assurance
for third-party liability potentially benefits the public health by
providing the incentive of lower insurance premiums resulting from
improved facility design and operation.
Under Sec. 264.147, an operating land disposal facility must have
both coverage for sudden accidental releases in the amount of $1
million per occurrence and $2 million annual aggregate plus nonsudden
coverage. This nonsudden accidental coverage is for an additional $3
million per occurrence and $6 million annual aggregate. Thus, were the
Agency to require the same level of liability coverage for CKD
landfills as for hazardous waste land disposal owners and operators,
they would need at least $4 million and $8 million in total.
For municipal solid waste landfill facilities, EPA has deferred the
development of third party liability requirements under part 258. EPA's
decision to defer these requirements was based upon two issues. The
first was that the Agency had insufficient data to set appropriate
levels for third party liability coverage. Second, the Agency was
concerned that owners and operators of MSWLFs would encounter
difficulty in obtaining financial assurance mechanisms to fulfill this
requirement. (For more information on these points please see the
Appendix to the final regulation establishing the Solid Waste Disposal
Criteria at 56 FR 51108.)
The Agency, however, believes that the risks from CKD landfill are
closer to those for from MSWLFs than from hazardous waste treatment,
storage, and disposal facilities (TSDFs). Therefore, the types of
liability requirements for hazardous waste TSDFs may be inappropriate
for CKD landfills. Further, the amounts of coverage that EPA should
require may also differ. EPA has limited data at this time to specify
the amount of liability coverage that would be appropriate for a CKD
landfill unit. Another consideration is the cost of implementing such a
requirement. EPA is reluctant to directly adopt the levels of coverage
required for Subtitle C facilities without further analysis comparing
the risks and resultant third party claims from CKD landfill units and
other Subtitle C hazardous waste facilities. The Agency, therefore,
requests comment on whether or not to require financial assurance for
third-party liability for CKD landfill units. In particular, EPA
requests information on the risks to third parties from these
facilities, the amount of claims, and the availability of liability
coverage to assist it in setting appropriate levels of liability
coverage.
G. Implementation
Except as provided in proposed Sec. 259.40, existing CKD management
units, including vertical expansions would be required to be in
compliance with the groundwater monitoring requirements proposed under
Sec. 259.40 within two years after the effective date of the final
rule. New CKD management units, including lateral expansions must be in
compliance with the ground-water monitoring requirements proposed under
Sec. 259.41 before CKD can be placed in the unit. Ground-water
monitoring shall be conducted throughout the active life and post-
[[Page 45654]]
closure care period of the CKD management unit as proposed under
Sec. 259.51.
A unit design which causes an exceedance of the groundwater
protection standard will be considered as being in compliance with
today's proposed rule if appropriate corrective action is taken. As
explained below, if a person managing CKD waste does not initiate
corrective action to correct the source of contamination within 270
days (unless an alternative schedule for compliance is set by the EPA
Regional Administrator under Sec. 259.47(e)), the CKD managed in such a
unit will be considered a Subtitle C waste, and subject to standards
under 40 CFR part 266.
1. Notification, Recordkeeping, and Reporting
Record reviews are one of the ways EPA can ascertain whether a
facility is in compliance with today's proposed standards. Accordingly,
in Sec. 259.23 of today's proposal, EPA has included a recordkeeping
requirement to ensure that a historical record of CKD landfill
performance is maintained. The person managing CKD waste would be
required to maintain the following records: (1) Any required
demonstration, certification, finding, monitoring, notification,
testing, or analytical data proposed today under Subpart E of part 259;
(2) required inspection records, training procedures, and regulatory
agency notification procedures as proposed under Sec. 259.20; (3)
required closure and post-closure care plans and any monitoring or
analytical data proposed under Secs. 259.50 and 259.51; and (4) any
required cost estimates and financial assurance documentation proposed
under subpart G of today's proposal. The required information would be
recorded as it becomes available, and maintained by the persons
managing CKD waste in new and existing CKD landfill units. EPA requests
comment on the timing of regulatory agency notification and whether
specific time requirements (e.g., 14 days from a finding) should be
specified for placement of documents in the operating record.
In today's rule, EPA is proposing that information would be
retained in an operating record near the facility, or in an alternative
location approved by the State (or in unauthorized States, by the EPA
Regional Administrator). In addition, today's rule proposes that all
information contained in the operating record must be publicly
available. EPA believes that these requirements would ensure the
availability of basic types of information that demonstrate compliance
with the requirements of today's proposal, but requests comment on the
operating record being kept near the facility or in an approved
alternative location and whether limitations should be placed on this
requirement (i.e., distance the record can be kept from the facility,
access to the record or public availability issues with the record
being off-site.).
2. Permitting Requirements
EPA is proposing to modify the requirements in 40 CFR part 270 by
adding Sec. 270.68 specific to the permitting of cement manufacturing
facilities which manage CKD. Part 270 of the hazardous waste
regulations contains specific requirements for permit applications,
permit conditions, changes to permits, expiration and continuation of
permits, interim status and special forms of permits. Facilities that
choose not to follow, or fail to maintain the management standards for
cement kiln dust waste proposed today in part 259 may be required to
obtain a permit under rules proposed today under 40 CFR 270.68. This
Subtitle C permit would provide for the operation of the facility in
accordance with 40 CFR part 259, and may include such additional
requirements as the EPA Regional Administrator deems necessary to
protect human health and the environment, including, but not limited to
requirements regarding monitoring, operation, financial responsibility,
closure and remedial action. In States with an authorized RCRA program,
all references to the EPA Regional Administrator should be read as
referring to the State Director, or other State official responsible
for implementing the State Subtitle C solid waste permit program.
Today's proposed rule would also allow for Federal oversight and
enforcement of requirements under Subtitle C.
The Subtitle C permit proposed today under Sec. 270.68 is different
from other part 270 permits. Generally applicable standards under 40
CFR part 270 and part 124 for permit application, issuance and
modification, apply to facilities that are fully subject to the
Subtitle C regulations, including requirements for facility-wide
corrective action. Under today's proposal, however, CKD facilities
subject to a permit to allow operation in accordance with part 259
regulations are not subject to certain regulations applicable to most
Subtitle C facilities. For example, these facilities would not be
subject to facility-wide corrective action and would not be required to
submit information to support a facility wide corrective action program
(see existing Sec. 270.14(d)). The Agency, therefore, solicits comment
on today's proposed approach, and whether the full range of
requirements normally imposed under part 270 should be required for
cement manufacturing facilities which manage CKD. To address portions
of part 270 and 124 that would not apply for these CKD facilities,
proposed Sec. 270.68 allows the EPA Regional Administrator (or the
State, in authorized States), consistent with the protection of human
health and the environment, to modify or waive permit application and
permit issuance requirements in parts 124 and 270, except for
procedures regarding public participation.
EPA anticipates that few facilities will be required to seek
permits to operate in lieu of the terms of today's proposed part 259
standards and is proposing today's standards under Sec. 270.68 rather
than detailed procedures or modifications of existing part 270 for the
establishment of these permits. This approach is consistent with that
taken for the Research, Development and Demonstration permits found in
Sec. 270.65. In today's rule, only those facilities that fail to comply
with either the performance standards or the technology-based standards
under 40 CFR part 259 will be subject to RCRA Subtitle C regulations,
and thus will require permits proposed under Sec. 270.68.
H. Applicability of the Boilers and Industrial Furnaces Rule
On February 21, 1991, the Agency promulgated a final rule for
burning of hazardous waste in boilers and industrial furnaces (BIF
rule) (see 56 FR 7134). The BIF rule expanded controls on hazardous
waste combustion to regulate air emissions from burning hazardous waste
in boilers and industrial furnaces. The rule also subjected owners and
operators of these facilities to the general facility standards
applicable to hazardous waste treatment, storage and disposal
facilities (40 CFR part 264) and subjected hazardous waste storage
units at regulated burner facilities to part 264 permit standards.
Three types of facilities that burn or co-combust hazardous waste
that are affected by the BIF rule are: (1) Boilers burning primarily
coal or other fossil fuels, (2) industrial furnaces processing
primarily ores and minerals, and (3) cement kilns processing primarily
raw materials. Because residues from these processes were covered by
the Bevill exclusion until special studies were completed to determine
whether they should be regulated under Subtitle C (see section
3001(b)(3)(A)(i-iii)), the BIF
[[Page 45655]]
rule requires owners and operators to apply a two-part test to
determine whether the Bevill exclusion continues to apply. Using the
test, owners and operators are required to determine on a site specific
basis whether co-combustion of hazardous waste has significantly
affected the character of the residue. The residue is considered to be
significantly affected if both: (1) Concentrations of toxic (Appendix
VIII) compounds in the waste-derived residue are significantly higher
than in normal residue (i.e., without burning/processing hazardous
waste); and (2) toxic compounds are present in the waste-derived
residue at levels that could pose significant risks to human health.
(For metals, these are set at the RCRA toxicity characteristic level
defined in Appendix VII to part 266.) If the test demonstrates that the
waste-derived residue is significantly affected, or the persons
managing CKD waste fail to obtain data adequate to demonstrate that the
residue has not been significantly affected, then the derived-from
residues are subject to RCRA Subtitle C hazardous waste regulations.
Such residues are deemed to be from treating hazardous waste rather
than from burning fossil fuels, processing ores or minerals, or
manufacturing cement (see 56 FR 7196, February 21, 1991, Section XIII
for a discussion of the basis for the two-part test).
One of the effects of today's proposal is to replace the exemption
of CKD from hazardous waste regulation under the Bevill exemption with
specific management standards applicable to CKD. As a result, the two-
part test would be meaningless since, in the absence of the Bevill
exemption, all waste-derived CKD would be hazardous under the derived-
from rule (see 40 CFR 261.3(c)(2)(i)), whether or not it exhibits a
hazardous characteristic. However, the Agency believes subjecting
waste-derived CKD that does not exhibit a hazardous characteristic to
full Subtitle C requirements would create excessive burdens and be
unnecessary. EPA believes that applying the regulations proposed today
under Sec. 261.4(b)(8) to such waste will be protective. It should be
noted that characteristically hazardous waste-derived CKD is already
subject to Subtitle C regulation under 40 CFR 266.112 and is not within
the scope of this rulemaking.
The Agency, therefore, still believes it is necessary for persons
managing CKD waste at facilities burning hazardous waste as fuel to
test whether their CKD exhibits a hazardous characteristic under 40 CFR
266.112, and when the CKD tests hazardous, to manage the CKD as a
hazardous waste under full Subtitle C requirements. EPA believes that
subjecting characteristically hazardous CKD from hazardous waste
burning kilns to RCRA Subtitle C regulations will provide an incentive
for cement kiln owners and operators to reduce metals levels in their
CKD to remain eligible for the tailored standards. EPA notes that
cement manufacturing facilities that burn hazardous waste and generate
waste-derived CKD are subject to RCRA permitting regardless of the
content of the CKD they generated, including the requirement to conduct
facility-wide corrective action under 40 CFR 264.90, 264.101, and part
264, subpart S. To the extent that CKD has higher levels of toxic
metals due to the combustion of hazardous wastes, facilities may need
to do more to achieve today's proposed performance standards.
EPA is proposing that the two-part test for waste-derived CKD and
Subtitle C requirements for characteristically hazardous residues
should continue to apply to waste-derived CKD as described in the BIF
rule, but with a revision. EPA is proposing elimination of part one of
the two-part test, as set forth in 40 CFR 266.112(a)(1) because the
Agency knows of no case where CKD has passed the second test, but
failed the first. The Agency today solicits comments on the need for
part one of the two-part test, and solicits information on whether
there is any CKD that passed part one, but failed to pass part two, the
comparison with health-based limits. Additionally, the Agency proposes
that waste-derived CKD that does not test hazardous will be subject to
today's proposed performance standards and management standards.
I. Exemption From the Definition of Hazardous Waste
1. Waste-Derived Clinker
As discussed in the RTC, CKD is often re-introduced into the kiln
as a substitute for raw material in clinker production. In the absence
of the Bevill exemption, under certain regulatory scenarios clinker
produced from re-introduced CKD could be considered a hazardous waste
under the derived-from rule (40 CFR 261.3(c)(2)(i)). As part of the
regulations proposed today, EPA is also proposing to exclude clinker
from regulation as a derived-from hazardous waste when CKD is
reintroduced to the cement manufacturing process. When reintroduced,
CKD does not contribute any constituents to clinker production that are
not already present in the production process. Furthermore, at this
time, EPA has no indication that such clinker poses unacceptable
threats to human health or the environment.
2. Light-Weight Aggregate Kiln Dust
As mentioned in the Phase IV Land Disposal Restrictions Final Rule
on Mining and Mineral Processing Wastes (see Land Disposal
Restrictions--Final Rule to Phase IV: Clarification of Bevill Exclusion
for Mining Wastes, Changes to the Definition of Solid Waste for Mineral
Processing Wastes, Treatment Standards for Characteristic Mineral
Processing Wastes, and Associated Issues, 63 FR 28556, May 26, 1998),
EPA has decided to defer any decision on the Bevill status of air
pollution control dusts and sludges generated from light-weight
aggregate kilns (LWAKs) pending completion of an evaluation of issues
related to CKD and light-weight aggregate dust handling and use. Light-
weight aggregate pollution control dust and sludge, like CKD, are
produced as the result of combustion of raw materials within a kiln.
Like CKD, light-weight aggregate dust is usually not characteristically
hazardous because it seldom fails the Toxicity Characteristic Leaching
Procedure (TCLP). In addition, if a LWAK burns RCRA hazardous waste
during light-weight aggregate production, it is subject to the BIF
rule, and the aggregate and associated products could be considered
hazardous wastes under the derived-from rule (40 CFR 261.3(c)(2)(i)).
The Agency is considering providing tailored standards for LWAK
dust that are equivalent to those being proposed for CKD. Under that
scenario, LWAK dust would not be a hazardous waste when it is
reintroduced to the production process, recycled, or used for
beneficial purposes other than agricultural use. With little or no LWAK
dust disposed, it may be unnecessary to apply the disposal conditions
for CKD to LWAK dust. The Agency, however, solicits comment on the
appropriateness of applying all proposed provisions for CKD to LWAK
dust. Accordingly, EPA solicits information on: (1) The chemistry of
aggregate dust and sludges from LWAKs that burn and do not burn RCRA
hazardous waste (both total and leachable concentrations of toxic
metals); (2) potential danger to human health and the environment posed
by the management of LWAK dust and sludges; and (3) the current and
potential utilization of LWAK dust and sludges.
3. Use of CKD in Removal and Remediation Actions
In some situations CKD has been used safely and beneficially to
absorb and stabilize hazardous wastes, oily wastes,
[[Page 45656]]
and sludges. When used to stabilize or solidify wet wastes, CKD reacts
very much like Portland cement, especially when silica (sand) is
present. This reaction serves to chemically immobilize any toxic metals
present in both the CKD and the waste. Depending on the nature of the
waste and how much CKD is used, the appearance of the final product can
be anything from a monolithic slab to a dried sludge.
Federal On-Scene Coordinators (OSC's--see 40 CFR part 300) have
used CKD on a variety of emergency response sites since the inception
of the Superfund removal program. After the CKD is thoroughly mixed
with waste, the mixture is usually transported to an off-site disposal
facility. However, significant amounts of CKD/waste mixture may be left
on site after a removal action is complete. This can occur when CKD is
used to treat large amounts of low hazard sludge in open lagoons, large
amounts of waste-water, or large amounts of minimally-contaminated
soil.
In all cases, the OSC ensures that the immediate threat has been
abated. If an OSC must leave CKD on-site after the completion of the
removal action, he or she will conduct post-treatment sampling and
analysis to ensure that the constituents of concern have been
immobilized and the mixed material will not pose a threat to human
health or the environment.
CKD is also used to solidify Sewage Treatment Plant (STP) sludge
and to stabilize oily sludges and other non-hazardous wastes. Treatment
of sewage sludge is currently regulated under the provisions of 40 CFR
part 503. In most cases, the volumes involved are small and the CKD is
thoroughly mixed with the waste to ensure effective treatment.
Accordingly, EPA is proposing that nothing in today's rulemaking would
prevent, restrict, or regulate the beneficial use of CKD as a
stabilizer or solidifier during RCRA cleanups under sections 3004(u),
3004(v) and 3008(h), Superfund response actions that are carried out in
accordance with the requirements of 40 CFR part 300--the National Oil
and Hazardous Substances Pollution Contingency Plan (NCP), or when the
EPA Region or, in an authorized State, the State agency, finds that the
use of CKD in remediation is protective of human health and the
environment. By statute or regulation, CERCLA and RCRA cleanups must be
protective of human health and the environment. Therefore, use of CKD
in these situations would satisfy the protectiveness requirements of
RCRA Subtitle C. Such use would fall within the general exemption for
beneficial uses, but to avoid any uncertainty with regard to remedial
uses, a specific exemption is also being proposed.
J. Final Rule Effective Date
EPA is today proposing that the record-keeping, closure and post-
closure planning, CKD listing, agricultural application standards, and
fugitive dust emission standards become effective 90 days after
publication of the final rule in the Federal Register. The remaining
criteria, including landfill design, ground-water monitoring,
corrective action, and financial assurance requirements would become
effective 24 months after their promulgation.
EPA is proposing to make the record-keeping, closure and post-
closure planning, CKD listing, agricultural application standards, and
fugitive dust emission standards effective 90 days after publication
because these requirements can be implemented within this time frame
and an early effective date would be more protective of human health
and the environment. First, the planning and record-keeping
requirements are self-implementing and, thus, lend themselves to a more
immediate effective date. Second, 90 days is the standard amount of
time provided by EPA to implement hazardous waste listings under RCRA
Subtitle C. Third, laboratories capable of testing CKD are readily
accessible, so significant additional capital would likely not be
required to test CKD or implement today's proposed agricultural
application standards. Moreover, EPA believes that significant
additional capital is not required to fund facility changes needed to
implement today's proposed fugitive dust controls, such as the
compaction and daily cover requirements for CKD landfills. The Agency,
however, solicits comment on whether there are technical factors which
make the 90 day period for implementation of today's proposed fugitive
dust emission standards difficult to comply with.
The 24 month effective date would be limited to those requirements
that include interactions with or determinations by the EPA Regional
Administrator (or the State, in authorized States), including landfill
design, ground-water monitoring, corrective action, and financial
assurance requirements. EPA believes the proposed 24 month period would
provide persons managing CKD waste sufficient time to perform the
studies and other actions (e.g., conduct a karst inventory, install
ground-water monitoring wells, implement corrective action measures)
necessary to bring their facilities into compliance.
EPA today is also distinguishing between those CKD landfill (CKDLF)
units that stop receiving CKD waste prior to the date of today's
proposed rule and those that stop receiving CKD waste in the window
between the date of today's proposed rule and the effective date of the
final rule. CKDLFs in the former category will remain outside the scope
of today's proposed rule. EPA, however, is today proposing that CKDLFs
in the latter category have a final cover installed according to
provisions specified today under Sec. 259.50. The Agency is proposing
that the final cover must be installed within six months of the last
receipt of CKD waste or the unit will be subject to all of the
requirements of part 259--Management Standards for Cement Kiln Dust
Waste.
EPA has decided to distinguish between the two categories of closed
CKDLFs for several reasons. First, the Agency does not intend to
include within the scope of today's rulemaking inactive CKDLFs that
stopped receiving waste prior to the date of today's proposed rule.
Second, the Agency believes that some regulatory requirements for
CKDLFs that stop receiving waste between the date of today's proposed
rule and the effective date of the final rule would help prevent
releases of CKD waste. Today's proposed cover requirement would
restrict the introduction of rainwater and surface water into the CKDLF
unit, thereby limiting the production of leachate. If closed without
the benefit of a cover, the CKDLFs would continue to be exposed to
precipitation and wind, which could result in the increased production
of leachate and fugitive dust.
V. Subtitle C Backup Standards
In developing the Subtitle C standards that would apply to CKD that
is mismanaged (or ``backup standards''), EPA, consistent with the CKD
regulatory determination, scrutinized specific RCRA Subtitle C
components to develop a tailored approach for CKD generated from non-
hazardous waste burning kilns, and non-characteristically hazardous CKD
from kilns that burn RCRA hazardous wastes.
A. Subtitle C Requirements for Hazardous CKD Waste
EPA is proposing that persons managing CKD that fail to comply with
the performance standards or the technical standards proposed today
under 40 CFR part 259 shall be subject to: (1) The provisions
applicable to generators of hazardous waste (40 CFR part 262); (2) the
EPA administered waste permit program proposed today in
[[Page 45657]]
Sec. 270.68; (3) RCRA Subtitle C imminent hazard Sections of Subpart A
(Secs. 264.4 and 265.4); (4) the following Sections of subpart B
(General Facility Standards): Secs. 264.11 and 265.11 (Identification
number), Secs. 264.12 and 265.12 (Required notices), Secs. 264.14 and
265.14 (Security), Secs. 264.15 and 265.15 (General inspection
requirements), Secs. 264.16 and 265.16 (Personnel training), and
Secs. 264.19 and 265.19 (Construction quality assurance program); (5)
RCRA Subtitle C manifest, recordkeeping and reporting requirements
(subpart E--40 CFR parts 264 and 265); and (6) all applicable
provisions for the management of CKD proposed in today's rule under 40
CFR part 259. EPA believes the provisions of parts 264 and 265 that are
not included in today's proposed rule (e.g., subpart W--Drip Pads)
appear to be either not relevant to CKD management or are already
covered by standards proposed today under part 259. These requirements
operate in lieu of requirements in 40 CFR parts 263-265, and 268 except
where portions of those subparts are specifically cross-referenced.
1. 3004(x)--Special Characteristics
Section 3004(x) of RCRA authorizes EPA to modify certain Subtitle C
requirements ``to take into account the special characteristics of such
wastes, the practical difficulties associated with implementation of
such requirements, and site-specific characteristics * * * so long as
such modified requirements assure protection of human health and the
environment.'' Accordingly, the Agency is today proposing to suspend
land disposal restriction requirements (LDRs) under RCRA sections
3004(c), (d), (e), (f), and (g); minimum technology standards under
RCRA section 3004(o); and facility-wide corrective action requirements
under section 3004(u) for the following reasons. First, as long as CKD
is disposed according to the technology-based standards EPA proposes
today, the Agency considers such controls protective of human health
and the environment. Therefore, requiring treatment in accordance with
land disposal restrictions would not be necessary. Second, as explained
in the background documents to today's rule, the minimum technological
requirements under section 3004(o) for Subtitle C landfills (e.g.,
double liners; two leak detection systems) would not provide
significant incremental benefits over the technology-based landfill
design standards proposed in today's rule, and would add to the
practical difficulties associated with implementation of such
requirements. The technology-based standards proposed in today's rule
for CKD landfills include a composite liner, leachate collection
system, and daily cover. A second liner and leachate collection system,
which are required for hazardous waste landfills under subpart N of 40
CFR part 264, are unnecessary. EPA believes the technical record
supporting today's proposed standards demonstrates that today's
proposed technology-based standards are sufficient to protect human
health and the environment. The technology-based standards proposed
today can be waived, but compliance with today's proposed performance
standards means the alternative CKD landfill design is protective of
human health and the environment. Third, as explained above, EPA
believes that it is inappropriate to impose a requirement for facility-
wide corrective action for old CKD disposal units, and that reliance on
RCRA section 7003 or CERCLA sections 104 and 106 should be adequate to
address any substantial threats to human health and the environment
(see Section IV.A.7.--Corrective Action).
2. Facility-Wide Corrective Action Requirement
EPA invites comment on the option of requiring facility-wide
corrective action at facilities that fail to maintain the terms of
today's proposed rule. Under this option, these facilities would be
required to address past and potential releases of hazardous waste and
hazardous constituents at their facilities, including from solid waste
management units not covered by today's proposed rule. Old cement kiln
dust piles at CKD facilities are solid waste management units. Based on
the 113 cement manufacturing facilities that were active in 1990, EPA
estimates that there were 740 inactive CKD disposal piles nationwide
and that approximately 90 million metric tons of CKD were stored in
these piles. A complete description of this study is available from the
docket in Chapter 7 of the Technical Background Document on Groundwater
Controls at CKD Landfills. In addition, 11 out of 13 ground-water
damage cases, which form the basis of the CKD regulatory determination
and today's rulemaking, involve releases of toxic constituents from old
inactive CKD disposal piles. Given the number of CKD disposal units and
volume of associated CKD waste nationwide, the potential facility-wide
corrective action responsibilities are substantial. Under this option,
cement kilns that do not operate under the terms of today's proposed
rule would fall into the universe of approximately 3500 facilities that
are obligated to undergo RCRA facility-wide corrective action if
necessary to protect human health and the environment. This universe
presently includes approximately 18 cement manufacturing facilities
that burn hazardous waste.
The 3500 facilities currently required to undergo facility-wide
corrective action differ greatly in the amount and complexity of
environmental contamination and site conditions. To accommodate this
diversity, the corrective action program advocates flexible, site-
specific approaches to corrective action. For example, although all
facilities are ultimately held to final facility cleanup, EPA's current
program management emphasis is on source control and protection of
human and environmental receptors. If facility-wide corrective action
were required, CKD facilities subject to corrective action would not
necessarily be required to remove old piles. At many facilities, this
type of activity would be prohibitively expensive and technically
impracticable, and other remedies, such as emplacement of wind and
water erosion controls, installation of ground-water removal and
containment systems and supply of alternate drinking water supplies if
necessary, would be more appropriate. The corrective action program can
also accommodate technical and cost limitations by phasing in remedies.
For more information on the flexibility inherent to the corrective
action program, (see 61 FR 19432, May 1, 1996--Corrective Action for
Releases From Solid Waste Management Units at Hazardous Waste
Management Facilities).
EPA remains concerned about the cost implications if the
flexibility provided by RCRA section 3004(x) is not fully exercised.
Imposing additional LDRs or the landfill design requirements specified
in RCRA section 3004(o) would create substantive compliance burdens on
the regulated community. Corrective action requirements would also
increase costs, although as discussed above, that program allows the
use of cost-saving measures. The Agency's regulatory determination
under RCRA section 3001(b)(3)(c) that additional control of CKD is
warranted was based on a balancing of the factors specified under RCRA
section 8002(o), including cost. That determination assumed that any
regulation imposed under RCRA could be designed so as to limit the cost
burden while regulating the risks of concern. While the determination
under RCRA section 3004(x) is separate from that under RCRA section
3001(b)(3)(c), and is based
[[Page 45658]]
on somewhat different factors, EPA would likely re-evaluate the
underlying regulatory determination if RCRA section 3004(x) were not
interpreted to allow the degree of modification proposed today. The
Agency, however, interprets RCRA to provide the degree of flexibility
proposed today and views the resulting regulatory system as fully
consistent with its regulatory determination. EPA seeks comment on this
option in general and on the use of facility-wide corrective action
authority for CKD that is mismanaged. EPA seeks comment in particular
on likely cost, incurred as a result of facility-wide corrective
action, taking into account the flexibility that the corrective action
program allows.
3. Manifest, Recordkeeping, and Reporting Requirements
EPA is proposing in today's rule that manifest, recordkeeping, and
reporting requirements established in parts 262, 264, and 265 apply to
hazardous cement kiln dust that is subject to provisions proposed under
part 266-subpart I. The principal purpose of the manifest system is to
track hazardous waste from its point of generation, through its trip
with the transporter, to final disposition off-site at a treatment,
storage, and disposal facility. Part 262 also contains general
requirements for facilities that manage hazardous waste on-site.
Subpart E of parts 264 and 265 specifies requirements concerning the
return of the manifest to the facility which generated the waste. These
requirements form the information loop designed to assist the CKD waste
generator, who is responsible for ensuring that hazardous CKD waste
actually arrives at the intended facility for disposal.
Subpart E of parts 264 and 265 also includes requirements for
recordkeeping and reporting. The purpose of these requirements is to
ensure that the regulated community complies with hazardous waste
regulations by providing the enforcement agency with sufficient
information to monitor facility operations. Together with the manifest
system, these requirements are designed to minimize the likelihood of
damage case incidents resulting from improper tracking and waste
disposal. In addition, the Agency believes that the various records,
reports, and signatures of transporters, treaters, and disposers are
necessary to allow enforcement officials to assign responsibility and,
ultimately, liability in cases where problems arise.
B. Implementation of Part 259 and RCRA Subtitle C Backup Standards
Today's proposed standards for the proper management of CKD are
contained in part 259 of the RCRA Subtitle D regulations. Subtitle D of
RCRA establishes a framework for Federal and State cooperation in
controlling nonhazardous solid wastes. As discussed above, so long as
CKD is managed according to the standards of part 259, CKD would be
managed in a way that is protective of human health and the environment
and would not be considered hazardous waste. In proposing standards
under part 259, EPA is providing minimum standards for protecting human
health and the environment from the hazards of CKD. The actual planning
and direct implementation of the standards under part 259, however,
remain outside the RCRA Subtitle C framework, so long as a facility
remains in compliance with the standards and thereby maintains
compliance with today's proposed rule.
As discussed earlier, EPA is today proposing that the EPA Regional
Administrator (or the State, in authorized States) be allowed to review
and consider alternative CKD landfill designs and make determinations
whether or not they meet today's proposed performance standards. The
performance standards in today's proposed rule are structured to allow
flexibility to consider numerous location specific factors in tailoring
facility requirements.
Similarly, EPA is also proposing that facility plans for ground-
water monitoring, corrective action, closure and post-closure care, and
financial assurance be reviewed and approved by the EPA Regional
Administrator (or the State, in authorized States). Because EPA does
not directly regulate non-hazardous solid waste under RCRA, today's
proposed rule would not create enforceable requirements for CKD
management, but only conditions for avoiding Subtitle C regulation.
However, EPA expects that when States adopt the part 259 standards they
will likely adopt them, not only as conditions, but also as directly
enforceable requirements in Subtitle D programs. In that case, the
Subtitle D program would be the primary means for regulating CKD.
In authorized States, EPA anticipates that there will be a high
degree of cooperation between State RCRA Subtitle D programs (which
will most likely implement the part 259 standards) and State RCRA
Subtitle C programs. For example, because failure to comply or take
appropriate corrective action within the time frames proposed today
under Secs. 259.41, 259.44, 259.45, 259.46, and 259.47 to ensure
compliance with any of the standards proposed today under part 259
would mean that the CKD is mismanaged, and considered a hazardous
waste. If a State uses its RCRA Subtitle D program to conduct
inspections or oversight of cement kilns, violations of the standards
and/or failure to take appropriate corrective action within the
specified time frames should be reported to the RCRA Subtitle C
program, as well.
1. Enforcement
Although the Part 259 standards proposed today would likely be
adopted as a matter of State law, Federal inspection authority would
still be available for facilities regulated under those standards.
Because significant violations of the standards would constitute
mismanagement of CKD and would result in designation of such CKD as
hazardous waste, EPA (as well as State RCRA Subtitle C programs) would
have authority to inspect such facilities to determine whether they
were handling hazardous waste (i.e., mismanaged CKD waste). In today's
proposed regulatory structure EPA has included the list of violations
that would cause CKD to be designated as hazardous waste in Sec. 261.4
(Exclusions). In this section the Agency has clarified that all CKD
managed in compliance with today's proposed Part 259 standards remains
a non-hazardous waste. CKD becomes a listed hazardous waste if it fails
to comply with the provisions of Sec. 261.4(b)(8)(ii)(A) and (B) which
are described below. Thus, if the person CKD waste is managing CKD
inconsistently or in a manner that does not comply with the Part 259
standards, it would be subject to Federal enforcement under regulations
proposed today in Sec. 261.4(b)(8)(ii), to compel compliance with RCRA
Subtitle C requirements proposed today in Part 266. EPA solicits
comment on whether it would be more appropriate to list the provisions
in another section of the Code of Federal Regulations such as
Sec. 261.3 (Definition of Hazardous Waste).
In general, EPA believes that facilities should not necessarily be
fully subjected to RCRA Subtitle C for every violation of today's
proposed management standards. Therefore, EPA distinguishes between
significant violations which should cause the facility to be regulated
under RCRA Subtitle C, and other violations which should not have that
result if they are promptly corrected. Proposed Sec. 261.4(b)(8)(ii)(A)
enumerates the ``egregious'' violations that would trigger RCRA
Subtitle C regulation immediately which would include: (1) Failure to
make any applicable demonstration requirements for new CKD landfills as
specified under
[[Page 45659]]
Sec. Sec. 259.11(a), 259.12(a), 259.13(a), 259.14(a), 259.15(a) and
259.16(a); (2) failure to manage CKD destined for sale or beneficial
use in a suitable containment structure, as specified under
Sec. 259.20, within two years after the effective date of the final
rule, unless granted approval by the EPA Regional Administrator (or the
State, in authorized States) under Sec. 259.20(c) to implement
alternative measures for fugitive dust control; (3) failure to cover or
dispose of CKD in a conditioned state by 90 days after the effective
date of the final rule, as specified under Sec. 259.22, unless granted
approval by the EPA Regional Administrator (or the State, in authorized
States) under Sec. 259.22(d) to implement alternative measures for
fugitive dust control; and (4) failure to install a composite landfill
liner or ground-water monitoring system, as specified by Secs. 259.30
and 259.41, by two years after the effective date of the final rule,
unless granted approval by the EPA Regional Administrator (or the
State, in authorized States) for a unit design under the provisions of
Sec. 259.30(h), or a finding is made of no potential for migration
under Sec. 259.40(b); (5) failure to undertake appropriate corrective
action within the time frames specified under Secs. 259.41, 259.44,
259.45, 259.46, and 259.47; and (6) failure to comply with any
requirement identified in a notice received from the Regional
Administrator (or State) because of repeated violations of Part 259,
other than those specified in subparagraphs (1) through (5) of this
paragraph.
Under proposed Sec. 261.4(b)(8)(ii)(A)(7), EPA will also consider
repeated violations of Part 259's lesser requirements as a significant
violation. Under this provision, if EPA determines that a person
managing CKD waste repeatedly violates one or more lesser requirements
under Part 259, the Agency can send notice to that person informing him
or her that the next violation of such lesser requirements will
constitute a violation of Sec. 261.4(b)(8)(ii)(A), thereby causing any
managed CKD to be considered mismanaged and a hazardous waste. EPA
believes this provision is warranted because it provides the
appropriate incentive for facilities to comply with all of Part 259
requirements, including notice and recordkeeping requirements.
In proposed Sec. 261.4(b)(8)(ii)(B), violations of any standards of
Part 259 other than those listed in Sec. 261.4(b)(8)(ii)(A), will only
trigger Subtitle C regulation if the person managing CKD waste fails to
comply with those standards within 30 days of receiving a written
notice of non-compliance from the Regional Administrator (or State).
This provision gives the regulatory agency an intermediate enforcement
response mechanism for violations of lesser Part 259 requirements that
have not risen to a level that would trigger notice under
Sec. 261.4(b)(8)(ii)(A)(7).
As an alternative to allowing 30 days after receiving a written
notice, EPA solicits comments on adopting a minimum period (for
example, 90 days) to correct violations as a matter of enforcement
policy. Under the enforcement policy approach, EPA would generally not
commit to take any enforcement action that would result in RCRA
Subtitle C regulation for a period of 90 days after the date of
violation, unless there were unusual or aggravating circumstances. If
the violation is corrected in that period of time (or, in the case of a
violation that cannot be corrected, if steps are taken to prevent
recurrence), EPA would not take enforcement action.
Under the regulatory approach, if a State adopted today's proposed
approach, EPA would not have jurisdiction to bring an enforcement
action for a lesser violation (that is, a violation not listed in
Sec. 261.4(b)(8)(ii)(A)) until 90 days had passed from the date of
violation. Under the enforcement policy approach, EPA would have
jurisdiction to bring an enforcement action, but would commit not to do
so. EPA's enforcement policy would not bind the State, but EPA would
encourage States to adopt a similar approach. (In this respect, the two
approaches are similar: if EPA adopted today's proposed approach, it
could not preclude a State from adopting regulations that did not allow
the 90-day window to correct lesser violations. 36
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\36\ Under either version, today's proposed rule would provide
the opportunity to implement corrective action for releases to
ground water. An exceedance of ground-water standards by itself
would not cause be considered mismanaged; only if a person managing
CKD waste failed to meet the corrective action requirements in the
rule would it become subject to Subtitle C regulation.
---------------------------------------------------------------------------
EPA seeks comment on these two approaches as well as on the general
approach of distinguishing between lesser and egregious violations. In
particular, EPA asks commenters to address the issues of regulatory
jurisdiction, appropriate incentives to discover and correct
violations, what constitutes egregious and lesser violations (e.g.,
whether certain paperwork violations, such as the failure to notify the
regulatory authority of a violation, should be considered egregious),
and the handling of cases where violations are discovered well after
they occurred. The Agency also seeks comment on the question of whether
or not the proposed enforcement structure, with the two regulatory
categories of egregious and lesser violations, provides an incentive
for persons managing CAD waste to inform the Regional Administrator of
violations. If not, the Agency seeks comment on alternative structures;
for example, on whether there is a category of violations intermediate
between egregious and lesser. Additionally, the Agency also seeks
comment on the proposed 90 day time frame to correct lesser violations
before CKD is considered mismanaged.
As with all environmental issues, citizens are encouraged to be
involved. Where citizen's bring a concern to EPA's attention, the
Agency will respond on a case-by-case basis. In addition, RCRA
authorizes citizens to enforce requirements pursuant to section
7002(a)(1)(A): ``any person. * * * to be in violation of any permit,
standard, regulation, condition, requirement, prohibition, or order
which has become effective pursuant to this Act''. This provision
allows citizens to enforce both Subtitle C and Subtitle D requirements.
Therefore, citizens could commence a civil action to enforce the
Subtitle C requirements applicable to CKD that is not managed in
compliance with today's proposed Part 259 standards.
Where a violation occurs that can be corrected, the Agency believes
a person managing CKD waste who promptly corrects the problem should
not necessarily be subjected to hazardous waste requirements on a
permanent basis. In some cases, the nature of the violation may be such
that it only affects a distinct batch of waste. For example, if a
person managing CKD waste failed to manage a particular truckload of
CKD according to the transportation requirements proposed today in Part
259, that truckload would become non-exempt and would have to be
managed as a hazardous waste (e.g., manifested and sent to a landfill
meeting the tailored Subtitle C requirements of Part 266 for final
disposal). However, if the practice did not continue, the person
managing CKD waste would not have to manifest other shipments or have
the facility become permitted under Subtitle C. Other types of
violations could result in the CKD becoming subject to Subtitle C
generally.
2. Removal of a Hazardous Waste Designation
EPA believes that in some cases it may be appropriate for CKD that
has been mismanaged to be again
[[Page 45660]]
considered non-hazardous waste. For example, if a person managed CKD
waste in a landfill that released metals enough to raise levels in
ground water above appropriate MCLs, but later repaired the landfill
and did not have other violations of the standards, requiring a RCRA
Subtitle C permit might not be warranted. For these cases, EPA today
proposes a procedure in Sec. 266.121 under which the designation as
hazardous waste would be removed. Under this process, if any CKD waste
becomes mismanaged (i.e., loses the exclusion under Sec. 261.4(b)(8))
and becomes subject to Sec. 266.120, the person managing such waste may
apply to the Regional Administrator (or the State, in authorized
States) for removal of the hazardous waste designation for such CKD.
The application must include: (1) A statement that the CKD waste is now
being managed in accordance with Sec. 259; (2) a statement explaining
the circumstances of the non-compliance; and, (3) a demonstration that
the non-compliance is not likely to recur and that removal of the
hazardous designation would not pose a threat to human health and the
environment. The Regional Administrator may reinstate the
Sec. 261.4(b)(8) exclusion if the Regional Administrator finds that the
person managing CKD waste has satisfactorily explained the
circumstances of the non-compliance, has demonstrated that the non-
compliance is not likely to recur and that removal of the hazardous
waste designation will not pose a threat to human health or the
environment. The Regional Administrator may reinstate the
Sec. 261.4(b)(8) exclusion with additional conditions if the Regional
Administrator finds that such additional conditions are necessary to
ensure protection of human health and the environment.
Removal of the hazardous designation is not automatic, but the
Agency is today proposing that if the Regional Administrator does not
take action on the application within 60 days, then the application for
removal of the hazardous waste designation is deemed granted,
retroactive to the date of the application. However, the Regional
Administrator may terminate a removal (i.e., a reinstatement of the
Sec. 261.4(b)(8) exclusion) by default under this subsection if the
Regional Administrator finds that the removal of the hazardous waste
designation is not appropriate based on analysis of the factors
included in the application.37 Today's proposed approach is
patterned on that adopted in the conditional exemption for military
munitions, promulgated February 12, 1997 (see 62 FR 6637-38, February
12, 1997, Military Munitions Rule: Hazardous Waste Identification and
Management; Explosives Emergencies; Manifest Exemption for Transport of
Hazardous Waste on Right-of-Ways on Contiguous Properties; Final Rule).
EPA solicits comment on whether this procedure should be provided for
CKD, and under what circumstances (and for what violations) it should
or should not be available. For example, EPA would want to assure that
the procedure could not be used repeatedly by a person managing CKD
waste who was making no serious effort to comply until violations were
called to its attention by inspectors.
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\37\ If a person managing CKD waste submits a petition for
reinstatement that is subsequently revoked, it would be Agency
policy to consider such a default reinstatement to be prospective;
that is, beginning at the point the decision is made.
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EPA notes that releases from a CKD disposal unit do not, under
today's proposed rule, automatically constitute a violation of the Part
259 standards. If the unit was designed and constructed in accordance
with the design requirements, but a release nevertheless occurs, the
CKD remains exempt so long as it complies with the corrective action
requirements in the Part 259 standards. In implementing today's
proposed rule in authorized States, EPA anticipates there will be a
high level of cooperation between State Subtitle D and State Subtitle C
programs. Based on conversations with State environmental
representatives, the Agency anticipates that State D programs will
generally take the lead in assuring compliance with today's proposed
standards by conducting inspections of CKD landfills and their
associated facility operating records. If a violation of today's
proposed standards is documented as a result of a State inspection, or
a facility reports to the State that a release of contaminants to the
environment has occurred, under provisions of Sec. 259.46, today's rule
would allow persons managing CKD waste 90 days to assess corrective
measures. Under Sec. 259.47, the person managing CKD waste must select
a remedy within 90 days of completing the assessment, and specify a
schedule for initiating and completing remedial activities. Under
regulations proposed today in Sec. 259.47(e), the State would have
flexibility to set an alternative schedule for compliance.
Once a State program makes a final determination of non-compliance,
(that is, after allowing a minimum of 270 days from the date of
violation or notification of the State for the person managing CKD
waste to begin implementation of corrective measures, the State program
director makes a determination that a person managing CKD waste has
mismanaged CKD), the CKD managed at such a facility would be hazardous
waste, and subject to the proposed provisions of Part 266. Accordingly,
responsibility for implementation and enforcement of the provisions of
today's rule shifts to the hazardous waste program authority (either
the EPA Regional Administrator or, in an authorized State, the State
Subtitle C program). The EPA Regional Administrator (or the State, in
authorized States) would review and approve Subtitle C permits under 40
CFR 270.68, assure compliance with the hazardous waste generator
requirements of 40 CFR Part 262, and assure compliance with the
hazardous waste manifest, recordkeeping, and reporting requirements of
40 CFR Parts 264 and 265.
3. Alternative Approach to Structuring the Performance Standards
Today's proposed standards are generally written in the form of
performance standards. In complying with the performance standards, a
person managing CKD waste would have to develop an approach, make a
demonstration to the Regional Administrator (or the State in authorized
States) that the intended approach will achieve today's proposed
performance standards, and receive approval by the regulatory authority
prior to implementing the approach. Representatives from the cement
industry have suggested an alternative regulatory structure in which
the Agency would establish a general performance standard to be
achieved by the person managing CKD waste without a requirement that
the approach receive prior approval by the Regional Administrator. The
Agency seeks comment on the appropriateness and specifics of such an
approach.
Stakeholders have expressed concerns about the industry's suggested
alternative structure regarding the uncertainty of the public
participation process, specifically about whether and how the affected
public would be able to participate in decisions made by persons
managing CKD waste regarding compliance with today's proposed
performance standards. EPA believes that the public has a vital role to
play in decisions that affect their health and the environment.
Additionally, when appropriate, the Agency has been supportive of self-
implementation because such an approach can lead to regulatory
compliance within a shorter time frame than might otherwise be
[[Page 45661]]
possible. Thus, EPA is soliciting comments on alternative regulatory
structures that would allow persons managing CKD waste to implement
pollution controls designed to meet the performance standards without
the procedural burden of seeking approval from the regulatory
authority. The Agency is interested in information on how such an
alternative structure would allow persons managing CKD waste to
demonstrate their design is adequate to meet today's proposed
performance standards, while ensuring opportunities for the public to
participate in the deliberations and decision making undertaken by the
persons managing CKD. EPA believes that a process which expeditiously
identifies and resolves compliance issues prior to construction is in
the best interest of all parties.
The Agency is aware of one such approach. In 1995, as part of its
proposed approach to establishing an enforceable agreement (see Section
II.C.2--Proposed Enforceable Agreement), the cement industry submitted
to EPA a draft plan for site-specific public participation. Their plan
was designed to allow self-implementation of the provisions of the
enforceable agreement with citizen input, but without the time-
consuming process of permitting (or seeking approval by the Regional
Administrator or the State). The industry's comment and appeal process
included the following elements: (1) Notification of citizens when a
person managing CKD has prepared a design plan and intends to submit a
certification to the regulatory authority that their proposed design
plan will meet a specific performance standard; (2) a 45 day comment
period in which the public could submit relevant comments to the
facility (for example, comments germane to the performance of the
proposed design); (3) preparation by facility representatives of a
document responding to the substance of all relevant comments; (4)
announcement by facility representatives of the availability of the
final design plan and comment response document; (5) opportunity for
appeal to the appropriate regulatory authority within 30 days after the
date of announcement of the final design plan; (6) arbitration by the
regulatory authority affording both the commenter and facility
representatives an opportunity to present their positions, and a final
determination by the regulatory authority, no more than 60 days after
facility representatives have filed a response to the commenter's
appeal on whether the commenter has demonstrated that the proposed
design plan would fail to provide for compliance with the performance
standard; and (7) opportunity for judicial review of the regulatory
authority's decision in federal district court.
Representatives of local citizen groups criticized this public
participation process as being inadequate, both structurally and
substantively. Their comments on the public participation process
include the following: (1) All significant decisions regarding design,
monitoring, and cleanup are left to facility owners and operators; (2)
public comments and appeal rights are limited in both time and scope;
(3) access to documents is limited only to the design plan and not to
other important information such as data used to support the design
plan, monitoring data, and inspection reports; and (4) involvement by
the regulatory authority's staff is limited to a 60 day time period and
consideration of comments specific to the design plan.
A second alternative regulatory structure would be similar to EPA's
approach proposed in today's rule, but would establish a time frame for
design approvals within which the regulatory authority must make a
determination of the appropriateness of the technical approach proposed
by the person managing CKD waste. A time frame of six months might be
sufficient, and would add a degree of certainty to the process of prior
approval. If the regulatory authority failed to take action within the
specified time frame, the proposed approach for controlling CKD waste
would be presumed adequate to ensure compliance with the performance
standard. The Agency is seeking general comment on these two
alternative regulatory structures and on other potential approaches to
protecting human health and the environment while minimizing procedural
burdens that could delay implementation of appropriate means of
controlling risks posed by CKD.
VI. Standards for CKD Used as a Lime Substitute
A. Summary
EPA is proposing to exclude from regulation under RCRA CKD that is
used as a liming agent on agricultural fields provided that such CKD
meet specified levels for concentrations of certain hazardous
constituents. As explained in Section II.D. (Beneficial Use of Cement
Kiln Dust) in this preamble, CKD is currently being used as a
substitute for agricultural liming agents. Liming materials are added
to agricultural soils to maintain optimum pH for crop production and
offset the effects of fertilizers that lower soil pH. EPA encourages
environmentally sound beneficial use of production process waste
streams, including CKD. However, the benefits associated with the
recycling of CKD must be balanced against the potential hazards which
the use of CKD in this manner may also present. CKD contains toxic
metals and chlorinated dioxins and furans which can, at high exposure
levels, present adverse human health effects. In an effort to determine
whether use of CKD for pH adjustment on agricultural soil presents a
potential threat to human health and the environment, the Agency
conducted an assessment of the risk to individuals from the use of CKD
as a liming agent. A summary of the risk analysis and results is
provided below. Further description of the risk assessment is presented
in the technical background document titled Risk Assessment for Cement
Kiln Dust Used as an Agricultural Soil Amendment in the docket for this
rule.
Based on the risk analysis, EPA calculated concentration limits
that are protective of human health for hazardous constituents in CKD
that is used as an liming agent on agricultural fields and home
gardens. The numerical limits derived from the exposure assessment
models are designed to protect human health and the environment from
reasonably anticipated adverse effects. The Agency calculated risk-
based protective limits for all hazardous metals and dioxins present in
CKD. By comparing the risk-based concentrations derived for each
constituent with data on the composition of CKD, EPA identified
constituents that may be present in CKD above levels that may pose risk
to human health. Those constituents are arsenic, thallium, lead,
cadmium and chlorinated dioxins and furans. EPA's analysis showed that
all other toxic constituents in CKD are present at concentrations that
are well below protective levels. Based on these findings, EPA is today
proposing to limit the concentrations of arsenic, thallium, lead,
cadmium and chlorinated dioxins and furans that can be present in CKD
that is used agriculturally for pH adjustment. In other words, EPA is
proposing standards to limit the concentrations of arsenic, thallium,
lead, cadmium, and dioxins that can be contained in CKD that is used as
a substitute for agricultural lime because the Agency's risk analysis
indicates that these compounds are present in CKD in
[[Page 45662]]
excess of levels that may pose risk to human health when CKD is applied
at rates necessary to attain the desired increase in pH. The Agency is
concerned that unregulated use of CKD as an agricultural liming agent
may cause adverse effects on human health.
B. CKD Agricultural Use Risk Assessment
1. Risk Assessment Methodology
This section describes the methodology used to evaluate human
health risk to individuals from use of CKD as an agricultural liming
agent. EPA's risk analysis evaluated exposures to metals and dioxin
congeners in CKD for the following receptor scenarios; farmer, fisher,
home gardener, and child of farmer. The assessment includes a
preliminary sensitivity analysis to identify risk-driving parameters, a
deterministic analysis to estimate central tendency and high end risk,
and a quantitative uncertainty analysis. Initial estimates of potential
risk from agricultural use of CKD were estimated using the
deterministic method, which produces point estimates of risk to
individuals based upon single values for input parameters (e.g., waste
stream characteristics, environmental fate and transport properties,
exposure assumptions, etc). The deterministic risk estimates for this
analysis were derived using a double high-end risk assessment
methodology. In this method, the input parameters are varied between
the central tendency (50th percentile) value and the high end (90-95th
percentile) value both individually and in combination of any two
independent variables to produce a series of point risk estimates. The
point estimate in which all variables are set at central tendency is
assumed to be the central tendency risk estimate and the highest risk
estimate for any combination of double-high-end variables is assumed to
be the high end estimate (approximately 95th percentile) of risk. High-
end risk descriptors are plausible estimates of the individual risks
for those exposed persons at the 90th percentile or greater end of the
risk distribution. High-end risk is intended to depict the risks that
are expected to occur in 10 percent or less of the exposed population.
The Agency also conducted a probabilistic analysis of uncertainty/
variability in support of the deterministic analysis. The Agency has
long acknowledged the importance of adequately characterizing
variability and uncertainty in fate, transport, exposure and dose-
response assessments for human health risk assessment as indicated in
EPA's May 15, 1997 policy memorandum on Use of Probabilistic Techniques
in Risk Assessment. The probabilistic analysis undertaken for this
analysis has been conducted in accordance with the guidance set forth
in the May 15, 1997 memorandum. The first step of the probabilistic
analysis is a sensitivity analysis using the deterministic methodology
to determine the risk-driving parameters. Results of the sensitivity
analysis are provided in the technical background document for this
assessment. After the risk-drivers are determined, the quantitative
uncertainty/variability analysis is conducted by performing a Monte
Carlo simulation by randomly varying the risk-driving parameters. A
more detailed discussion of parameters that were included in the Monte
Carlo analysis and selection of data distributions for each parameter
is provided in the technical background document describing the risk
assessment supporting this rule.
2. Human Health Criteria and Effects
The risk analysis uses chemical composition data collected and used
for the 1993 Report to Congress on CKD, the 1994 NODA on CKD and
background document supporting the 1995 CKD Regulatory Determination.
Individual constituents of concern evaluated in the assessment included
dioxins and the following metals: antimony, arsenic, barium, beryllium,
cadmium, chromium, lead, nickel, mercury, selenium, silver and
thallium. These constituents were evaluated based on chemical specific
health based levels established and/or verified by EPA using prescribed
methodologies for evaluating human effects data. The human health
toxicity benchmarks used in this analysis include Agency-verified oral
reference doses (RfDs) and reference concentrations (RfCs) for
noncancer effects and oral cancer slope factors (CSFs) and inhalation
unit risk factors (URFs) for carcinogenic effects. Agency-verified
RfDs, RfCs, CSFs, and the bases for these values are presented in the
EPA's Integrated Risk Information System (IRIS). The benchmarks for the
dioxin and furan congeners are based on the Toxicity Equivalent Factor
(TEF) for 2,3,7,8-tetrachlorodibenzo dioxin (TCDD2). The methodology
for calculating TEFs for dioxin and furan congeners is presented in the
1994 EPA publication entitled Estimating Exposures to Dioxin-Like
Compounds. (EPA publication number EPA/600/6-88/005Ca)
3. Agricultural Use Practice Assumptions
Agricultural use practices (i.e., application rate and frequency)
used in the analysis are determined based on chemical and physical
properties of soil and CKD that influence use of CKD agriculturally as
well as economic considerations that affect CKD use. The quantity of
liming material required per acre to raise the pH to an acceptable
level is determined by several factors including desired change in pH,
buffering capacity of the soil, chemical composition of the liming
agent and particle size of the liming material. When these factors are
considered, the rate of application is usually 2 to 5 tons per acre and
the application frequency is once every 2 to 5 years for all liming
agents, including CKD. EPA solicits comment on the appropriateness of
using this rate and frequency of application as assumptions in its
analyses.
4. Fate and Transport of Chemical Constituents in the Environment
The application of CKD as a liming agent is assumed to occur only
in areas with initial soil pH of less than 6 and areas that are near
active cement kilns generating large quantities of CKD. Based on these
criteria, three sites, Holly Hills, South Carolina, Alpena, Michigan,
and Ravena, New York were selected for modeling. Site specific
meteorologic and soil properties data from these locations were used in
both the deterministic and uncertainty analysis. While meteorologic
conditions were evaluated in the sensitivity analysis and were not
shown to be a primary risk driver, the three locations modeled
represent a range of meteorologic conditions.
The Agency relied on the following models to simulate movement of
pollutants into and through the environment. Speciation of metals in
CKD applied agriculturally was determined through MINTEQ modeling using
available site specific soil and meteorologic data identified for each
geographic setting. Equations developed by Jury, et al., were used in a
spreadsheet calculation model to determine contaminant loss from CKD
due to degradation, volatilization, leaching, and rainwater runoff of
dioxins and metals. The model tracks the average annual soil
concentration and the annual mass of contaminant volatilized for a
period of 100 years followed by 40 years of inactive use. While the
Agency assumed that CKD can be applied to a field over a period of 100
years, modeling indicates that the system will reach steady state
concentrations over a period of 40 to 50 years for persistent chemicals
such as
[[Page 45663]]
most metals and dioxins. The Universal Soil Loss Equation (USLE) as
modified by EPA's Offices of Solid Waste and Research and Development
was used to estimate soil erosion and overland transport of sediment
from agricultural fields amended with CKD across intervening areas to
nearby water bodies. Air emissions from CKD due to wind erosion were
estimated using methods and equations from EPA's Compilation of Air
Pollutant Emission Factors, Volume I: Stationary Point and Area
sources, Fifth Editions (commonly referred to as AP-42). Air dispersion
of particulates was modeled using the EPA's Industrial Source Complex
Short Term, version 3 (ISCST3).
5. Uptake of Contaminants in Plants and Animals
Plants may absorb contaminants through air-to-plant biotransfer and
through soil-to-plant uptake through the roots. Air-to-plant movement
of dioxins was estimated using constituent-specific biotransfer factors
specifically developed for dioxin congeners by EPA's Office of Research
and Development (ORD). Plant-to-soil bioconcentration factors were used
to account for root uptake of constituents from the soil. The
bioconcentration factors for metals were obtained from the assessment
conducted for EPA's Standards for the Use or Disposal of Sewage Sludge.
EPA recognizes that these biouptake factors were developed based on
field studies of sewage sludge application and pertain specifically to
sewage sludge. Uptake of metals is particularly sensitive to soil pH
and the degree of binding to the sludge matrix. The sewage sludge
values may not, therefore, be appropriate for evaluating plant uptake
of metals from CKD. The Agency requests comment on whether the use of
these biotransfer values is appropriate for assessing risks from
agricultural use of CKD. Biotransfer factors not available from the
sewage sludge assessment were obtained from the published literature.
Empirical correlations were used to estimate transfer of dioxins from
the soil to plant tissue using the methodology developed for dioxins by
ORD. Metals, dioxin, and furan concentrations in beef and dairy fed on
vegetation amended with CKD were estimated using constituent specific
beef and milk biotransfer factors available in the literature.
6. Receptor Scenarios and Exposure Pathways
Receptor scenarios evaluated for this assessment include farmer,
fisher, home gardener, and child of farmer. Exposure pathways evaluated
for each receptor scenario are as follows. For the child of farmer,
pathways evaluated include incidental ingestion of contaminated soil,
ingestion of plants grown on amended soil and ingestion of products
from animals raised on feed from CKD amended fields. Pathways evaluated
for the farmer include those evaluated for the child of farmer and, in
addition, direct inhalation of vapors and particulates during
application of CKD to the field. For the home gardener, pathways
include incidental ingestion of contaminated soil and ingestion of
plants grown on amended soil. Exposure from ingestion of contaminated
fish is evaluated for the fisher receptor scenario. The groundwater
exposure pathway (i.e., ingestion of contaminated groundwater) was not
evaluated for this analysis based on the results of the previously
conducted analyses of risk from storage and disposal of CKD waste.
Previous ground-water modeling results indicated limited potential for
the transport of constituents bound in a CKD matrix. Although new
ground-water modeling indicates that metals, including lead, barium,
beryllium, chromium, and cadmium, may be more mobile under highly
alkaline conditions, the Agency does not believe these conditions will
occur in CKD-amended soils. CKD is added to raise the pH of acidic
soils to neutral pHs. A pH range of 6.0-7.2 is optimal for most crops.
Highly acidic or highly alkaline soils, on the other hand, have been
associated with phytotoxicity and/or nutrient imbalance. Consequently,
highly alkaline conditions are unlikely to occur in CKD-amended
agricultural soils. Furthermore, the ground-water analyses conducted in
support of the Report to Congress and the Regulatory Determination
analyzed risks from the storage, management and disposal of CKD. Under
neutral pHs, the groundwater risks associated with the management of
large volumes of CKD in non-karst areas was estimated to be low. The
volume of CKD applied in agricultural soils is far less than the volume
typically managed in a disposal unit. Therefore, EPA believes that the
risks from the ground-water pathway will be negligible based on the
typical pH of CKD-amended soils and the limited volume of CKD applied
to soils.
The exposure factors used in this risk analysis are from the Draft
1996 Exposure Factors Handbook. This is one of the first EPA risk
assessments to use these factors in either a deterministic or
probabilistic analysis. Therefore, the Agency used conservative
consumption and exposure distributions in instances where there was
uncertainty regarding how the data presented in this document should be
used. The Agency specifically requests comment on the exposure factors
used in this analysis.
7. Lead Risk Assessment
The human health risk assessment conducted for lead is unique. The
primary indicator of exposures to lead is elevated blood lead levels.
Therefore, exposure to lead is estimated based on comparison of
predicted blood lead level in exposed individuals to a target blood
lead level. In addition, evaluation of lead exposure focuses
specifically on young children (birth to 7 years of age) because this
age group is known to be highly sensitive to lead exposure. Given the
unique nature of lead, EPA developed the Integrated Exposure Uptake
Biokinetic Model (IEUBK) to evaluate child lead exposure from birth to
age 7. EPA used the IEUBK model to assess lead risks from
agriculturally applied CKD. This model integrates lead exposures from
diet, soil, dust, drinking water, and air and considers elimination of
lead from the body to predict blood lead levels. For the CKD
agricultural use analysis for lead, estimates of risk to children are
determined by comparing total blood lead level estimated by the IEUBK
model with a threshold value of 10 g Pb/dL. Adverse health
effects from lead exposure have been observed to occur at or above this
level.
For this analysis, blood lead levels were estimated using the
default soil intake rates provided in the IEUBK model. Default IEUBK
soil ingestion rates differ from those used elsewhere in this analysis
to estimate risk from other hazardous constituents in CKD. Soil
ingestion rates used for lead are presented in Section 6.0 of the
technical background document. Soil ingestion rates used for other
constituents are presented in Section 5.0 of the background document.
With the exception of soil ingestion rates, EPA used the same model
inputs (e.g., constituent concentrations, dietary ingestion rates,
application rates) to estimate risks from exposures to both lead and
other hazardous constituents in CKD.
8. Ecological Risk and Phytotoxicity
The Agency did not conduct a separate assessment of potential
ecological risks or phytotoxic effects posed by use of CKD as a liming
agent on agricultural fields. Rather, EPA relied on the assessment
conducted by EPA's Office of Water for the Standards for the Use or
Disposal of Sewage Sludge (40 CFR Part 503 et al.) as a basis for
evaluating potential risks to ecological
[[Page 45664]]
receptors and/or toxic effects on plants resulting from land
application of CKD. For this analysis, the range of soil concentrations
for metals in soil estimated in the CKD risk analysis is compared to
the phytotoxicity and soil organism benchmarks reported in the
Technical Support Document for Land Application of Sewage Sludge--
Volume I (NTIS publication number PB93-110575). Values for ecological
benchmarks are only available for 4 constituents in CKD, lead, nickel,
chromium, and cadmium. Results of this analysis are provided in the
Risk Assessment for Cement Kiln Dust Used as an Agricultural Soil
Amendment in the docket for this rule. In summary, a comparison of
these ecological benchmarks to the constituent concentrations in CKD
amended soil estimated by the CKD risk analysis shows that the CKD soil
concentrations are well below these benchmarks in all cases. The Agency
requests comment on whether phytotoxicity and ecological risk are
adequately addressed by this analysis.
9. Risk Assessment Results
The results of the risk assessment show an estimated high-end
individual lifetime cancer risk of 3 x 10-5 due to arsenic
and an exceedance of the non-cancer effect threshold or hazard quotient
for thallium for a farmer and child of farmer consuming products from
animals raised on feed grown on CKD-amended fields. Based on these
findings, EPA believes there is a need to establish standards to
protect public health and the environment from adverse effects of
certain constituents that may be present in CKD used agriculturally.
C. Approach to Establishing Limiting Concentrations
1. Risk-based Approach--Proposed Limiting Concentrations for Cadmium,
Lead, and Thallium
The Agency used the exposure assessment modeling methodology
described above to establish constituent-specific numerical limits for
hazardous constituents (metals and chlorinated dioxins and furans) in
CKD that is used in lieu of agricultural lime. As a first step,
potential human health risks from exposure to hazardous constituents
were evaluated for specified exposure scenarios using the constituent
concentrations, toxicity data, exposure assumptions, soil property data
and fate and transport models outlined in the previous section. The
limiting concentrations for individual constituents were then derived
using a point estimate approach as follows. All application parameters
(rate, frequency, depth of incorporation) were set at constant at high
end values (i.e., values that are at the upper end of the distribution
of application practices). CKD was assumed to be applied over a period
of up to 100 years. The Agency believes this to be a reasonably
conservative assumption based on consultation with agricultural experts
knowledgeable in the use of soil amendments. All other variables (e.g.,
exposure parameters) were varied between central tendency and high end
values one or two at a time in order to obtain the highest risk value
for each hazardous constituent. The highest risk value was then used to
back calculate maximum constituent concentrations at which adverse
health effects from any single constituent do not exceed a
1 x 10-5 individual lifetime cancer risk or a non-cancer
hazard quotient of 1 for any potential human exposure route (e.g., air,
food chain, etc.). For lead the maximum constituent concentration was
back-calculated based on a target blood lead level of 10 g Pb/
dL.
EPA conservatively assumed a high rate and frequency of CKD
application (within the range of application rates and frequencies that
are considered to be agronomically viable) to set regulatory limits for
hazardous constituents in CKD. The Agency assumed that CKD application
will not exceed a high-end rate of 5 tons per acre every 2 years, and
that CKD may be applied continually over a period of 100 years. EPA
believes these assumptions ensure that limiting concentrations are
protective given standard agricultural practices used for application
and reasonably expected long term repeated applications of CKD.
Additionally, the Agency believes that establishing concentration
limits that are protective at plausible high end application practices
will make implementation of regulatory limits less burdensome on both
the regulated community and EPA. Use of high end application
assumptions allows the Agency to establish a single concentration that
is considered to be protective for all reasonably expected application
parameters.
As an alternative approach, the Agency could have established
limiting concentrations that would vary based on the rate and frequency
of CKD application. This approach would have resulted in higher
(i.e.,less stringent) cut-off concentrations in some cases, depending
on application practices employed. However, under this approach, the
Agency would have to impose tracking and recordkeeping requirements as
a means of ensuring compliance with limits that would vary based on
varying application rates. Such additional requirements would
significantly increase the complexity of the proposed regulations and
the implementation burden on the regulated community. By using
conservative assumptions regarding application practices, the Agency
will substantially reduce the recordkeeping burden associated with the
implementation of today's proposal. Furthermore, the Agency believes
that the constituent concentration limits so established will not
unduly restrict the beneficial use of CKD for agricultural purposes
(i.e., based on EPA's data, most CKD meets the proposed regulatory cut-
off levels). In selecting this approach, the Agency also considered the
fact that use of a less conservative methodology (in which application
parameters were set at central tendency values) would still result in
limits that, while higher or less restrictive, are still exceeded in
some CKD for these five constituents. In essence, use of the
conservative risk assessment methodology described above to establish
maximum regulatory constituent concentrations enables EPA to reduce the
recordkeeping and economic burden associated with regulation of
agricultural use of CKD but does not result in levels that are so
stringent that they prohibit substantial beneficial use of CKD as a
substitute for agricultural lime. For these reasons, EPA chose to
develop a single set of constituent concentrations that are protective
at high-end application rates. The Agency recognizes that this approach
represents a trade-off that favors reduction of recordkeeping and
reporting burden over establishment of less restrictive standards. The
Agency requests comment on the proposed approach.
Today's proposed rule assumes that CKD will be applied at rates
needed to attain the required pH adjustment and will not be applied in
excess of such rates. Based on consultation with agricultural experts,
review of the literature, and considering physical and chemical
properties of soil and CKD, EPA believes that application of 5 tons of
CKD per acre every 2 years constitutes the maximum rate of
agronomically viable application necessary to properly control pH in
agricultural soils. Therefore, EPA's analysis assumes that CKD use will
not exceed 5 tons per acre every two years. Given the inherent
limitations on the amount of CKD that can be applied beneficially for
the purpose of pH control, EPA is not proposing to impose
[[Page 45665]]
regulatory controls on the agronomically viable application of CKD.
However, agronomic use of CKD to control pH in excess of 5 tons of CKD
per acre every 2 years will be considered a form of waste disposal
subject to RCRA regulation, rather than a legitimate beneficial use
exempted under today's proposal.
As previously noted, a comparison between the risk-based limits
established by the Agency using the above methodology and the
concentrations of hazardous constituents known to be present in CKD
indicates that four metals, arsenic, thallium, lead and cadmium, may be
present in CKD at levels that pose unacceptable human health risk
(adverse health effects in excess of a 1 x 10-5 individual
lifetime cancer risk or non-cancer hazard quotient of 1 in certain
instances). Therefore, EPA is proposing to establish regulatory limits
for cadmium, lead, thallium, and arsenic in CKD that is applied to
agricultural soil for purposes of pH adjustment. EPA is proposing to
use the methodology described above to set protective limiting
concentrations for cadmium, lead, and thallium. EPA is proposing to use
a different methodology to establish a limit for arsenic, as explained
later in this section. The Agency is not proposing limits for those
constituents for which maximum concentrations in CKD are below
concentrations determined by EPA to be protective of human health.
The proposed risk-based concentration limits for cadmium, lead, and
thallium are: 22 mg/kg for cadmium, 1500 mg/kg for lead, and 15 mg/kg
for thallium. Under today's proposal, CKD that exceeds the proposed
concentration limits for these constituents cannot be used as a liming
agent on agricultural soils. Based on EPA's data on the composition of
CKD, most CKD meets the risk-based protective levels being proposed for
these metals and would therefore not be prohibited from agricultural
use based on the proposed limits.
2. Risk-Based Approach--Proposed Limiting Concentration for Chlorinated
Dioxins and Furans
The process used for setting risk-based limiting concentrations for
chlorinated dioxins and furans (hereafter referred to as dioxins) is
similar to that used for metals. However, unlike metals, dioxins are
comprised of multiple individual dioxin and furan congeners. Therefore,
in order to derive a single limiting concentration for purposes of this
regulation, the risks from individual dioxin and furan congeners were
estimated using the TEF methodology referenced above (see Section
VI.B.2--Human Health Criteria and Effects) and the risks from specific
dioxin and furan congeners were summed to produce a single
concentration in terms of 2,3,7,8-TCDD toxicity equivalents (TEQ).
Based on EPA's risk modeling using the methodology described above, the
estimated total indirect cancer risks for the farmer scenario from the
average North American soil background concentrations of dioxins in the
environment is approximately 1 x 10-5. The average TEQ
background concentration of dioxin and furan congeners in soil is 8
parts per trillion (ppt).
Therefore, to ensure that agricultural use of CKD does not pose
risks from dioxins in excess of a 1 x 10-5 individual
lifetime cancer risk, EPA used a target soil concentration of 8 ppt TEQ
to derive risk-based limiting concentrations of dioxins in CKD. The
Agency back-calculated maximum TEQ levels for dioxins in CKD used as a
lime substitute that, when mixed with soil, would result in dioxin
levels in soil levels at or below 8 ppt TEQ. For this analysis, the
distribution of congeners in CKD was assumed to be the same as the
congener composition or congener profile of background soil. This is
essentially a default assumption because, based on available data on
levels and distributions of dioxin congeners in CKD, there is no
``typical'' distribution of dioxin and furan congeners in CKD.
Additionally, consistent with the methodology used to develop limiting
concentrations for metals, EPA fixed all application parameters at
high-end values in setting limiting concentrations for dioxins. In this
manner, a limiting TEQ concentration for dioxins in CKD was established
so that when CKD is applied at high application rates and frequency,
soil concentrations do not exceed 8 ppt TEQ. Assuming high-end
application parameters, the maximum TEQ concentration of dioxins in CKD
that will result in soil concentrations at or below 8 ppt TEQ was
determined to be 0.04 parts per billion (ppb). Based on this analysis,
EPA is proposing to set protective limiting concentrations for dioxins
in CKD that is used as a liming agent at 0.04 ppb TEQ. Under today's
proposal, CKD that exceeds the proposed concentration limit for dioxins
cannot be used as a liming agent on agricultural soils. Based on
available data on dioxins in CKD, the Agency does not believe that the
proposed limiting concentrations will significantly restrict use of CKD
as a liming agent. EPA requests comment on the methodology and
assumptions used to develop the risk-based limiting concentration for
dioxins in CKD that is used as a substitute for agricultural lime.
3. Comparison to Agricultural Lime--Proposed Limiting Concentration for
Arsenic
The Agency is not proposing to use the limit derived for arsenic
using the risk-based methodology outlined above. Instead, EPA is
proposing an alternative limit for arsenic based on arsenic
concentrations found in commercially available agricultural liming
materials. Total arsenic concentrations in agricultural lime range from
< 1="" to="" 13="">38 Based on this information, EPA is
proposing a limiting concentration of 13 mg/kg for arsenic in CKD that
is applied agriculturally to adjust soil pH.
---------------------------------------------------------------------------
\38\ Kanare, H.M., 1997 Comparison of Trace Metal Concentrations
in Cement Kiln Dust, Agricultural Limestone, Sewage Sludge, and
Soil. Report to the American Portland Cement Alliance by
Construction Technology Laboratories, Inc., Skokie, Illinois. 15p.
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Use of the risk-based approach results in a cut-off level for
arsenic that is below concentrations typically found in agricultural
lime and is in fact at or below background concentrations for arsenic
in soils in many parts of the country. EPA believes that it is
impractical and illogical to prohibit the use of a CKD as a liming
agent if it contains levels of arsenic at lower concentrations than
agricultural lime because such use would not increase any risks faced
by anyone who uses CKD as a substitute for agricultural lime.
Agricultural limestone (aglime) is finely pulverized, naturally
occurring, relatively pure limestone or dolomitic limestone. Aglime is
added to agricultural soils to maintain optimum pH for crop production
and is needed to offset the effects of fertilizers that lower soil pH.
Aglimes are produced and sold throughout the United States. States
typically regulate aglime by setting standards for minimum calcium
carbonate equivalent and particle size but not for other properties
such as metal concentrations. Since CKD is used as a substitute for
aglime (i.e., it is used to control pH for production of crops), EPA is
proposing to use arsenic levels typically found in agricultural lime as
a basis for setting a regulatory limit for arsenic in CKD that is used
in lieu of agricultural lime. The Agency believes that this approach
provides a practical, common sense means of minimizing the risk from
arsenic used as an agricultural liming agent. The alternative would be
[[Page 45666]]
to effectively preclude the use of CKD as a liming agent without any
reduction in environmental risk. The Agency requests comment on its
proposed approach for setting regulatory limits for arsenic in CKD that
is used as a substitute for agricultural lime. EPA also requests
comment on whether it should consider setting limits for arsenic that
are based on existing background concentrations of arsenic in areas
where the CKD is applied.
4. Peer Review of the Risk Assessment
An external peer review of the agricultural use risk analysis and
the methodology used to establish protective constituent concentration
was conducted prior to publication of today's rule. The peer review was
conducted by the United States Department of Agriculture's W-170
Committee, which is comprised of nationally known experts on
agricultural use of soil amendments. Unfortunately, the Agency did not
have time to revise the assessment based on peer review comments prior
to publication of the CKD proposal. The committee's review is available
in the docket for this rule for public review and comment. The Agency
also requests public comments on all aspects of the risk assessment
including the pathways evaluated, exposure assumptions, assumptions
used regarding agricultural practices, etc.; and on all aspects of the
methodology used to establish protective levels for hazardous
constituents in CKD used agriculturally. EPA anticipates undertaking
revisions to the risk assessment based on recommendations received
through the peer review process as well as comments received from the
public. The Agency also requests information on other existing and/or
potential agricultural uses of CKD that may need to be evaluated. EPA
requests comment on whether CKD used for other agricultural purposes
should be subject to the same standards as those proposed for CKD used
as an agricultural liming agent.
D. Implementation of Controls for the Agricultural Use of CKD
In today's proposed rule, Sec. 259.17 defines agricultural use of
cement kiln dust as use of CKD as an agricultural lime substitute for
the purpose of amending the soil to optimize pH or to promote the
growth of crops or other foodstuffs. The Agency restricts this
definition of use to CKD produced for use by the general public and not
for the exclusive use of the owner or operator of the facility which
generates the CKD waste. EPA believes that when an owner or operator
applies CKD solely to his own land, the practice is actually disposal.
The Agency intends to ensure there is a high degree of confidence
that any CKD sold for purposes as an agricultural lime substitute
complies with today's proposed standards. Therefore, today's rule also
proposes that for CKD sold for agricultural use, the persons managing
CKD waste (e.g., the owner or operator of the facility which generated
the waste) shall place in the operating record a notation listing the
amount of CKD shipped as an agricultural lime substitute and a letter
of certification signed by a company representative verifying
compliance with the limiting concentrations specified under
Secs. 259.17(a) and (b). In today's rule, EPA is not proposing to
impose regulatory limits or recordkeeping requirements on the rate and
frequency of application of CKD used as an agricultural lime substitute
because the Agency believes that today's proposed standards are
protective across the range of anticipated, agronomically viable
application parameters.
Today's rule also proposes that CKD destined for agricultural use
be sampled and analyzed by the person managing the CKD waste whenever
such CKD waste is destined for shipment. Such CKD waste must be tested
prior to shipment to determine whether it has concentrations of toxic
constituents in excess of the limiting concentrations proposed in
Sec. 259.17(a). EPA believes that CKD waste destined for agricultural
use must be analyzed prior to shipment for the person managing the CKD
waste to determine whether or not such waste can be used for pH
adjustment. The Agency is not specifying a sampling frequency in
today's proposed rule. If the sampling frequency is less often than on
a daily basis, however, and subsequent analysis determines that the CKD
fails the test, then the Agency considers that all CKD transported for
agricultural use since the previous successful analysis to have been
mismanaged, and, therefore, would be hazardous waste absent
documentation otherwise.
E. Alternative Standard to Limit Chlorinated Dioxins and Furans in CKD
As part of EPA's development of air emission standards for the
Portland cement industry, the Agency has proposed operational and
monitoring methods for cement kilns that burn hazardous waste (see 61
FR 17358, Hazardous Waste Combustors; Revised Standards; Proposed Rule,
April 19, 1996 and 62 FR 24226, Revised Technical Standards for
Hazardous Waste Combustion Facilities; Proposed Rule, May 2, 1997) and
standards for hazardous air pollutants for cement kilns that do not
burn hazardous waste (see 63 FR 14182, March 24, 1998, National
Emission Standards for Hazardous Air Pollutants; Proposed Standards for
Hazardous Air Pollutants Emissions for the Portland Cement
Manufacturing Industry). These standards for air emissions include
uniform technology-based standards for chlorinated dioxins and furans,
and reflect the performance of Maximum Achievable Control Technologies
(MACT) as specified under the Clean Air Act.
To limit the emission of these compounds, EPA has proposed in both
rules a baseline air emission level for all cement kilns of 0.20 ng
TEQ/dscm of chlorinated dioxins and furans, or 0.4 ng TEQ/dscm, and
temperature at the inlet to the air pollution control device of less
than or equal to 400 deg.F. The Agency believes temperature control to
400 deg.F or lower is an appropriate baseline control at the air
pollution control device because: (1) The optimum temperature window
for surface-catalyzed formation of chlorinated dioxins and furans is
450-750 deg.F; and (2) Below 350 deg.F, kiln gas can fall below the dew
point which can increase corrosion in ESPs and fabric filters and
reduce performance of the air pollution control devices. Available air
emissions data from cement kilns show all but one data point of dioxins
and furans at or below 0.2 ng TEQ/dscm at the air pollution control
device when operating the device at temperatures less than or equal to
400 deg.F. Thus, EPA believes a standard of 0.20 ng TEQ/dscm, or 0.4 ng
TEQ/dscm and temperature at the inlet to the air pollution control
device of less than or equal to 400 deg.F is both reasonable and
readily achievable.
The Agency solicits comment regarding whether the emission
standards for dioxins and furans proposed for the cement industry are
adequate to control the formation of dioxins and furans on CKD destined
for agricultural use, and consequently whether dioxin and furan
standards for CKD used for agricultural purposes are necessary.
VII. Relationships Between This Action and Other Regulatory
Programs
A. Stormwater Regulations
As stated in its Regulatory Determination, the Clean Water Act,
through existing effluent limitations guidelines, NPDES permits, water
quality standards, and existing storm
[[Page 45667]]
water permits, provides considerable authority to control risks
associated with the contamination of surface waters by the management
of CKD. EPA's multisector stormwater general permit under the National
Pollutant Discharge Elimination System (NPDES) program (see 60 FR
50804, September 29, 1995) contains limits to control effluent
discharges specific to the cement industry (among other industries) and
requires each plant to develop facility-specific pollution prevention
plans and demonstrate best management practices (BMPs) to minimize the
contact between storm water runoff and CKD or other pollutant sources,
or else remove CKD (or other constituents) before the stormwater is
discharged. These permits will be in addition to previously issued and
effective storm water baseline general permits that were issued in 1992
by EPA and between 1991 and 1993 by the 40 States with authorized NPDES
programs. The Agency believes that once the storm water permits are
fully implemented, no further water permits or regulations will be
needed to address CKD releases to surface water.
B. Clean Air Act
On the Federal level, air quality has been improved through
implementation of controls on releases of CKD through kiln stacks and
via fugitive dust emissions. Under the New Source Performance Standards
(NSPS) for cement plants, a facility must comply with specific emission
limitations for particulate matter. Prevention of Significant
Deterioration (PSD) review also is required before a cement plant can
be built in a geographic area that is classified as an attainment area.
In addition, cement plants are subject to Nonattainment Review if they
are located in an air quality control area that is not in compliance
with the National Ambient Air Quality Standards (NAAQS) for a given
pollutant (e.g., particulate matter or sulfur dioxide). Today's
proposed rule augments regulations applicable to cement manufacturing
facilities that have been issued under Clean Air Act mandates by
addressing fugitive emissions from CKD storage areas, transportation,
and disposal sites.
The NSPS for Portland cement plants in 40 CFR part 60, subpart F
apply to plants that were constructed or modified after August 17,
1971.\39\ Components of cement plants (referred to as ``facilities'')
specifically affected are kilns, clinker coolers, raw mill systems,
finish mill systems, raw mill dryers, raw material storage facilities,
clinker storage facilities, finished product storage facilities,
conveyor transfer points, and bagging and bulk-loading and unloading
systems. For these plants, EPA has established performance standards
that reflect the degree of emission limitation achievable through
application of the best available control technology.\40\
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\39\ A ``modification'' is any physical or operational change to
an existing facility that results in an increase in the emission
rate of any air pollutant to which the standard applies.
\40\ ``Best Available Control Technology'' (BACT) is defined as
the best system of emission reduction determined by EPA to have been
adequately demonstrated.
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In accordance with the NSPS, no Portland cement plant owner or
operator may cause an affected facility to exceed the particulate
matter emission limits. Owners or operators must monitor each kiln and
clinker cooler stack using a continuous opacity monitoring (COM) system
(or a certified visible emissions observer when a COM is not
technically feasible). In all cases, each owner or operator must submit
semi-annual reports of excess emissions, defined as all 6-minute
periods during which the average opacity exceeds the standard, and of
equipment malfunctions. The emission standards for these facilities are
listed in of 40 CFR part 60, subpart F (Standards of Performance for
Portland Cement Plants). In addition, owners or operators must record
daily production rates and kiln feed rates and monitor the opacity of
emissions.
The 1990 Clean Air Act Amendments established a program to regulate
emissions of 189 toxic air pollutants through technology-based
standards (the National Emission Standards for Hazardous Air Pollutants
(NESHAPs)).\41\ EPA is currently developing NESHAPs for Portland cement
plants that will address stack emissions and fugitive emissions for the
same facilities as listed under the NSPS. The NESHAPs, however, will
not apply to transportation, storage, or disposal of CKD. Fugitive
emissions from CKD landfills, trucks and storage piles are subject to
today's proposed rule.
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\41\ 42 U.S.C. 7412(b)(1); The Act lists 189 pollutants, but the
Agency has since delisted one.
---------------------------------------------------------------------------
In its 1995 Regulatory Determination, EPA stated that it would use
as appropriate the various authorities under the Clean Air Act to
improve regulations for CKD to limit releases to the air (61 FR 7375,
February 7, 1995). EPA did consider the use of its authorities under
the Clean Air Act in its rulemaking approach to address the air pathway
of potential contaminant release. However, existing Clean Air Act
regulations do not fully address emissions from CKD piles. Accordingly,
EPA is proposing to establish RCRA requirements to address emissions
from transportation, storage, and disposal of CKD. To this extent, EPA
is proposing to modify the conclusions of the 1995 Regulatory
Determination, and solicits comment on that change. However, the Agency
is not reversing the 1995 CKD Regulatory Determination entirely. EPA
will continue to rely on its authorities under the Clean Air Act to
control CKD emissions from stacks and pollution control devices (e.g.,
electrostatic precipitators and baghouses). Subsequent examination,
however, revealed that current implementation of these authorities, do
not specifically address CKD waste management.
Particulate emissions from cement manufacturing facilities are
potentially subject to requirements adopted as part of a State
Implementation Plan (SIP), adopted by States in order to achieve or
maintain attainment of the NAAQS for PM, which are national standards
applicable on a regional area basis.\42\ However, SIPs do not routinely
address emissions from landfills and storage piles and, thus, would
likely not prevent local PM10 exceedances such as could
result from fugitive CKD emissions. EPA believes that the risks from
fugitive CKD from landfills, piles, and transportation, warrants
control. Accordingly, EPA is today proposing to establish air emission
requirements for CKD under its RCRA authorities.
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\42\ Under the revised NAAQS for particulate matter, States
which currently are in attainment regarding existing PM standards
must submit to EPA for approval a new SIP which meets newly adopted
standards for PM (See 62 FR 38651, July 18, 1997).
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As mentioned earlier, cement kilns that burn hazardous waste
currently are regulated under RCRA, and implementing regulations found
at 40 CFR Part 266, Subpart H. The Clean Air Act Amendments of 1990
require EPA to develop technology-based emission standards for sources
listed by the Agency, including cement manufacturing plants. In April
1996, the Agency proposed revised stack emission standards and controls
for cement kilns that burn hazardous waste. This proposal, which the
Agency anticipates finalizing in late 1998, will require cement kilns
to control stack emissions of mercury and dioxins and furans, as well
as other hazardous air pollutants. The new emission standards, however,
will not apply to transportation, storage, or disposal of CKD.
EPA believes that today's proposed rule will improve air quality
and reduce health risks at and near CKD
[[Page 45668]]
management units by reducing fugitive emissions of CKD from these
facilities.
VIII. State Authority
A. Statutory Authority
Under section 3006 of RCRA, EPA may authorize qualified States to
administer and enforce the RCRA program within the State. (See 40 CFR
Part 271 for the standards and requirements for authorization.) After
receiving authorization, the State has primary enforcement
responsibility, although EPA retains enforcement authority under RCRA
sections 3007, 3008(a)(2), 3013, and 7003.
As mentioned above, although the Part 259 standards proposed today
would likely be adopted as a matter of State law, Federal inspection
authority would still be available for facilities regulated under those
standards. Because significant violations of the standards would result
in CKD being considered mismanaged and, therefore, hazardous waste, EPA
(as well as State RCRA Subtitle C programs) would have authority to
inspect such facilities to determine whether they were handling
hazardous waste (i.e., mismanaged CKD waste). If the person managing
CKD waste is managing CKD inconsistently or in a manner that does not
comply with the Part 259 standards, it would be subject to Federal
enforcement under regulations proposed today in Sec. 261.4(8)(ii), to
compel compliance with RCRA Subtitle C requirements proposed today in
Part 266.
Prior to the Hazardous and Solid Waste Amendments of 1984 (HSWA), a
State with final authorization administered its hazardous waste program
entirely in lieu of the Federal program in that State. The Federal
requirements no longer applied in the authorized State, and EPA could
not issue permits for any facilities located in a State with permitting
authorization. When new, more stringent Federal requirements were
promulgated or enacted, the State was obligated to enact equivalent and
no less stringent authority within specified time frames. These new
Federal requirements did not take effect in an authorized State until
the State adopted the requirements as State law and received
authorization to implement the new requirements.
In contrast, under section 3006(g) of RCRA, 42 U.S.C. 6926(g), new
requirements and prohibitions imposed by HSWA take effect in authorized
States at the same time as they do in unauthorized States, if the new
requirements are more stringent than the previous requirements. EPA
implements these new requirements until the State is authorized for
them.
Authorized States are required to modify their programs only when
EPA promulgates Federal standards that are more stringent than existing
Federal standards. Section 3009 of RCRA allows States to impose
standards more stringent than those in the Federal program (see 40 CFR
271.1(I)). Federal (both HSWA and pre-HSWA) regulations that are
considered less stringent are optional for the authorized States to
adopt, and do not go into effect in authorized States until those
States adopt them and are authorized to implement them.
B. Effect of Today's Proposed Rule
The RCRA sections of today's proposal are promulgated in part
pursuant to pre-HSWA, and in part pursuant to HSWA. Pursuant to pre-
HSWA authority, the proposal modifies the rule exempting CKD from
hazardous waste regulation under Sec. 261.4(b)(8), exempts from
Subtitle C CKD that is either (a) managed in accordance with certain
standards, or recycled or used for certain other beneficial purposes
(Sec. 261.4(b)(8)), and lists as hazardous waste CKD that is not
managed in compliance with the proposed standards. The proposal also
includes tailored Subtitle C regulations for nonexempt CKD
(noncharacteristic CKD and characteristic CKD from kilns burning non-
hazardous waste which do not meet the proposed management standards)
under Subpart I of 40 CFR Part 266. Characteristic CKD from kilns
burning hazardous waste is not affected by this proposed rule and still
is subject to full RCRA Subtitle C requirements as set forth in 40 CFR
266.112. The tailored Subtitle C standards are promulgated in part
based on EPA's general pre-HSWA authority to set management standards
for facilities that manage hazardous waste, and in part on the
authority in section 3004(x), a HSWA provision, to modify certain
requirements that would otherwise apply to any hazardous waste.
The portion of this proposal that lists nonexempt CKD as hazardous
waste is more stringent than the current Federal requirements. Section
271.21(e)(2) of EPA's State authorization regulations (40 CFR Part 271)
requires that States with final authorization modify their programs to
reflect Federal program changes and submit the modifications to EPA for
approval. The States must modify their programs and obtain
authorization to include CKD requirements that are equivalent and not
less stringent than the EPA's requirements for CKD. The procedures and
time frames for State program modifications are described in 40 CFR
271.21. The deadline by which the States must modify their programs to
adopt this proposed regulation, if it is adopted as a final rule, will
be determined by the date of promulgation of the final rule in
accordance with Sec. 271.21(e)(2). Once EPA approves the modification,
the State requirements become RCRA Subtitle C requirements.
Because the tailored regulations promulgated under both pre-HSWA
and HSWA authorities are less stringent than full RCRA Subtitle C,
States are not required to adopt the tailored regulations. While HSWA
aspects of a rule usually become effective immediately, the only effect
of the tailored regulations here is to relax full RCRA Subtitle C
requirements for CKD failing to meet management standards in States
authorized to regulate CKD. The flexibility provided by these tailored
regulations is irrelevant until the States revise their programs and
become authorized to regulate CKD.
Although the States do not have to adopt the tailored regulations
proposed today under Part 259, EPA strongly encourages States to do so.
The tailored regulations would contribute to more efficient State
programs because they minimize the cost of compliance while providing
sufficient protection of human health and the environment.
States seeking authorization under Subtitle C do not have to adopt
new laws and regulations before submitting their authorization package
to EPA for approval. States may use their existing laws and
regulations, such as their solid waste laws,\43\ as long as those laws
and regulations cover all of the required elements for regulating CKD
as part of the RCRA Subtitle C program.
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\43\ Because the listing of mismanaged CKD is more stringent
than the current Federal hazardous waste regulations, States with
base authorization must revise their Subtitle C program and seek
authorization for the CKD listing. However, although the States can
use their existing solid waste laws to comply with the requirements
for the regulation of CKD, States are not required to seek plan
approval for a CKD program under Subtitle D.
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IX. Regulatory Requirements
A. Regulatory Impact Analysis Pursuant to Executive Order 12866
Under Executive Order No. 12866 (58 FR 51735, October 4, 1993), EPA
must determine whether a regulatory action is ``significant.'' The
Order defines a ``significant'' regulatory action as one that ``* * *
is likely to result in a rule that may: (1) Have an annual effect on
the economy of $100 million or more or adversely affect, in a material
way, the economy, a sector of the economy, productivity, competition,
jobs, the
[[Page 45669]]
environment, public health or safety, or State, local, or tribal
governments or communities; (2) create serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients; or
(4) raise novel legal or policy issues arising out of legal mandates,
the President's priorities, or the principles set forth in the
Executive Order.''
Pursuant to the terms of Executive Order 12866, the Agency has
determined that this rule is a significant regulatory action because it
raises novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the Executive
Order. Changes made in response to OMB suggestions or recommendations
are documented in the public record and are available in the docket for
this rule. Although today's rule is expected to affect the economy by
substantially less than $100 million per year, the Agency conducted a
relatively detailed cost and impact study to evaluate the effects of
the rule on the U.S. Portland cement industry and the economy.
1. Scope and Approach for Estimating Economic Costs and Impacts
As described in Section III.G. (Today's Approach--Exclude Properly
Managed CKD From Hazardous Waste Listing) of this preamble, today's
proposed rule calls for a flexible approach to managing land-disposed
CKD, a policy tailored to site-specific cement plant, climate, and
geophysical conditions. In this context, the Agency has attempted to
estimate, individually for each plant, the changes in management
practices that might be required to meet the performance-based
objectives of the proposed policy, and then to estimate the costs for
carrying out these changes. This requires: first, a reasonably detailed
understanding of current ``baseline'' CKD waste generation and
management practices; second, a means of simulating likely plant-
specific practice changes; and third, an approach to estimate the costs
of the projected changes.
a. The Regulatory Baseline
There are currently 110 Portland cement plants in the United States
and Puerto Rico. Based on previous work for the Report to Congress and
Regulatory Determination, the Agency had acquired an extensive data
base on general cement plant characteristics, CKD generation and
management practices, and locational circumstances. General plant-
specific data on the types, location, and capacity of cement plants is
cataloged and updated annually by the American Portland Cement
Association (APCA). In addition, the APCA conducted a detailed industry
survey of plant CKD generation and management practices for the year
1995, and information from this survey, together with follow-up
information from member companies of the Non-Hazardous Burner CKD
Coalition, was used to update and expand the Agency's facility-specific
data base on waste generation. Thus, the combined 1990 and 1995 survey
data on CKD generation and disposition was available for 108 of the 110
cement plants in the cost study.
The 1995 baseline survey results indicated that 24 of the 110
plants (22%) recycle all collected dust back to the kiln, and an
additional 12 plants (11%) reported shipping all generated dust off-
site for beneficial use. For the present impact analysis, the Agency
thus defined the potentially affected cement plant universe to include
the remaining two-thirds of the plants, i.e., the 74 facilities
currently disposing of CKD on-site, with a combined annual CKD land-
disposal requirement of 3.3 million metric tons in 1995.44
These facilities employ on-site disposal for CKD quantities ranging
from less than 1,000 metric tons per year up to more than 200,000 tons
per year. It is also possible that some off-site CKD market changes
could result from the proposed policy, thus altering CKD disposal
requirements for individual plants. This possibility is discussed
further below.
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\44\ A small number of additional facilities could be affected
if they were to loose off-site markets for CKD due to the Agency's
proposed standards for use as an agricultural lime substitute.
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With respect to baseline management practices at individual plants,
the Agency had to rely primarily on the earlier 1990 survey information
where available, or to assume typical baseline practices for many
plants based on APCA-provided summaries of industry-wide 1995 survey
information which characterized the general distribution of typical
current practices but not plant-specific information. Based on
available information, EPA then categorized each of the 74 potentially
affected plants into one of nine prototype baseline groups for purposes
of estimating baseline CKD management costs. The nine baseline groups
differed according to three generic types of disposal configuration
(placement in a quarry, land pile, or combination in-ground and land
pile) and three degrees of engineering and operational complexity
(``low,'' ``medium,'' or ``high''), depending on the types and degrees
of release-prevention practices employed.
b. Projecting Plant-Level Compliance Responses
Under a tailored management policy, the new compliance requirements
for individual cement plants could vary substantially from State to
State, depending on current baseline regulations, or from plant to
plant even within a given State, depending on plant-specific waste
quantities and management practices and local geological conditions.
Thus, some plants will require little or no change in present practices
while others may require an extreme change from essentially simple open
dumping of their CKD up to and including an engineered land disposal
design equivalent to the Federal municipal solid waste landfill
technical standards. In rare situations, plants with no available on-
site landfill space or plants located in areas of highly adverse
geological conditions may be required to dispose of CKD in off-site
municipal or approved industrial landfills.
For purposes of simulating plant-specific compliance responses
under these highly variable and in many cases uncertain conditions, the
Agency made the simplifying assumption that the final compliance
outcome for each plant would fall into one of four compliance groups or
scenarios. Three compliance designs varied primarily by degree of
control measure required to meet the regulatory performance criteria. A
``CKD Low'' design requiring relatively simple but comprehensive
measures for controlling releases to the air, ground water and surface
water, could be satisfactory, for example, under local conditions with
high depth to ground water and low rainfall. A ``CKD High'' design,
employing a more extensive liner and closure-cover configuration, was
assumed as an intermediate design to limit or prevent infiltration of
leachate. The most extensive design is the ``Subtitle D Default,''
equivalent to the municipal landfill default requirement defined by
today's rule. All three of these designs were costed in a mono-pile
configuration as the least-costly available option. As a fourth generic
option for cost-estimating purposes, the Agency estimated off-site
disposal in a commercial landfill certified for contaminated media to
accommodate facilities with inadequate landfill space or extremely
adverse environmental locations that might preclude continued on-site
disposal.
In assigning each of the 74 plants to one of these four compliance
options, the Agency applied judgements based
[[Page 45670]]
on general knowledge and primarily public information regarding local
geological conditions that would affect the need for groundwater
protection. In addition, two specifically conservative assumptions
affecting compliance costs were employed. The first assumed that
disposal in quarries would not be allowed; the second assumed that in
situations where karst terrain underlies a potential on-site land
disposal location, the most extensive Subtitle D default design would
be required for compliance. Since most baseline disposal is in quarries
and a majority of cement plants are located over karst conditions,
these assumptions will tend to overstate the degree of change required
and the Agency's estimated cost of compliance for some fraction of the
plants.
c. The Cost and Impacts Models
To estimate individual plant CKD disposal costs for both baseline
and compliance scenarios, EPA adapted and updated the engineering
costing model originally developed for the municipal landfill
regulatory impact assessment. Essentially, the revised model sizes,
designs, and calculates the capital and operating costs for specified
land disposal options, including quarries, monopiles, and combination
landfill/pile alternatives, and a wide variety of possible leachate and
air emission release/control technologies, during the active-life,
closure, and post-closure project phases. To estimate the costs of
complying with today's rule, CKD management costs were estimated twice
for each plant, first for the chosen baseline practice and then for the
projected compliance design. The difference in cost between the two
estimates is the Agency's incremental compliance cost estimate for each
plant, the results of which are summarized below.
Additional details regarding the study design, baseline data, and
engineering and costing assumptions for the study, as well as the
estimated baseline costs and compliance costs for each of the 110
Portland cement plants, are presented in the technical background
document titled Compliance Cost Estimates for the Proposed Land
Management Regulation of Cement Kiln Dust (April 10, 1998) located in
the RIC docket for today's rule.
In a second phase of the economic impact assessment, the Agency
employed a Portland cement industry market impacts model designed to
project regional cement price changes, plant capacity use changes, kiln
closures, and shifts in international shipments. This industry or
market-level impacts model was originally developed by the Agency's
Office of Air Quality Planning and Standards for use in assessing
cement industry impacts of proposed national emission standards for
hazardous air pollutants. The methodology for estimating cement
industry impacts, together with the results for 20 cement marketing
regions and the United States as a whole, is contained in the document
titled Regulatory Impact Analysis of the Cement Kiln Dust Rulemaking
(June 1998) located in the RIC docket for this rule.
2. Summary of Cost and Impact Results
a. Nationwide Compliance Costs
Using the methods and data described above, the Agency estimates
that today's rule would require incremental compliance costs for the
Portland cement industry of about $44 million per year. These cost
increases would initially fall on 68 of the 110 U.S. and Puerto Rican
plants that currently manage CKD on site. Thirty-six of the remaining
42 plants would not have to undergo changes in management practices,
either because they can recycle all collected dust back to the kiln or
because they have off-site markets for all generated dust. In the case
of the six remaining plants--all with small CKD quantities--the Agency
estimates that off-site Subtitle D landfill disposal could be obtained
at costs approximately at or below their current baseline costs. For
the 68 negatively-affected plants, the average added cost per plant
would be approximately $646,000 per year, or just over $13 per metric
ton of CKD. For these 68 plants, estimated annual compliance costs
ranged from under $100 thousand to over $3.5 million per year. Relative
to its annual value of cement sales, the average affected plant would
face additional costs of just under two percent of sales revenues.
Due to the wide variability in plant capacities, net CKD-to-clinker
ratios, and required management practice changes, these costs would
fall very unevenly among plants in the industry. The following table
summarizes the distribution of costs across all plants in the industry,
expressed as the percentage ratio of incremental compliance cost to
annual Portland cement sales revenues at 1995 prices and capacity
utilization levels.
Table 3.--Industry Distribution of Cost as a Percent of Sales
------------------------------------------------------------------------
Number of Percent of Cumulative
$Cost/$sales plants plants percent
------------------------------------------------------------------------
Zero Cost or Cost reduction...... 42 38 38
>0 to 1%......................... 29 26 64
>1 to 2%......................... 19 17 82
>2 to 3%......................... 9 8 89
>3 to 4%......................... 4 4 94
>4 to 7%......................... 7 6 100
--------------------------------------
Total........................ 110 100%
------------------------------------------------------------------------
Although costs for individual plants may be either over-or
understated, for various reasons the Agency believes that the pattern
of compliance costs estimated here represents a ``high end'' projection
for the industry as a whole. First, due to a lack of detailed site-
specific geophysical data, the default assumption was made that any
plant currently disposing of dust in a quarry would no longer be able
to continue managing in the quarry. In reality, the proposed rule would
only apply, on a site-specific basis, to management in a quarry where
the natural (unpumped) ground-water level would lie above the base of
the disposal area. Similarly, for plants located in areas of karst
terrain (based on generally available regional geological mapping), the
default assumption was made that all such plants would need to utilize
a full municipal solid waste landfill default design, the most costly
compliance option. In practice, many such plants may face less
expensive compliance designs based on more detailed local
[[Page 45671]]
knowledge of the existence and hydrology of the underlying karst
topography. Since a substantial majority of potentially affected cement
plants fall into one or both of these categories, the assumed
compliance option for purposes of the costing study was biased towards
the high-end engineering design. In a few instances, it appeared from
available information that no on-site option might be viable. In
another respect, the Agency's costs are also biased upwards due the
fact that plant-specific data on current management practices was
lacking for most plants and, as noted above, reliance was placed
primarily on information from a 1990 survey. Some States have been
actively regulating CKD placement in the interim, or are in the process
of actively upgrading disposal regulations. Thus, EPA's outdated
information on baseline practices for those plants means that, for an
unknown but not insignificant number of plants, the incremental
compliance costs will have been overstated in this analysis because
several of these plants would already have become partially or
substantially in compliance with the performance standards being
proposed today.
b. Economic Impacts
The second phase of industry cost and impact assessment employed a
Portland cement industry impacts model to project regional cement
market shifts and impacts that could be expected to result from the
estimated pattern of individual plant-level compliance cost increases.
In general, a major part of the compliance cost burden will be shifted
to cement consumers (in both the private and public sectors) in the
form of higher prices for construction goods and to government in the
form of somewhat reduced corporate taxes. The remaining burden will be
born by that segment of the industry most directly affected by the
highest compliance costs. On average, cement industry profits will be
reduced, at least for some period of time, but several plants and
firms--those with little or no compliance cost burden--will see higher
capacity utilization and profits due to the upward shift in regional
prices brought about by the shifting of costs by affected plants.
Based on this model, which projects intermediate term effects but
does not account for longer term technology innovation or new capacity
expansions at lower cost units, the Agency estimated the following
cement market effects from the proposed rule.
Cement Prices. Nationally, cement prices are projected to increase
over their 1995 baseline by less than one dollar per metric ton, or
about 1.3 percent. Regionally, price increases would range from about
1.1 to 3.8 percent across the twenty cement market regions of the
country.
Cement Capacity and Production Changes. Five to seven kiln
closures, including one possible plant closure, could result from
today's rule. All told, these capacity reductions together with net
capacity utilization changes in each region, associated with or in
response to the market price increases noted above, could result in
domestic output reductions of about 2.6 percent of the 1995 baseline
production on a national basis.
Cement Imports. Price increases by affected domestic cement
producers will be tempered by increased foreign imports, which are
projected to increase by over 800 thousand metric tons (6.2 percent).
Employment Effects. Nationally, employment reductions in the
primary cement industry equivalent to about 500 full-time jobs would be
associated with the production changes noted above.
Again, it bears emphasis that the Agency believes these impact
estimates to be high end estimates, both because of the default
assumptions employed in the plant-level engineering cost estimates
themselves and because the market impacts model does not account for
longer-term industry responses to the initial compliance cost effects.
3. Benefits of the Rulemaking
The Agency has undertaken several efforts to estimate the impacts
from the baseline management of CKD and, thus, identify the benefits
from today's rule. In support of the Report to Congress on Cement Kiln
Dust and the Regulatory Determination, the Agency performed an
individual risk analysis to determine whether current CKD management
practices may impact nearby individuals, including highly exposed
individuals (e.g., subsistence farming). For today's proposed
rulemaking, the Agency built upon the previous individual risk analysis
to estimate population-level impacts associated with current management
practices (see Section II.C.4.a.--Population Risks). The Agency also
conducted a screening level analysis to determine whether current
management practices may result in effects to ecological receptors. The
Agency, however, has not quantitatively assessed how the proposed
standards will reduce the human health, ecological, and other damages
associated with current CKD management. For the purposes of this
analysis, an upper-bound estimate of the benefits provided by this rule
is to assume that all of the impacts described below are avoided.
For the 1993 Report to Congress and 1995 Regulatory Determination,
the Agency modeled individual risks from direct and indirect pathways
for 83 plants. The Agency concluded that the risks from direct pathways
(i.e., drinking water ingestion, incidental ingestion, and chemical
inhalation) were low or negligible. The Agency caveated these
conclusions by noting that (1) about half of the plants are underlain
by limestone formations in areas of karst landscape and may be
susceptible to fissures and hydraulic characteristics that allow
leachate to directly enter groundwater without dilution or attenuation
and cannot be modeled with current techniques; (2) empirical evidence
indicated groundwater contamination in areas of both karst and non-
karst terrain; and (3) modeling results for fine particulate emissions
for 28 cement plants out of 52 modeled may have exceedances of NAAQS at
plant boundaries and may result in risks from fine particulate
inhalation at nearby residences. Today's proposed rule addresses each
of these areas and should result in the avoidance of these individual-
level impacts. For the indirect pathways, the Agency concluded that
releases from about 12 percent of the 83 plants studied may result in
cancer risks greater than 1 x 10-5 for highly exposed
individuals (i.e., subsistence fishers and subsistence farmers).
Similarly, the Agency concluded that releases from about 12 percent of
the 83 plants may result in noncancer hazard ratios greater than 1.0
for highly exposed individuals. Today's proposed action should help
prevent these risks to highly exposed individuals.
As described in Section II.C.4.a.--Population Risks, the Agency
expanded the individual risk assessment conducted for the 1993 Report
to Congress and 1995 Regulatory Determination to evaluate population-
level risks. Based on this expanded analysis, the proposed rule may
result in a reduced risk of 0.0004 to 0.003 cancer cases per year (best
estimate--0.0006) and 29 to 315 fewer persons (best estimate--43)
exposed to potential non-cancer health effects due to food chain
exposures (i.e., vegetables, beef, and/or milk) to ``backyard''
gardeners and subsistence farmers. In addition, the population analysis
indicated that between 669 and 5,895 recreational fishers (best
estimate--999) would avoid exposure to contaminant levels that may
result in noncancer health effects. The population analysis indicated
that 18 to 4,118 individuals (best estimate--2,378)
[[Page 45672]]
would avoid exposure to particulate matter in excess of the NAAQS.
As described in Section II.C.4.b.--Additional Ground-water
Modeling, the Agency conducted additional groundwater analyses to
determine whether the high alkalinity leachate associated with CKD may
result in elevated groundwater concentrations of constituents of
concern. The analysis indicated that the highly alkaline nature of CKD
leachate resulted in elevated levels of lead, chromium, and cadmium in
the groundwater and suggested that beryllium and barium also may be
more mobile in CKD leachate. The analysis also indicated that all of
these metals were more likely to be transported to the groundwater.
Thus, today's action should help prevent contaminated CKD leachate from
impacting groundwater resources.
The proposed rule will provide other benefits that have not been
estimated quantitatively, but can be qualitatively described. These
include protecting groundwater resources near cement plants, including
resources located in areas of karst terrain; preventing the corrosion
of water distribution pipes by source waters with pHs elevated by CKD
leachate; and protecting ecological receptors from adverse effects
resulting from the atmospheric deposition and groundwater discharge of
CKD.
B. Regulatory Flexibility Analysis
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA), whenever an agency is required to publish a notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small governmental jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency certifies the rule will not have a significant adverse
economic impact on a substantial number of small entities.
SBREFA amended the Regulatory Flexibility Act to require Federal
agencies to provide a statement of the factual basis for certifying
that a rule will not have a significant economic impact on a
substantial number of small entities. The following discussion explains
EPA's determination.
1. Identification of Small Cement Companies
The Small Business Administration (SBA) has defined small companies
in the Portland cement industry to include independent companies with
less than 750 employees. At the time of the CKD Regulatory
Determination, the Agency had identified and published a list of
possible small cement companies based on initial research in Dun and
Bradstreet and similar corporate business publications. Subsequently,
both the APCA and the Non-Hazwaste Burner CKD Coalition reviewed this
initial list and provided changes based on their own research and
consultations with member companies. This resulted in a mutually
agreed-upon list of eight small U.S. cement companies, each operating a
single plant, in an industry comprised of 42 companies operating 110
plants in the U.S. and Puerto Rico.
2. Outreach
In addition to working with industry groups to identify small
cement companies, in July 1997 the Agency sent a letter to the
president of each of the eight small companies explaining the SBREFA
process, outlining several possible CKD regulatory approaches, and
requesting comments and suggestions regarding these options. In
addition, those small companies that had not previously responded to
the 1995 APCA CKD generation and management practices survey were urged
to return a completed APCA questionnaire to EPA to facilitate a more
realistic cost and impact assessment. In response, all eight companies
either returned their comments and questionnaires directly or provided
their input indirectly through the Non-Hazwaste Burner CKD Coalition.
In addition, six of the companies presented their own estimates of
compliance costs for the most stringent of the EPA regulatory options.
The Coalition subsequently presented SBREFA policy arguments and
recommendations to the OSWER Deputy Assistant Administrator.
3. The Agency's RFA Screening Analysis
Based on the APCA Survey responses and the cost analysis described
previously, the Agency completed plant-specific compliance cost
estimates for each of the eight small companies. Where relevant for
individual plants, major compliance costs included engineered land
disposal units with ground water monitoring, pelletizing and compaction
of the CKD, closure and post-closure management for disposal units, and
covers on trucks and the watering of plant roads to control airborne
dust. The Agency did not include costs for storage sheds and silos that
might be required at some plants for controlling dust that could be
blown from CKD stored prior to shipment for off-site use. If needed,
the cost of such temporary storage units should be relatively modest,
under $10,000 per year on an annualized basis. In summary, for the
eight small companies:
Four would not be negatively affected (unless they were to
lose off-site CKD markets).
Three would have incremental compliance costs as a percent
of baseline sales between 0.3% and 1.0%.
One small-company would have costs greater than 1.0%, but
still less than 2% of baseline sales.
As noted, six of the eight small companies also compiled and
presented independent cost estimates in response to EPA's letter
requesting comments on alternative regulatory approaches. The
companies' worst case incremental compliance cost projections were
somewhat higher than EPA's estimates, with one company under one
percent of sales, four in the one-to-two percent range, and one between
three and four percent. The greatest part of the difference between
these and the EPA's estimates stems from the companies' assumption that
all of the five small companies that presently market CKD for off-site
uses would lose their entire off-site CKD markets as a result of the
rule. This assumption is particularly critical for three of the six
plants that currently ship all of their CKD to off-site uses. In
addition, the companies' projections also assumed the worst-case: that
full municipal solid waste landfill design standards would be required,
rather than the site specific control measures, tailored to local
conditions, which are proposed in today's rule. On this basis, the
companies' estimates projected an implicit compliance cost distribution
in which at least four of the six companies would have costs between
one and two percent of sales revenue, and one would see costs in excess
of three percent.
While this double worst-case combination can not unequivocally be
ruled out for each and every small plant individually, the Agency
believes that it represents an extremely unlikely scenario for
projecting impacts of the rule on the small companies as a group. In
particular, there is little reason to assume a total loss of off-site
markets due to the Subtitle C ``stigma.'' The Agency is not proposing
to list or otherwise regulate off-site beneficial uses generally. The
only off-site use proposed for regulation is that of an agricultural
lime substitute, and the Agency does not have information indicating
that any of the small companies currently ship off-site for this use.
Furthermore, current levels of
[[Page 45673]]
off-site CKD uses are continuing under the specter of EPA's Regulatory
Determination decision to regulate CKD, and thus one might argue that
any stigma associated with Federal regulation of CKD could already be
in effect. For these and other reasons previously discussed, the Agency
believes that its approach, based on continuance of off-site use
markets and assuming location-specific flexibility in State program
implementation, provides for a more realistic high end projection of
initial compliance cost effects. Although the Agency believes that the
stigma of Subtitle C will not result in the loss of off-site markets,
EPA requests comment specifically on whether this rule will affect the
availability of markets for beneficial use of CKD, and if so, to what
extent and for which particular uses.
4. Agency Findings and Conclusions Regarding SBREFA Impacts
The Agency's RFA screening study does not indicate a significant
negative impact on a substantial number of small companies as a likely
outcome of the proposed rule. With respect to the per-cent-of-sales
cost criterion, EPA's high end engineering cost estimates project that
not more than one or two small companies will experience initial
compliance costs greater than one percent of baseline sales. In
addition, the economic impact analysis projects that regional cement
price increases due to shifting of initial compliance costs to cement
consumers will partially, if not totally, offset higher costs for small
companies that might be required to alter their CKD management
practices. In fact, several of the small companies--articularly those
that do not land-dispose any wasted dust--ould thus realize higher net
annual profits as a result of these market impacts.
For the reasons discussed above, I hereby certify that this rule
will not have a significant adverse economic impact on a substantial
number of small entities. This rule, therefore, does not require a
regulatory flexibility analysis.
C. Environmental Justice--Applicability of Executive Order 12898
As part of its analysis of risks to human health posed by CKD, the
Agency investigated whether there are environmental justice issues
associated with the management of CKD. Executive Order 12898, dated
February 11, 1994, and titled ``Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations,'' provides for Federal agencies to consider environmental
justice issues. As explained in its Regulatory Determination (60 FR
7371, February 7, 1995), EPA announced the availability of a report
titled Race, Ethnicity, and Poverty Status of Populations Living Near
Cement Kilns in the United States. 45 In the report, the
Agency examined the demographics around cement plants in order to
determine if there exist any trends at the national level which
indicate there might be environmental justice considerations with
respect to cement kiln dust. EPA's study includes numerous analyses and
summaries of demographic data, and is available in the RCRA docket. The
results of the demographic studies of populations surrounding cement
kilns indicate that cement plants are for the most part located in
rural areas populated by varied types of communities. While the data do
indicate that there are individual communities with high percentages of
minority or low income populations surrounding specific cement kilns,
they do not suggest that specific minorities or poverty-level
populations are overly represented at the national level.
---------------------------------------------------------------------------
\45\ This report is available in the RIC docket (No. F-4-C2A-
0016).
---------------------------------------------------------------------------
Today's rule is intended to reduce risks from the management of CKD
and to benefit all populations. It is not expected to cause any
disproportionately high and adverse human health and environmental
effects on minority or low income communities versus affluent or non-
minority communities. The Agency solicits comment and input on the
implications of this rule for environmental justice, from all
interested persons, including members of the environmental justice
community and members of the regulated community. The Agency encourages
all interested parties to provide comments or further information that
might assist the Agency in further assessing impacts on minority or
low-income populations.
D. Protection of Children--Applicability of Executive Order 13045
The Executive Order 13045, entitled ``Protection of Children from
Environmental Health Risks and Safety Risks (62 FR 19885, April 23,
1997) applies to any rule that EPA determines (1) is ``economically
significant'' as defined under Executive Order 12866, and (2) the
environmental health or safety risk addressed by the rule has 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 proposed rule is not subject to E.O. 13045 because this is not
an economically significant regulatory action as defined by E.O. 12866.
However, the Agency has reason to believe that the environmental
health risk addressed by this action may have an effect on children.
The Agency has evaluated the environmental health effects of CKD on
children. These documents are are summarized and discussed below and
copies have been placed in the RCRA docket for this action.
Children's Health Protection. In accordance with Sec. 5(501), the
Agency has evaluated the environmental health effects for CKD on
children, and found that generally the risks to children are similar to
risks estimated to adults. However, the Agency noted that exposure to
CKD may result in elevated blood-lead levels in children that live near
cement plants that manage CKD. The Agency evaluated children's health
through three mechanisms: the risk assessment to support the Report to
Congress, the examination of health effects associated with lead, and
the assessment to set risk-based concentration limits for hazardous
constituents in CKD used as an agricultural liming agent.
In the risk assessment to support the Report to Congress, the
Agency evaluated the risks from exposure to CKD through incidental
ingestion of soil and dermal absorption of contaminants in CKD. For
these exposure pathways, the Agency adjusted exposure parameters (e.g.,
ingestion rate, body weight) to reflect a five-year childhood exposure.
Based on this analysis, the Agency concluded that health effects to
children through these exposure routes were negligible. The analysis is
described in detail in the Technical Background Document for the Human
Health and Environmental Risk Assessment in Support of the Report to
Congress on Cement Kiln Dust Waste--December 1993.
The Agency also evaluated effects of exposure to CKD on blood-lead
levels. For this analysis, the Agency estimated concentrations in air,
soil, ground water, surface water, and diet using a fate and transport
model and then input these concentrations in the Integrated Exposure
Uptake Biokinetic Model (IEUBK) to estimate potential blood-lead levels
for children near a cement plant. The analysis indicated that two of
the five modeled plants may result in blood-levels above 10 ug of lead/
dL of blood,
[[Page 45674]]
a level at which adverse effects to children may occur. Based on this
analysis, the Agency noted that CKD may contribute to elevated blood-
lead levels in children living near uncontrolled CKD piles. This
analysis is described in detail in Technical Background Document for
the Notice of Data Availability to Support the Regulatory Determination
on Cement Kiln Dust--August 31, 1994. 46
---------------------------------------------------------------------------
\46\ Errata for this document are identified in the Supplemental
Errata for this document are identified in the Supplemental Errata
Document for the Technical Background Document for the Notice of
Data Avialability on Cement Kiln Dust--September 30, 1994.
---------------------------------------------------------------------------
For the agricultural use risk assessment, EPA conducted a separate
assessment of risk from hazardous constituents (metals and dioxins) in
CKD for the child of farmer receptor scenario. A detailed description
of this analysis is provided in the Risk Assessment for Cement Kiln
Dust Used as an Agricultural Soil Amendment. Pathways evaluated for the
child of farmer scenario include incidental ingestion of contaminated
soil, ingestion of plants grown on amended soil, and products from
animals raised on feed from CKD amended fields. For these exposure
pathways, the Agency adjusted exposure parameters (e.g., ingestion
rate, body weight) to reflect an 18-year childhood exposure. Exposures
to lead were evaluated separately for this analysis. The IEUBK model
was used to evaluate lead exposure in young children (birth to 7 years
of age). The constituent concentration limit proposed for lead in
todays rulemaking is based on EPA's analysis of predicted blood lead
levels in children due to ingestion of CKD amended soil. Risks from
other hazard constituents in agriculturally applied CKD did not differ
significantly between children and adult exposure scenarios.
Although the Agency has noted the potential for adverse effects to
children based on the current management of CKD, today's proposed rule
will provide measures to ensure the protection of children's health. In
particular, the proposed management standards will limit exposures via
the ground water route and air pathway. In addition, the Agency
believes that the storm-water run-off regulations will be adequate to
protect from exposures via the overland runoff routes. These measures
will limit uncontrolled releases from CKD piles, preventing children's
exposures, and thus, protecting children's health. Finally, the
development of risk-based concentration limits for hazardous
constituents in CKD used agriculturally will ensure that children are
adequately protected against potential environmental health risks from
CKD used in this manner.
E. National Technology Transfer and Advancement Act
Under section 12(d) of the National Technology Transfer and
Advancement Act, the Agency is directed 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, business practices,
etc.) that are developed or adopted by voluntary consensus standard
bodies. Where available and potentially applicable voluntary consensus
standards are not used by EPA, the Act requires the Agency to provide
Congress, through the Office of Management and Budget, an explanation
of the reasons for not using such standards. The Agency is not aware of
any available or potentially applicable voluntary consensus standards
that would be applicable to the CKD issues addressed in this proposed
rule.
F. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 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 analysis, 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.
EPA's analysis of compliance with UMRA found that the proposed
action imposes no enforceable duty on any State, local, or tribal
governments and therefore does not include a Federal mandate that may
result in estimated costs of $100 million or more to either State,
local, or tribal governments in the aggregate. EPA also has determined
that this rule contains no regulatory requirements that might
significantly or uniquely affect small governments. In addition, as
discussed above, the private sector is not expected to incur costs
exceeding $100 million. EPA has fulfilled the requirement for analysis
under the Unfunded Mandates Reform Act.
G. Paperwork Reduction Act
The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An
Information Collection Request (ICR) document has been prepared by EPA
(ICR No. 1870.01) and a copy may be obtained from Sandy Farmer by mail
at: OPPE Regulatory Information Division, U.S. Environmental Protection
Agency (2137), 401 M Street S.W., Washington D.C. 20460, or by calling
the Agency directly at (202) 260-2740. A copy may also be obtained by
email at farmer.sandy@epamail.epa.gov, or downloaded off of the
internet at http://www.epa.gov/icr.
The bottom line annual burden 47 to respondents over
three years is about 4,000 hours with a cost of approximately $21
million.
[[Page 45675]]
Approximately 88%, or $18.5 million of the total cost is attributable
to O&M costs (consultant fees, sampling fees, and mailing costs). The
capital costs incurred by facilities for the installation of ground-
water monitoring systems, and the acquisition of new filing cabinets
are approximately $206 thousand and $69 thousand per year,
respectively. The bottom line annual burden to the Agency is about 1000
hours, with a cost of approximately $43 thousand, of which capital
costs are insignificant.
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\47\ Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to of for a Federal Agency. 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 respond to a collection of
information; search data sources; complete and review the collection
of information; and transmit or otherwise disclose the information.
---------------------------------------------------------------------------
EPA estimates that for each cement kiln dust landfill unit, there
will be an average reporting burden of about 30 hours annually, which
includes time for preparing and submitting demonstrations,
notifications, and certifications to the EPA Regional Administrator.
EPA estimates that each CKD landfill unit will incur an average annual
recordkeeping burden of about 150 hours. This estimate includes time
for reading regulations, and preparing demonstrations, notifications,
and certifications to be placed in the operating record.
EPA estimates that cement manufacturing facilities that do not
operate CKD landfills will incur an average reporting burden of less
than one hour annually, and a recordkeeping burden of about three hours
annually. The recordkeeping burden estimate includes time for reading
the regulations, sampling and analyzing dust, and placing notations,
certifications, and demonstrations in the operating record.
EPA 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 the Agency's
regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.
Comments are requested on EPA's need for this information, the
accuracy of the provided burden estimates, and any suggested methods
for minimizing respondent burden, including the use of automated
collection techniques. Send comments on the ICR to the Director, OPPE
Regulatory Information Division; U.S. Environmental Protection Agency
(2137), 401 M Street S.W., Washington, D.C. 20460, and to the Office of
Information and Regulatory Affairs, Office of Management and Budget,
725 17th Street N.W., Washington D.C. 20503 marked ``Attention: Desk
Officer for EPA.'' Please include the ICR number in any correspondence.
Since OMB is required to make a decision concerning the ICR between 30
and 60 days after August 20, 1999, a comment to OMB is best assured of
having its full effect if OMB receives it by September 20, 1999. The
final rule will respond to any OMB or public comments on the
information collection requirements contained in this proposal.
H. Executive Order 12875: Enhancing the Intergovernmental Partnership
Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a State, local
or tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments, or EPA consults with those governments. If EPA complies by
consulting, Executive Order 12875 requires EPA to provide to the Office
of Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected State, local and tribal
governments, the nature of their concerns, any written communications
from the governments, and a statement supporting the need to issue the
regulation. In addition, Executive Order 12875 requires EPA to develop
an effective process permitting elected officials and other
representatives of State, local and tribal governments ``to provide
meaningful and timely input in the development of regulatory proposals
containing significant unfunded mandates.''
Today's proposed rule implements requirements specifically set
forth by the Congress in RCRA without the exercise of any discretion by
EPA. Accordingly, the requirements of section 3(b) of Executive Order
13084 do not apply to this proposed rule.
I. Executive Order 13084: Consultation and Coordination with Indian
Tribal Governments
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
Today's proposed rule implements requirements specifically set
forth by the Congress in RCRA without the exercise of any discretion by
EPA. Accordingly, the requirements of section 3(b) of Executive Order
13084 do not apply to this proposed rule.
List of Subjects
40 CFR Part 259
Environmental protection, Administrative practice and procedures,
Air pollution control, Reporting and recordkeeping requirements, Waste
treatment and disposal, Water pollution control.
40 CFR Parts 261 and 266
Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.
40 CFR Part 270
Environmental protection, Administrative practice and procedure,
Hazardous waste.
Dated: July 30, 1999.
Carol M. Browner,
Administrator.
Appendix I to the Preamble--Justification for CKD Listing
Subtitle C of RCRA, as amended, establishes a Federal program
for the comprehensive regulation of hazardous wastes. Hazardous
waste is defined at section 1004(5) of RCRA, 42 U.S.C. 6903(5) as:
(1) those solid wastes which may cause or significantly contribute
to an increase in mortality, serious irreversible illness, or
incapacitating reversible illness; and (2) those solid wastes which
may pose a substantial present or potential hazard to human health
or the environment when improperly managed.
Section 3001 of RCRA requires that EPA define which solid wastes
are hazardous by either identifying the hazardous characteristics of
hazardous wastes or listing particular hazardous wastes. Section
3001(a) of RCRA provides the Agency with flexibility in deciding
whether to list or identify a waste as hazardous and to consider the
need for regulation. Specifically, RCRA section 3001 requires that
EPA, in determining whether to list a waste as hazardous waste, or
to otherwise identify a waste as hazardous waste, decide whether a
waste ``should be subject to the requirements of Subtitle C.''
Hence, RCRA section 3001 authorizes EPA to determine when Subtitle C
regulation is appropriate. The Agency may evaluate
[[Page 45676]]
wastes from either specific or nonspecific sources and decide to
list a waste as hazardous if it meets one of the three criteria
codified at 40 CFR 261.11. The criteria for identifying
characteristics and for listing wastes as hazardous are: (1) wastes
may be classified as ``characteristic'' wastes if they have the
properties described at 40 CFR 261.21-261.24 which would cause them
to be classified as having the characteristics of ignitability,
corrosivity, reactivity or toxicity; (2) wastes may be classified as
acutely hazardous if they are fatal to humans at low doses, lethal
in animal studies at particular doses designated in the regulation,
or otherwise capable of causing or significantly contributing to an
increase in serious illness; and (3) wastes may be listed as
hazardous if they contain hazardous constituents identified in
Appendix VIII of 40 CFR Part 261 and the Agency concludes, after
considering eleven factors enumerated in 40 CFR 261.11(a)(3), that
the waste is capable of posing a substantial present or potential
hazard to human health or the environment when improperly managed. A
substance is listed in Appendix VIII if it has been shown in
scientific studies to have toxic, carcinogenic, mutagenic, or
teratogenic effects on humans or other life forms. One of the
factors the Administrator is to consider is the potential of the
constituent (from Appendix VIII to 40 CFR Part 261) or any toxic
degradation product of the constituent to migrate from the waste
into the environment under the plausible types of improper
management to which the waste could be subjected (see 40 CFR
261.11(a)(3)(iii)).
EPA has evaluated CKD against the listing criteria and
determined that CKD meets the criteria at Sec. 261.11(a)(3), as
summarized in Table 1 follows:
Table 1.--CKD Listing Determination Rationale
------------------------------------------------------------------------
Criteria at Sec. 261.11(a)(3) Rationale
------------------------------------------------------------------------
Nature of the Toxicity Presented by the CKD contains toxic metals and
Constituents (Sec. 261.11(a)(3)(i)). organics listed in Appendix
VIII to Part 261 for which non-
cancer and cancer RfDs have
been established.
Concentration of the Constituent in the Amount of Appendix VIII
Waste (Sec. 261.11(a)(3)(ii)). constituents in CKD are high
due to mass loadings into the
cement manufacturing process.
Potential of the Constituent or Any The 13 cases of documented
Toxic Degradation Product of the damage to ground water which
Constituent to Migrate From the Waste are discussed in today's
Into the Environment Under Specified proposal, the Technical
Types of Improper Management (Sec. Background Document on Ground
261.11(a)(3)(iii)). Water Controls at CKD
Landfills, the 1993 Report to
Congress, and subsequent NODA,
demonstrate a high potential
for Appendix VIII constituents
to migrate from CKD into
ground water. As discussed in
the EPA's 1995 Regulatory
Determination (60 FR 7370),
Agency modeling of risks to
human health due to fine
particulate dust (10 microns
or less) and 36 cases of
documented damage to air
demonstrate a high potential
for contaminants to migrate
into the environment via
fugitive dust emissions.
Modeling results discussed in
the NODA on human health and
environmental risk assessment
(59 FR 47133) indicate human
health risks of concern from
CKD-derived chemical
contaminants via indirect food
chain pathways.
The Persistence of the Constituent or Metals found in CKD are highly
Any Toxic Degradation Product of the persistent in the environment.
Constituent (Sec. 261.11(a)(3)(iv)).
The Potential for the Constituent or Constituents of concern in CKD
Any Toxic Degradation Product of the are primarily metals which,
Constituent to Degrade Into Non- unlike organics, do not have
Harmful Constituents and the Rate of the potential to degrade into
Degradation (Sec. 261.11(a)(3)(v)). non-harmful constituents.
Degree to Which the Constituent or Any Where CKD is used in
Degradation Product of the Constituent agricultural applications,
Bioaccumulates in Ecosystems (Sec. there is a potential for
261.11(a)(3)(vi)). 2,3,7,8-substituted dioxin and
2,3,7,8-substituted
dibenzofuran, which are found
in CKD, to bioaccumulate in
living tissue.
Plausible Types of Improper Management As discussed in the Report to
to Which the Waste Could Be Subjected Congress and subsequent
(Sec. 261.11(a)(3)(vii)). Regulatory Determination (60
FR 7368), CKD is typically
managed on-site in unlined and
uncovered landfills and piles
located in abandoned quarries,
retired portions of operating
quarries or nearby ravines.
Some active piles are also
managed underwater or adjacent
to surface water and/or
agricultural lands. A review
of 1995 CKD management
practices suggested that,
overall, management practices
had not substantially changed
from those reported in the
1993 Report to Congress.
Current management practices
are similar to past management
scenarios, which are
inadequate to limit
contaminant releases from CKD
management units. Moreover,
additional damage cases have
been identified which suggest
current management practices
are inadequate.
Quantities of the Waste Generated at Cement plants average 47,000
Individual Generation Sites or on a metric tons CKD generated per
Regional or National Basis (Sec. year (1995 average). In 1995,
261.11(a)(3)(viii)). the cement industry generated
an estimated 4.1 million
metric tons of CKD.
Nature and Severity of the Human Health As of 1997, EPA has documented
and Environmental Damage That Has evidence of damage to ground
Occurred as a Result of the Improper water and surface water at 16
Management of Wastes Containing the sites, three of which have
Constituent (Sec. 261.11(a)(3)(ix)). been listed on the Superfund
NPL under CERCLA, and one of
which remains on the NPL. 36
cases of damage to air have
been documented at different
sites.
Action Taken By Other Governmental Some States have recognized
Agencies or Regulatory Programs Based that mismanagement of CKD can
on the Health or Environmental Hazard cause substantial
Posed by the Waste or Waste environmental problems,
Constituents (Sec. 261.11(a)(3)(x)). including Michigan,
Pennsylvania, Texas, and
Washington; however, the
Agency believes State
regulatory controls need to be
improved as existing
requirements vary
substantially from State to
State. Problems with repeated
releases of CKD to the
environment suggest that the
implementation of existing
regulations is uneven.
[[Page 45677]]
Such Other Factors As May Be When mixed with water, CKD
Appropriate (Sec. 261.11(a)(3)(xi)). often exhibits the
characteristic of corrosivity
(40 CFR 261.22).
------------------------------------------------------------------------
Based on the Sec. 261.11(a)(3) criteria, the Agency believes
that additional control of improperly managed CKD is warranted to
protect the public from human health risks and to prevent
environmental damage resulting from current management practices for
this waste. The primary concerns to be addressed through the
additional controls are documented damages to ground water and
potable water supplies, and potential human health risks from
inhalation of airborne CKD and ingestion via food chain pathways.
There is the potential for ground-water contamination in both karst
and non-karst areas, however, and EPA is particularly concerned
about areas underlain by limestone with karst features. The Agency
believes these potential risks can be eliminated through the
implementation of more comprehensive management standards.
Although improperly managed CKD can create significant risks,
the Agency believes that these risks can effectively be addressed by
adopting certain basic management techniques. CKD poses risks to
human health and the environment only in specific circumstances
under particular conditions (e.g., disposal of uncompacted CKD in
unlined, uncovered landfills exposed to winds and the influx of
ground water and rain water). Therefore, EPA is proposing to exclude
from listing as hazardous waste CKD that is properly managed
according to standards specified in today's proposal (e.g., disposal
of wet, compacted CKD, otherwise known as ``conditioned'' CKD, in
covered, lined landfills located above the natural water table), or
in a landfill with an alternative design that meets the performance
standard and has been approved by the EPA Regional Administrator (or
the State Director, in authorized States).
Appendix II to the Preamble--Reportable Quantities
All hazardous wastes listed under RCRA and codified in 40 CFR
261.31 through 261.33, as well as any solid waste that is not
excluded from regulation as a hazardous waste under 40 CFR 261.4(b)
and that exhibits one or more of the characteristics of a RCRA
hazardous waste (as defined in Secs. 261.21 through 261.24), are
hazardous substances under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA), as amended (see
CERCLA section 101(14)(C)). CERCLA hazardous substances are listed
in Table 302.4 at 40 CFR 302.4 along with their reportable
quantities (RQs). If a hazardous substance is released in an amount
that equals or exceeds its RQ, the release must be reported
immediately to the National Response Center (NRC) pursuant to CERCLA
section 103.
A. Reporting Requirements
Under CERCLA section 103(a), the person in charge of a vessel or
facility from which a hazardous substance has been released in a
quantity that is equal to or exceeds its RQ must immediately notify
the NRC as soon as that person has knowledge of the release. The
toll-free telephone number of the NRC is 1-800-424-8802; in the
Washington, D.C., metropolitan area, the number is (202) 267-2675.
In addition to this reporting requirement under CERCLA, section 304
of the Emergency Planning and Community Right-to-Know Act of 1986
(EPCRA) requires owners or operators of certain facilities to report
releases of extremely hazardous substances and CERCLA hazardous
substances to State and local authorities. EPCRA section 304
notification must be given immediately after the release of an RQ or
more to the community emergency coordinator of the local emergency
planning committee for any area likely to be affected by the release
and to the State emergency response commission of any State likely
to be affected by the release.
Under section 102(b) of CERCLA, all hazardous substances (as
defined by CERCLA section 101(14)) have a statutory RQ of one pound,
unless and until the RQ is adjusted by regulation. In today's rule,
EPA is proposing to list cement kiln dust waste that is not
beneficially used and not managed in accordance with 40 CFR Part
259, or cement kiln dust waste that is beneficially used for
agricultural purposes and does not meet the requirements in 40 CFR
259.17. Such CKD would be added to the CERCLA list of hazardous
substances and would have an unadjusted statutory RQ of one-pound.
The Agency is also proposing today to adjust the one-pound statutory
RQ for CKD hazardous waste.
B. Basis for Proposed RQ Adjustment
EPA's methodology for adjusting the RQs of individual hazardous
substances begins with an evaluation of the intrinsic physical,
chemical, and toxicological properties of each hazardous substance.
The intrinsic properties examined, called ``primary criteria'', are
aquatic toxicity, mammalian toxicity (oral, dermal, and inhalation),
ignitability, reactivity, chronic toxicity, and potential
carcinogenicity.
Generally, for each intrinsic property, EPA ranks the hazardous
substance on a five-tier scale, associating a specific range of
values on each scale with an RQ value of 1, 10, 100, 1,000, or 5,000
pounds. Based on the various primary criteria, the hazardous
substance may receive several tentative RQ values. The lowest of the
tentative RQs becomes the ``primary criteria RQ'' for that
substance.
After the primary criteria RQ is assigned, the substance is
evaluated further for its susceptibility to certain degradative
processes, which are used as secondary RQ adjustment criteria. These
natural degradative processes are biodegradation, hydrolysis, and
photolysis (BHP). If a hazardous substance, when released into the
environment, degrades relatively rapidly to a less hazardous form by
one or more of the BHP processes, its primary criteria RQ is
generally raised one level. Conversely, if a hazardous substance
degrades to a more hazardous product after its release, the original
substance is assigned an RQ equal to the RQ for the more hazardous
substance, which may be one or more levels lower than the RQ for the
original substance.
The standard methodology used to adjust the RQs for RCRA
hazardous waste streams differs from the methodology applied to
individual hazardous substances. The procedure for assigning RQs to
RCRA waste streams is based on an analysis of the hazardous
constituents of the waste streams. The constituents of each RCRA
hazardous waste stream are identified in 40 CFR part 261, Appendix
VII. EPA determines an RQ for each constituent within the waste
stream and establishes the lowest RQ value of these constituents as
the adjusted RQ for the waste stream. Therefore, in today's rule,
the Agency is proposing a one-pound RQ for listed hazardous CKD
waste based on the one-pound RQs for arsenic and mercury (i.e., the
two constituents within this waste with the lowest RQ).
C. Application of the CERCLA Mixture Rule to Listed Hazardous CKD
Waste.
Although in today's rule EPA is proposing a one-pound RQ for
listed hazardous CKD waste, EPA is also proposing to modify its
interpretation of the mixture rule, as described below, to allow
facilities to use the maximum observed concentrations of the
constituents within listed hazardous CKD waste in determining when
to report releases of this waste.
For listed hazardous CKD waste, where the actual concentrations
of the hazardous constituents are not known, EPA is today proposing
that persons managing CKD waste have the option of reporting on the
basis of the maximum observed concentrations that have been
identified by EPA (see Table 2 below). Thus, although actual
knowledge of constituent concentrations may not be known,
constructive knowledge of the EPA-identified maximum concentrations
has been assumed. This assumption is based on actual sampling data,
specifically the maximum observed concentrations of hazardous
constituents in Listed hazardous CKD waste.48 Table 2
below identifies the
[[Page 45678]]
hazardous constituents for Listed hazardous CKD waste, their maximum
observed concentrations in parts per million (ppm), the
constituents' RQs, and the number of pounds of the waste needed to
contain an RQ of each constituent.
---------------------------------------------------------------------------
\48\ To review these sampling data, see Appendix E of the
Technical Background Document--Analysis of CKD Characteristics and
Generation Data, Office of Solid Waste, U.S. EPA, August 1994; The
document is located in the EPA RIC docket No F-94-RCKA-FFFFF.
Table 2.--Pounds Required to Contain RQ for Each Constituent of Listed Hazardous CKD Waste
----------------------------------------------------------------------------------------------------------------
Pounds required
Waste stream constituent Maximum ppm RQ (lb) to contain RQ
----------------------------------------------------------------------------------------------------------------
CKD................................................................ ........... 1 .................
antimony........................................................... 360 5,000 13,888,889
arsenic............................................................ 518 1 1,931
barium............................................................. 1,402 1,000 713,267
beryllium.......................................................... 12 10 817,661
cadmium............................................................ 1,540 10 6,494
chromium........................................................... 450 5,000 11,111,111
lead............................................................... 7,390 10 1,353
mercury............................................................ 60 1 16,667
nickel............................................................. 110 100 909,091
selenium........................................................... 307 100 325,733
silver............................................................. 58 1,000 17,271,157
thallium........................................................... 776 1,000 1,288,660
----------------------------------------------------------------------------------------------------------------
For example, if Listed hazardous CKD waste is released from a
facility, and the actual concentrations of the waste's constituents
are not known, it may be assumed that the concentrations will not
exceed those listed above in Table 2. Thus, applying the mixture
rule, the RQ threshold for lead in this waste is 1,353 pounds,
assuming the maximum concentration listed in Table 2. Reporting
would be required only when an RQ or more of any hazardous
constituent is released.
Where the concentration levels of all hazardous constituents are
known, the traditional mixture rule would apply. Under this
scenario, if the actual concentration of lead is 100 ppm, 100,000
pounds of the Listed hazardous CKD waste would need to be released
to reach the RQ for lead. As applied to Listed hazardous CKD waste,
EPA's proposed approach reduces the burden of notification
requirements for the regulated community and adequately protects
human health and the environment.
The modified interpretation of the mixture rule as it applies to
Listed hazardous CKD waste in today's proposal is consistent with
EPA's approach in a recent final rule listing four petroleum
refining wastes (K169, K170, K171, and K172) as RCRA hazardous
wastes and CERCLA hazardous substances (See 63 FR 42110, August 6,
1998). In that rule, the Agency promulgated a change in its
interpretation of the mixture rule to allow facilities to consider
the maximum observed concentrations for the constituents of the
petroleum refining wastes in determining when to report releases of
the four wastes. EPA codified this change to its mixture rule
interpretation in 40 CFR 302.6(b)(1) as a new subparagraph (iii). If
the Agency should take the rule final, EPA will revise this same
subparagraph to extend the modified interpretation of the mixture
rule to include Listed hazardous CKD waste.
D. Unlisted RCRA Characteristic Waste
Kiln dust waste that is beneficially used (other than for
agricultural purposes) or managed in accordance with 40 CFR Part
259, would not be listed as a RCRA hazardous waste or CERCLA
hazardous substance by this rulemaking. Nevertheless, such wastes
may be a listed hazardous waste if there is a significant violation
of the 40 CFR Part 259 standards, or considered unlisted CERCLA
hazardous substances (as described in 40 CFR 302.4(b)) when all of
the following conditions are met:
(1) the waste is a solid waste, as defined by 40 CFR 261.2;
(2) the waste is not excluded from regulation as a hazardous
waste under 40 CFR 261.4(b); and,
(3) the waste exhibits any of the characteristics (i.e.,
ignitability, corrosivity, reactivity, or toxicity) of a RCRA
hazardous waste (defined in 40 CFR 261.20 through 261.24).
Under proposed revisions to 40 CFR 261.4(b) included in today's
rule, most CKD wastes have been excluded from regulation as a
hazardous waste. Of the CKD wastes that are not excluded, few are
expected to exhibit RCRA characteristics. As stated elsewhere in
this preamble, cement kiln dust itself does not exhibit the RCRA
hazardous waste characteristic of corrosivity, and the waste
exhibits the toxicity characteristic infrequently, and only for
certain metals. Therefore, CKD waste only rarely is expected to
qualify as a RCRA characteristic waste and, thus, an unlisted CERCLA
hazardous substance.
For the reasons set out in this preamble, title 40, chapter I of
the Code of Federal Regulations is proposed to be amended as follows:
1. Part 259 is added to read as follows:
PART 259--MANAGEMENT STANDARDS FOR CEMENT KILN DUST WASTE
Subpart A--General Provisions
Sec.
259.1 Purpose, scope, and applicability.
259.2 Definitions.
259.3-259.9 [Reserved]
Subpart B--Location Restrictions
259.10 Placement above the natural water table.
259.11 Floodplains.
259.12 Wetlands.
259.13 Fault areas.
259.14 Seismic impact zones.
259.15 Unstable areas.
259.16 Karst terrains.
259.17 Regulation of agricultural use.
259.18-259.19 [Reserved]
Subpart C--Air Criteria
259.20 Air criteria for tanks, containers, or buildings.
259.21 Air criteria for trucks transporting cement kiln dust.
259.22 Air criteria for landfills.
259.23 Recordkeeping requirements.
259.24-259.29 [Reserved]
Subpart D--Design Criteria
259.30 Design criteria.
259.31-259.39 [Reserved]
Subpart E--Ground-Water Monitoring and Corrective Action
259.40 Applicability.
259.41 Ground-water monitoring systems.
259.42 [Reserved]
259.43 Ground-water sampling and analysis requirements.
259.44 Detection monitoring program.
259.45 Assessment monitoring program.
259.46 Assessment of corrective measures.
259.47 Selection of remedy.
259.48 Implementation of the corrective action program.
259.49 [Reserved]
Subpart F--Closure and Post-Closure Care
259.50 Closure criteria.
259.51 Post-closure care requirements.
259.52-259.59 [Reserved]
Subpart G--Financial Assurance Criteria
259.60 Applicability.
259.61 Financial assurance for closure.
259.62 Financial assurance for post-closure care.
[[Page 45679]]
259.63 Financial assurance for corrective action.
259.64 Allowable mechanisms.
259.65 Discounting.
Appendix I to Part 259--Constituents for Detection Monitoring
Authority: 42 U.S.C. 6912(a), 6912(b)(3)(C) and 6924(x).
Subpart A--General Provisions
Sec. 259.1 Purpose, scope, and applicability.
(a) The purpose of this part is to establish minimum national
criteria for all cement kiln dust waste landfill (CKDLF) units. These
minimum national criteria ensure the protection of human health and the
environment.
(b) Regulations in this part apply to any cement kiln dust (CKD)
waste actively managed [90 days after the effective date of the final
rule], except as otherwise specifically provided in paragraph (d) of
this section, including CKD managed in new CKDLF units, existing CKDLF
units, and expansions.
(c) These criteria do not apply to CKD managed prior to 90 days
after the date of publication of the final rule, except as otherwise
specifically provided in paragraph (d) of this section.
(d) CKDLF units that receive waste after the date of publication of
this proposal, but stop receiving waste before [the effective date of
the final rule], are exempt from all the requirements of this part 259,
except the final cover requirement specified in Sec. 259.50. The final
cover must be installed within six months of last receipt of CKD waste.
Units described in this paragraph that do not have a complete cover
installation within this six month period will be subject to all of the
requirements of this part 259, unless otherwise specified.
(e) The compliance date for all requirements of this part 259,
unless otherwise specified, is [two years after the effective date of
the final rule], for all CKDLF units that receive waste after [the
effective date of the final rule].
(f) Nothing in this part prevents, restricts, or regulates the
beneficial use of CKD as a stabilizer or solidifier during RCRA
cleanups under sections 3004(u), 3004(v) and 3008(h), CERCLA response
actions that are carried out in accordance with the requirements of 40
CFR Part 300--the National Oil and Hazardous Substances Pollution
Contingency Plan (NCP), or when the EPA Regional Administrator (or the
State, in authorized States) finds that the beneficial use of CKD in
other cases for remedial purposes is protective of human health and the
environment.
Sec. 259.2 Definitions.
This section contains definitions for terms that appear throughout
this part; additional definitions appear in the specific sections to
which they apply.
Active life means the period of operation beginning with the
initial receipt of CKD waste and ending at completion of closure
activities in accordance with Sec. 259.50.
Active management means a facility or unit that receives CKD waste
and that has not been closed in accordance with Sec. 259.50.
Aquifer means a geological formation, group of formations, or
portion of a formation capable of yielding significant quantities of
ground water to wells or springs.
Beneficial Use of CKD means the substitution of CKD for another
product based on similar properties. For purposes of today's proposed
rule, beneficial use of CKD includes, but is not restricted to, waste
stabilization and general construction (e.g., off-site management of
CKD as surface material in unpaved roads and parking lots).
Carbonate terrain means terrain composed of carbonate bedrock
(e.g., limestone or dolomite) that consists chiefly of carbonate
minerals such as calcite and dolomite. In addition to limestone and
dolomite, carbonate terrains may also contain variable amounts of
aluminous shale, calcareous muds, and sands.
Cement kiln dust waste (CKD) means the fine particulate solids,
associated with the production of Portland cement, which are collected
by air pollution control devices used to clean the kiln exhaust.
Cement kiln dust waste landfill (CKDLF) unit means a discrete area
of land or an excavation that receives CKD waste, and that is not a
land application unit, surface impoundment, waste pile, as those terms
are defined under Sec. 257.2 of this chapter, or injection well as
defined by 40 CFR Parts 144 and 146. A CKDLF unit may receive other
types of non-hazardous industrial wastes, such as kiln brick,
construction debris, mining overburden and other commercial solid waste
(as defined in Sec. 258.2 of this chapter). A CKDLF unit may be a new
CKDLF unit, an existing CKDLF unit, or an expansion of an existing
CKDLF unit.
EPA Regional Administrator means the chief administrative officer
of the EPA Region responsible for implementing the Subtitle C solid
waste permit program. This reference only applies to a State that has
not chosen to create a CKD regulatory program under State law. In
States with an authorized RCRA program, all references to the EPA
Regional Administrator should be read as referring to the State
Director, or other State official responsible for implementing the CKD
regulatory program.
Existing CKDLF unit means any cement kiln dust waste landfill unit
that is receiving CKD as of 90 days after the effective date of the
final rule. Waste placement must be consistent with past operating
practices or operating practices modified to ensure good management.
Facility means all contiguous land and structures, other
appurtenances, and improvements on the land used for the disposal of
CKD.
Ground water means water below the land surface in a zone of
saturation.
Expansion means a lateral or vertical expansion of the waste
boundaries of an existing CKDLF unit.
Leachate means a liquid that has passed through or emerged from CKD
and contains soluble, suspended, or miscible materials removed from
such waste.
New CKDLF unit means any cement kiln dust landfill unit or lateral
expansion of an existing CKDLF unit, that has not received waste prior
to 90 days after the effective date of the final rule.
Person(s) managing CKD waste means any person responsible for
transport, disposal or sale of any CKD waste, including owners and
operators of CKD waste landfills.
Run-off means any rainwater, leachate, or other liquid that drains
over land from any part of a facility.
Run-on means any rainwater, leachate, or other liquid that drains
over land onto any part of a facility.
Saturated zone means that part of the earth's crust in which all
voids are filled with water.
Uppermost aquifer means the geologic formation nearest the natural
ground surface that is an aquifer, as well as, lower aquifers that are
hydraulically interconnected with this aquifer within the facility's
property boundary. This definition specifically includes discontinuous
aquifers which are perched.
Waste management unit boundary means a vertical surface located at
the hydraulically downgradient limit of the unit. This vertical surface
extends down into the uppermost aquifer.
Secs. 259.3-259.9 [Reserved]
Subpart B--Location Restrictions
Sec. 259.10 Placement above the natural water table.
(a) CKD must be managed in a CKDLF unit with a base that is located
above
[[Page 45680]]
the upper limit of the natural water table.
(b) For purposes of this section natural water table means the
natural level at which water stands in a shallow well open along its
length and penetrating the surficial deposits just deeply enough to
encounter standing water at the bottom. This level is uninfluenced by
ground-water pumping or other engineered activities.
Sec. 259.11 Floodplains.
(a) CKD shall not be managed in a CKDLF unit located in a 100-year
floodplain unless a demonstration is made to the EPA Regional
Administrator that the unit will not restrict the flow of the 100-year
flood, reduce the temporary water storage capacity of the floodplain,
or result in washout of solid waste so as to pose a hazard to human
health and the environment. The person managing CKD waste must place a
demonstration in the operating record and notify the EPA Regional
Administrator that the demonstration has been placed in the operating
record.
(b) For purposes of this Section:
(1) Floodplain means the lowland and relatively flat areas
adjoining inland and coastal waters, including flood-prone areas of
offshore islands, that are inundated by the 100-year flood.
(2) 100-year flood means a flood that has a 1-percent or greater
chance of recurring in any given year or a flood of a magnitude equaled
or exceeded once in 100 years on the average over a significantly long
period.
(3) Washout means the carrying away of solid waste by waters of the
base flood.
Sec. 259.12 Wetlands.
(a) CKD shall not be managed in CKDLF units located in wetlands,
unless the following demonstrations are made to the EPA Regional
Administrator:
(1) Where applicable under section 404 of the Clean Water Act or
applicable State wetlands laws, the presumption that a practicable
alternative to the proposed landfill is available which does not
involve wetlands is clearly rebutted;
(2) The construction and operation of the CKDLF unit will not:
(i) Cause or contribute to violations of any applicable State water
quality standard,
(ii) Violate any applicable toxic effluent standard or prohibition
under section 307 of the Clean Water Act,
(iii) Jeopardize the continued existence of endangered or
threatened species or result in the destruction or adverse modification
of a critical habitat, protected under the Endangered Species Act of
1973, and
(iv) Violate any requirement under the Marine Protection, Research,
and Sanctuaries Act of 1972 for the protection of a marine sanctuary;
(3) The CKDLF unit will not cause or contribute to significant
degradation of wetlands. The integrity of the CKDLF unit and its
ability to protect ecological resources must be demonstrated by
addressing the following factors:
(i) Erosion, stability, and migration potential of native wetland
soils, muds and deposits used to support the CKDLF unit;
(ii) Erosion, stability, and migration potential of dredged and
fill materials used to support the CKDLF unit;
(iii) The volume and chemical nature of the waste managed in the
CKDLF unit;
(iv) Impacts on fish, wildlife, and other aquatic resources and
their habitat from release of the solid waste;
(v) The potential effects of catastrophic release of waste to the
wetland and the resulting impacts on the environment; and
(vi) Any additional factors, as necessary, to demonstrate that
ecological resources in the wetland are sufficiently protected.
(4) To the extent required under section 404 of the Clean Water Act
or applicable State wetlands laws, steps have been taken to attempt to
achieve no net loss of wetlands (as defined by acreage and function) by
first avoiding impacts to wetlands to the maximum extent practicable as
required by paragraph (a)(1) of this Section, then minimizing
unavoidable impacts to the maximum extent practicable, and finally
offsetting remaining unavoidable wetland impacts through all
appropriate and practicable compensatory mitigation actions (e.g.,
restoration of existing degraded wetlands or creation of man-made
wetlands); and (5) Sufficient information is available to make a
reasonable determination with respect to these demonstrations.
(b) For purposes of this section, wetlands means those areas that
are defined in 40 CFR 232.2(r).
(c) Nothing in this section affects the applicability of any other
statute or regulation affecting management of CKD in wetlands,
including the permitting requirements under section 404 of the Clean
Water Act.
Sec. 259.13 Fault areas.
(a) CKD shall not be managed in a CKDLF unit located within 200
feet (60 meters) of a fault that has had displacement in Holocene time
unless a demonstration is made to the EPA Regional Administrator that
an alternative setback distance of less than 200 feet (60 meters) will
prevent damage to the structural integrity of the CKDLF unit and will
be protective of human health and the environment.
(b) For the purposes of this section:
(1) Fault means a fracture or a zone of fractures in any material
along which strata on one side have been displaced with respect to that
on the other side.
(2) Displacement means the relative movement of any two sides of a
fault measured in any direction.
(3) Holocene means the most recent epoch of the Quaternary period,
extending from the end of the Pleistocene Epoch to the present.
Sec. 259.14 Seismic impact zones.
(a) CKD shall not be managed in CKDLF units located in seismic
impact zones, unless a demonstration is made to the EPA Regional
Administrator that all containment structures, including liners,
leachate collection systems, and surface water control systems, are
designed to resist the maximum horizontal acceleration in lithified
earth material for the site. The person managing CKD waste must place
the demonstration in the operating record and notify the EPA Regional
Administrator that it has been placed in the operating record.
(b) For the purposes of this Section:
(1) Seismic impact zone means an area with a ten percent or greater
probability that the maximum horizontal acceleration in lithified earth
material, expressed as a percentage of the earth's gravitational pull
(g), will exceed 0.10g (i.e., 98.0 centimeters per second per second)
in 250 years.
(2) Maximum horizontal acceleration in lithified earth material
means the maximum expected horizontal acceleration depicted on a
seismic hazard map, with a 90 percent or greater probability that the
acceleration will not be exceeded in 250 years, or the maximum expected
horizontal acceleration based on a site-specific seismic risk
assessment.
(3) Lithified earth material means all rock, including all
naturally occurring and naturally formed aggregates or masses of
minerals or small particles of older rock that formed by
crystallization of magma or by induration of loose sediments. This term
does not include man-made materials, such as fill, concrete, and
asphalt, or unconsolidated earth materials, soil, or regolith lying at
or near the earth surface.
[[Page 45681]]
Sec. 259.15 Unstable areas.
(a) CKD shall not be managed in CKDLF units located in an unstable
area unless a demonstration is made to the EPA Regional Administrator
that engineering measures have been incorporated into the CKDLF unit's
design to ensure that the integrity of the structural components of the
CKDLF unit will not be disrupted. The person managing CKD waste must
place the demonstration in the operating record and notify the EPA
Regional Administrator that it has been placed in the operating record.
The following factors, at a minimum, must be considered when
determining whether an area is unstable:
(1) On-site or local soil conditions that may result in significant
differential settling;
(2) On-site or local geologic or geomorphologic features; and
(3) On-site or local human-made features or events (both surface
and subsurface).
(b) For purposes of this Section:
(1) Unstable area means a location that is susceptible to natural
or human-induced events or forces capable of impairing the integrity of
some or all of the landfill structural components responsible for
preventing releases from a landfill. Unstable areas can include poor
foundation conditions, areas susceptible to mass movements, and karst
terrains.
(2) Structural components means liners, leachate collection
systems, final covers, run-on/run-off systems, and any other component
used in the construction and operation of the CKDLF that is necessary
for protection of human health and the environment.
(3) Poor foundation conditions means those areas where features
exist which indicate that a natural or human-induced event may result
in inadequate foundation support for the structural components of a
CKDLF unit.
(4) Areas susceptible to mass movement means those areas of
influence (i.e., areas characterized as having an active or substantial
possibility of mass movement) where the movement of earth material at,
beneath, or adjacent to the CKDLF unit, because of natural or human-
induced events, results in the downslope transport of soil and rock
material by means of gravitational influence. Areas of mass movement
include, but are not limited to, landslides, avalanches, debris slides
and flows, soil fluction, block sliding, and rock fall.
Sec. 259.16 Karst terrains.
(a) CKD shall not be managed in CKDLF units located in karst
terrain unless a demonstration is made to the EPA Regional
Administrator that engineering measures have been incorporated into the
CKDLF unit's design to ensure that the integrity of the structural
components of the CKDLF unit will not be disrupted. The person managing
CKD waste must place the demonstration in the operating record and
notify the EPA Regional Administrator that it has been placed in the
operating record. The following factors, at a minimum, must be
considered when determining whether a terrain is karstic:
(1) On-site or local geologic or geomorphologic features;
(2) On-site or local soil conditions that may result in significant
differential settling, collapse, or puncture of a landfill liner;
(3) On-site hydrology, including the character and direction of
ground-water flow and points of discharge for the karst ground-water
basin the facility may affect; and
(4) On-site or local human-made features or events (both surface
and subsurface).
(b) For purposes of this Section:
(1) Karst terrains means areas where karst landscape, with its
characteristic hydrogeology and/or landforms are developed. In karst
terrain, ground-water flow generally occurs through an open system with
both diffuse and conduit flow end member components, and typically has
rapid ground-water flow velocities which exceed Darcian flow
velocities. Composed of limestone, dolomite, gypsum and other soluble
rock, karst terrain typically has well developed secondary porosity
enhanced by dissolution. Landforms found in karst terrain include, but
are not limited to, sinkholes, sinking streams, caves, springs and
blind valleys. Karst terrains always include one or more springs for
each ground-water basin, and underground streams except where ground-
water flow is diffuse or the host rock has megaporosity.
(2) Structural components means liners, leachate collection
systems, final covers, run-on/run-off systems, and any other component
used in the construction and operation of the CKDLF that is necessary
for protection of human health and the environment.
(3) Conduit flow means nonlinear to turbulent ground-water flow
through an integrated system of conduits which behave hydraulically as
a system of pipes. Conduit flow is typical of ground-water flow through
thick, massive soluble rock such as limestone, where ground water is
concentrated, flow is rapid and specific discharges are high. Turbulent
conduit flow can be initiated in fractures as thin as 5 to 10
millimeters.
(4) Darcian flow means ground-water flow which follows Darcy's law,
where the specific discharge is proportional to the hydraulic gradient.
Darcian ground-water flow is typically linear and laminar, travels from
1 x 10-11 to 1 x 10\2\ centimeters per second, and is
characteristic of ground-water flow through granular porous media.
(5) Diffuse flow means ground-water flow which is laminar and slow
(within the range of Darcian flow velocities) through a system of
joints and bedding planes that have had minimal solution enlargement.
Sec. 259.17 Regulation of agricultural use.
CKD shall not be used for agricultural purposes unless the CKD is
mixed with sewage sludge and subject to 40 CFR Part 503 standards, or
the waste meets the following requirements:
(a) CKD must not contain the toxic constituents arsenic, cadmium,
lead, and thallium in excess of the following limits: arsenic--13 mg/
kg, cadmium--22 mg/kg, lead--1500 mg/kg, and thallium--15 mg/kg.
(b) CKD must not contain chlorinated dioxins and furans in excess
of 40 parts per trillion toxicity equivalent (TEQ).
(c) CKD destined for agricultural use must be sampled and analyzed
by the generator prior to shipment for agricultural use to determine
whether the waste has concentrations of toxic constituents in excess of
those established in paragraphs (a) and (b) of this section.
(d) For all CKD shipped for beneficial agricultural use, the person
generating CKD waste shall place in the operating record a notation
listing the amount of CKD shipped and a letter of certification signed
by a company representative verifying compliance with the provisions
specified under paragraphs (a) and (b) of this section.
(e) For purposes of this section, agricultural use is defined as
use of CKD as an agricultural lime substitute for the purpose of
amending the soil to optimize pH or to promote the growth of crops or
other foodstuffs. The Agency restricts this definition of use to CKD
produced for use by the general public and not for the exclusive use of
the owner or operator of the facility which generates the CKD waste.
Secs. 259.18-259.19 [Reserved]
Subpart C--Air Criteria
Sec. 259.20 Air criteria for tanks, containers, or buildings.
(a) This section applies to cement kiln dust waste placed in
temporary storage.
[[Page 45682]]
Such CKD must be covered or otherwise managed to control wind dispersal
of dusts, or stored in tanks, containers or buildings that meet the
following minimum standards:
(1) The tank, container, or building should be an engineered
structure with a human-made floor, walls, and a roof all of which
prevent water from reaching the stored CKD and are made of non-earthen
materials providing structural support.
(2) The tank, container, or building must be free standing and not
a surface impoundment (as defined in 40 CFR 257.2), be manufactured of
a material suitable for storage of its contents, and meet appropriate
specifications such as those established by either ASTM, API, or UL
standards.
(b) For purposes of this section, temporary storage means interim
storage of CKD designated for recycling, sale or final disposal.
(c) Alternative measures for fugitive dust control may be approved
by the EPA Regional Administrator if a demonstration is made to the EPA
Regional Administrator that the alternative measures are at least as
effective in controlling wind dispersal of CKD as the minimum standards
defined in paragraph (a) of this section. The person managing CKD waste
must place the demonstration in the operating record and notify the EPA
Regional Administrator that it has been placed in the operating record.
Sec. 259.21 Air criteria for trucks transporting cement kiln dust.
(a) CKD waste transported in trucks or other vehicles must be
covered or otherwise managed to control wind dispersal of dust.
(b) Alternative measures for fugitive dust control may be approved
by the EPA Regional Administrator if a demonstration is made to the EPA
Regional Administrator that the alternative measures are at least as
effective in controlling wind dispersal of CKD as the standards defined
in paragraph (a) of this section. The person managing CKD waste must
place the demonstration in the operating record and notify the EPA
Regional Administrator that it has been placed in the operating record.
Sec. 259.22 Air criteria for landfills.
(a) CKD disposed in all CKDLF units must be managed in a manner
that does not violate any applicable requirements developed under a
State Implementation Plan (SIP) approved or promulgated by the
Administrator pursuant to section 110 of the Clean Air Act, as amended.
(b) CKD must be disposed in CKDLF units and expansions constructed
so that such CKD is:
(1) Covered or otherwise managed to control wind dispersal of dust,
or
(2) Emplaced as conditioned CKD to control wind dispersal, and
(3) Covered with a sufficient thickness of earthen material at the
end of each operating day, or at more frequent intervals if necessary,
except as provided in paragraph (d) of this section, to control blowing
dust.
(c) For purposes of this section conditioned CKD means cement kiln
dust that has been compacted in the field at appropriate moisture
content using moderate to heavy equipment to attain 95% of the standard
Proctor maximum dry density value according to ASTM D 698 or D 1557
test methods.
(d) Alternative measures for fugitive dust control may be approved
by the EPA Regional Administrator if a demonstration is made to the EPA
Regional Administrator that the alternative measures are at least as
effective in controlling wind dispersal of CKD as the minimum standards
defined in paragraphs (a), (b), and (c) of this section. The person
managing CKD waste must place the demonstration in the operating record
and notify the EPA Regional Administrator that it has been placed in
the operating record.
Sec. 259.23 Recordkeeping requirements.
(a) An operating record of a CKDLF unit must be retained at the
facility and/or in an alternative location approved by the EPA Regional
Administrator. The following information must be recorded in the
operating record as it becomes available:
(1) Any notification of violation required under paragraph (c) of
this section;
(2) Any certification of compliance required under paragraph (d) of
this section;
(3) Any location restriction demonstration required under Subpart
B;
(4) Any CKDLF unit design documentation;
(5) Any demonstration, certification, finding, monitoring, testing,
or analytical data required by Subpart E;
(6) Any demonstration, certification, testing, or analytical data
required by Sec. 259.17(d);
(7) Any plans for selected remedies as required by Sec. 259.47;
(8) Closure and post-closure care plans and any monitoring,
testing, or analytical data as required by Secs. 259.50 and 259.51; and
(9) Any cost estimates and financial assurance documentation
required by Subpart G of this part G.
(b) The person managing CKD waste must notify the EPA Regional
Administrator when the documents from paragraph (a) of this section
have been placed or added to the operating record, and all information
contained in the operating record must be made available for inspection
by the public at all reasonable times, and furnished upon request to
the EPA Regional Administrator.
(c) The person managing CKD waste must notify the EPA Regional
Administrator, in a letter signed by company management, whenever any
standard of this rule is violated.
(d) The person managing CKD waste must submit a certification to
the EPA Regional Administrator, signed by company management, once each
year: throughout the active life and post-closure care period that a
new or existing CKDLF unit is in compliance with the air criteria,
ground-water monitoring, and corrective action provisions of subparts C
and E of this part; and throughout the active life of the facility that
all CKD managed on-site or sent off-site for beneficial use is disposed
in compliance with all applicable provisions of this part. The
certification must also certify that all records from paragraph (a) of
this section are properly maintained and available to the public in
accordance with the provisions of paragraph (b) of this section.
(e) The EPA Regional Administrator can set alternative schedules
for recordkeeping and notification requirements as specified in
paragraphs (a), (b), (c), (d) and (e) of this section.
Secs. 259.24-259.29 [Reserved]
Subpart D--Design Criteria
Sec. 259.30 Design criteria.
(a) Prior to construction of a CKDLF unit in carbonate terrain, a
karst ground-water investigation must be conducted to define the
direction of ground-water flow and points of discharge for the karst
ground-water basin(s) the facility may affect. The karst ground-water
investigation shall include, but not be limited to, a karst inventory
and a dye tracer study to identify springs which are hydrologically
related to the CKDLF unit. The investigation must be certified by a
qualified ground-water scientist and approved by the EPA Regional
Administrator.
(b) The requirement for a karst ground-water investigation under
this part may be suspended by the EPA Regional Administrator for a
CKDLF unit if a demonstration is made that there is no potential for
migration of
[[Page 45683]]
hazardous constituents from that CKDLF unit to the uppermost aquifer
(as defined in Sec. 259.2) during the active life of the unit and the
post-closure care period. This demonstration must be certified by a
qualified ground-water scientist and approved by the EPA Regional
Administrator, and must be based upon:
(1) Site-specific field collected measurements, sampling and
analysis of physical, chemical, and biological processes affecting
contaminant fate and transport, and
(2) Contaminant fate and transport predictions that maximize
contaminant migration and consider impacts on human health and
environment.
(c) CKD must be managed in CKDLF units and lateral expansions
constructed:
(1) In accordance with a design which ensures that the
concentration values listed in Table 1 of this section shall not be
exceeded in the uppermost aquifer at the relevant point of compliance
(POC), as specified under paragraph (d) of this section, or
(2) With a composite liner, as defined in paragraph (d) of this
section and a leachate collection system that is designed and
constructed to maintain less than a 30 cm depth of leachate over the
liner.
(d) For purposes of this Section, composite liner means a system
consisting of two components; the upper component must consist of a
minimum 30 mil flexible membrane liner (FML), and the lower component
must consist of at least a two-foot layer of compacted soil with a
hydraulic conductivity of no more than 1x10E-7 cm/sec. FML
components consisting of high density polyethylene (HDPE) shall be at
least 60 mil thick. The FML component must be installed in direct and
uniform contact with the compacted soil component.
(e) When designing a CKDLF unit that complies with paragraph (c)(1)
of this section, the following factors, at a minimum, must be
considered:
(1) The hydrologic characteristics of the facility and surrounding
land, especially the presence of karst terrain;
(2) The climatic factors of the area; and
(3) The volume and physical and chemical characteristics of the
leachate.
(f) The relevant POC shall be no more than 150 meters from the
waste management unit boundary and shall be located on land owned by
the owner of the CKDLF unit. In determining the relevant POC, the
following factors shall be considered:
(1) The hydrogeologic characteristics of the facility and
surrounding land;
(2) The volume and physical and chemical characteristics of the
leachate;
(3) The quantity, quality, and direction of flow of ground water;
(4) The proximity and withdrawal rate of the ground-water users;
(5) The availability of alternative drinking water supplies;
(6) The existing quality of the ground water, including other
sources of contamination and their cumulative impacts on the ground
water, and whether the ground water is currently used or reasonably
expected to be used for drinking water; and
(7) Public health, safety, and welfare effects.
Table 1.--Concentration Limits for Metals in the Uppermost Aquifer
------------------------------------------------------------------------
Chemical MCL (mg/l)
------------------------------------------------------------------------
Antimony................................................... 0.006
Arsenic.................................................... 0.05
Barium..................................................... 2.0
Beryllium.................................................. 0.004
Cadmium.................................................... 0.005
Chromium (total)........................................... 0.1
Lead....................................................... 0.015a
Mercury.................................................... 0.002
Selenium................................................... 0.05
Silver..................................................... 0.01b
Thallium................................................... 0.002
------------------------------------------------------------------------
a EPA Action level.
b Federal Secondary Drinking Water MCL.
(g) The person managing CKD waste must notify the EPA Regional
Administrator when the documents from paragraph (a) of this section
have been placed or added to the operating record, and all information
contained in the operating record must be made available for inspection
by the public at all reasonable times, and furnished upon request to
the EPA Regional Administrator.
(h) Alternative CKDLF unit designs may be approved by the EPA
Regional Administrator if a demonstration is made that the alternative
unit designs protect ground water without presenting a threat to human
health and the environment.
Secs. 259.31-259.39 [Reserved]
Subpart E--Ground-Water Monitoring and Corrective Action
Sec. 259.40 Applicability.
(a) The requirements in this part apply to all new and existing
CKDLF units, except as provided in paragraph (b) of this section.
(b) Ground-water monitoring requirements under Secs. 259.41 through
259.45 may be suspended by the EPA Regional Administrator for a CKDLF
unit if a demonstration is made that there is no potential for
migration of hazardous constituents from that CKDLF unit to the
uppermost aquifer (as defined in Sec. 259.2) during the active life of
the unit and the post-closure care period. This demonstration must be
certified by a qualified ground-water scientist and approved by the EPA
Regional Administrator, and must be based upon:
(1) Site-specific field collected measurements, sampling, and
analysis of physical, chemical, and biological processes affecting
contaminant fate and transport, and
(2) Contaminant fate and transport predictions that maximize
contaminant migration and consider impacts on human health and the
environment.
(c) Persons managing CKD waste in CKDLF units must comply with the
ground-water monitoring requirements of this part according to the
following schedule:
(1) Existing CKDLF units must be in compliance with the ground-
water monitoring requirements specified in Secs. 259.41 through 259.45
by two years after the effective date of the rule;
(2) New CKDLF units and expansions of existing CKDLF units must be
in compliance with the ground-water monitoring requirements specified
in Secs. 259.41 through 259.45 before cement kiln dust waste can be
placed in the unit.
(d) The person managing CKD waste must notify the EPA Regional
Administrator once each year throughout the active life and post-
closure care period that a new or existing CKDLF unit is in compliance
with the ground-water monitoring and corrective action provisions of
this Subpart.
(e) Once established at a CKDLF unit, ground-water monitoring shall
be conducted throughout the active life and post-closure care period of
that CKDLF unit as specified in Sec. 259.51.
(f) For the purposes of this subpart, a qualified ground-water
scientist is a scientist or engineer who has received a baccalaureate
or post-graduate degree in the natural sciences or engineering and has
sufficient training and experience in groundwater hydrology and related
fields as may be demonstrated by State registration, professional
certifications, or completion of accredited university programs that
enable that individual to make sound professional judgements regarding
ground-water monitoring, contaminant fate and transport, and corrective
action, particularly as they relate to karst terrain.
[[Page 45684]]
Sec. 259.41 Ground-water monitoring systems.
(a) A ground-water monitoring system must be installed that
consists of a sufficient number of wells and/or springs, installed at
appropriate locations and depths, to yield ground-water samples from
the uppermost aquifer (as defined in Sec. 259.2). The ground-water
monitoring system must include at a minimum one up-gradient and three
down-gradient wells. Ground-water samples must:
(1) Represent the quality of background ground water that has not
been affected by leakage from the unit being monitored. A determination
of background quality may include sampling of wells and/or springs that
are not hydraulically upgradient of the waste management area where:
(i) Hydrogeologic conditions do not allow the person managing CKD
waste to determine what wells and springs are hydraulically upgradient;
or
(ii) Sampling at other wells and springs will provide an indication
of background ground-water quality that is as representative or more
representative than that provided by the upgradient wells and springs;
and
(2) Represent the quality of ground water passing the relevant POC.
The downgradient monitoring system must be installed at the relevant
POC (or at the waste management unit boundary) that ensures detection
of ground-water contamination in the uppermost aquifer. When physical
obstacles preclude installation of ground-water monitoring wells at the
relevant POC at existing units, the down-gradient monitoring system may
be installed at the closest practicable distance hydraulically down-
gradient from the relevant POC that ensures detection of ground-water
contamination in the uppermost aquifer.
(b) A multi-unit ground-water monitoring system may be installed
instead of separate ground-water monitoring systems for each CKDLF unit
when the facility has several units, provided the multi-unit ground-
water monitoring system meets the requirement of paragraph (a) of this
section and will be as protective of human health and the environment
as individual monitoring systems for each CKDLF unit, based on the
following factors:
(1) Number, spacing, and orientation of the CKDLF units;
(2) Hydrogeologic setting;
(3) Site history; and
(4) Engineering design of the CKDLF units.
(c) Monitoring wells must be cased in a manner that maintains the
integrity of the monitoring well bore hole. This casing must be
screened or perforated and packed with gravel or sand, where necessary,
to enable collection of ground-water samples. The annular space (i.e.,
the space between the bore hole and well casing) above the sampling
depth must be sealed to prevent contamination of samples and the ground
water.
(1) The person managing CKD waste must notify the EPA Regional
Administrator that the design, installation, development, and
decommission of any monitoring wells, piezometers and other
measurement, sampling, and analytical devices documentation has been
placed in the operating record; and
(2) The monitoring wells, springs, piezometers, and other
measurement, sampling, and analytical devices must be operated and
maintained so that they perform to design specifications throughout the
life of the monitoring program.
(d) The number, spacing, and depths of monitoring systems shall be:
(1) Determined based upon site-specific technical information that
must include thorough characterization of:
(i) Aquifer thickness, ground-water flow rate, ground-water flow
direction including seasonal and temporal fluctuations in ground-water
flow; and
(ii) Saturated and unsaturated geologic units and fill materials
overlying the uppermost aquifer, materials comprising the uppermost
aquifer, and materials comprising the confining unit defining the lower
boundary of the uppermost aquifer; including, but not limited to:
thicknesses, stratigraphy, lithology, hydraulic conductivities,
porosities and effective porosities.
(2) Certified by a qualified ground-water scientist or approved by
the EPA Regional Administrator. Within 14 days of this certification,
the person managing CKD waste must notify the EPA Regional
Administrator that the certification has been placed in the operating
record.
Sec. 259.42 [Reserved]
Sec. 259.43 Ground-water sampling and analysis requirements.
(a) The ground-water monitoring program must include consistent
sampling and analysis procedures that are designed to ensure monitoring
results that provide an accurate representation of ground-water quality
at the background and downgradient wells (and at springs respective to
site hydrogeology) installed in compliance with Sec. 259.41(a). The
person managing CKD waste must notify the EPA Regional Administrator
that the sampling and analysis program documentation has been placed in
the operating record and the program must include procedures and
techniques for:
(1) Sample collection;
(2) Sample preservation and shipment;
(3) Analytical procedures;
(4) Chain of custody control; and
(5) Quality assurance and quality control.
(b) The ground-water monitoring program must include sampling and
analytical methods that are appropriate for ground-water sampling and
that accurately measure hazardous constituents and other monitoring
parameters in ground-water samples. Ground-water samples shall not be
field-filtered prior to laboratory analysis.
(c) The sampling procedures and frequency must ensure protection of
human health and the environment.
(d) Ground-water elevations must be measured in each well
immediately prior to purging, each time ground water is sampled. The
rate and direction of ground-water flow must be determined each time
ground water is sampled. Ground-water elevations in wells which monitor
the same waste management area must be measured within a period of time
short enough to avoid temporal variations in ground-water flow which
could preclude accurate determination of ground-water flow rate and
direction.
(e) The background ground-water quality must be established in a
hydraulically upgradient or background well(s) (and spring(s) if
appropriate) for each of the monitoring parameters or constituents
required in the particular ground-water monitoring program that applies
to the CKDLF unit, as determined under Sec. 259.44(a) or
Sec. 259.45(a). Background ground-water quality may be established at
wells (and springs if appropriate) that are not located hydraulically
upgradient from the CKDLF unit if it meets the requirements of
Sec. 259.41(a)(1).
(f) The number of samples collected to establish ground-water
quality data must be consistent with the appropriate statistical
procedures determined pursuant to paragraph (g) of this section. The
sampling procedures shall be those specified under Sec. 259.44(b) for
detection monitoring, Sec. 259.45(b) and (d) for assessment monitoring,
and Sec. 259.46(b) for corrective action.
(g) One of the following statistical methods to be used in
evaluating ground-water monitoring data must be specified in the
operating record for each hazardous constituent. The statistical test
chosen shall be
[[Page 45685]]
conducted separately for each hazardous constituent in each well (and
spring if appropriate).
(1) A parametric analysis of variance (ANOVA) followed by multiple
comparisons procedures to identify statistically significant evidence
of contamination. The method must include estimation and testing of the
contrasts between each compliance well's mean and the background mean
levels for each constituent.
(2) An analysis of variance (ANOVA) based on ranks followed by
multiple comparisons procedures to identify statistically significant
evidence of contamination. The method must include estimation and
testing of the contrasts between each compliance well's median and the
background median levels for each constituent.
(3) A tolerance or prediction interval procedure in which an
interval for each constituent is established from the distribution of
the background data, and the level of each constituent in each
compliance well is compared to the upper tolerance or prediction limit.
(4) A control chart approach that gives control limits for each
constituent.
(5) Another statistical test method that meets the performance
standards of paragraph (h) of this section. The person managing CKD
waste must place a justification for this alternative in the operating
record and notify the EPA Regional Administrator of the use of this
alternative test. The justification must demonstrate that the
alternative method meets the performance standards of paragraph (h) of
this section.
(h) Any statistical method chosen under paragraph (g) of this
section shall comply with the following performance standards, as
appropriate:
(1) The statistical method used to evaluate ground-water monitoring
data shall be appropriate for the distribution of chemical parameters
or hazardous constituents. If the distribution of the chemical
parameters or hazardous constituents is shown by the person managing
CKD waste to be inappropriate for a normal theory test, then the data
should be transformed or a distribution-free theory test should be
used. If the distributions for the constituents differ, more than one
statistical method may be needed.
(2) If an individual well comparison procedure is used to compare
an individual compliance well constituent concentration with background
constituent concentrations or a ground-water protection standard, the
test shall be done at a Type I error level no less than 0.01 for each
testing period. If a multiple comparisons procedure is used, the Type I
experimental error rate for each testing period shall be no less than
0.05; however, the Type I error of no less than 0.01 for individual
well comparisons must be maintained. This performance standard does not
apply to tolerance intervals, prediction intervals, or control charts.
(3) If a control chart approach is used to evaluate ground-water
monitoring data, the specific type of control chart and its associated
parameter values shall be protective of human health and the
environment. The parameters shall be determined after considering the
number of samples in the background data base, the data distribution,
and the range of the concentration values for each constituent of
concern.
(4) If a tolerance interval or a predictional interval is used to
evaluate ground-water monitoring data, the levels of confidence and,
for tolerance intervals, the percentage of the population that the
interval must contain shall be protective of human health and the
environment. These parameters shall be determined after considering the
number of samples in the background data base, the data distribution,
and the range of the concentration values for each constituent of
concern.
(5) The statistical method shall account for data below the limit
of detection with one or more statistical procedures that are
protective of human health and the environment. Any practical
quantitation limit (pql) that is used in the statistical method shall
be the lowest concentration level that can be reliably achieved within
specified limits of precision and accuracy during routine laboratory
operating conditions that are available to the facility.
(6) If necessary, the statistical method shall include procedures
to control or correct for seasonal and spatial variability as well as
temporal correlation in the data.
(i) The person managing CKD waste must determine whether or not
there is a statistically significant increase over background values
for each parameter or constituent required in the particular ground-
water monitoring program that applies to the CKDLF unit, as determined
under Sec. 259.44(a) or Sec. 259.45(a).
(1) In determining whether a statistically significant increase has
occurred, the person managing CKD waste must compare the ground-water
quality of each parameter or constituent at each monitoring well (and
spring if appropriate) designated pursuant to Sec. 259.41(a)(2) to the
background value of that constituent, according to the statistical
procedures and performance standards specified under paragraphs (g) and
(h) of this section.
(2) Within 14 days after completing sampling and analysis, the
person managing CKD waste must determine whether there has been a
statistically significant increase over background at each monitoring
well and spring.
Sec. 259.44 Detection monitoring program.
(a) Detection monitoring is required at CKDLF units at all ground-
water monitoring wells (and springs if appropriate) defined under
Secs. 259.41 (a)(1) and (a)(2). At a minimum, a detection monitoring
program must include the monitoring for the constituents listed in
Appendix I to this part.
(1) The EPA Regional Administrator may delete any of the Appendix I
of this part monitoring parameters for a CKDLF unit if it can be shown
that the removed constituents are not reasonably expected to be in,
mobilized by, or derived from the CKD contained in the unit.
(2) The EPA Regional Administrator may establish an alternative
list of inorganic indicator parameters for a CKDLF unit, in lieu of
some or all of the heavy metals, if the alternative parameters provide
a reliable indication of inorganic releases from the CKDLF unit to the
ground water. In determining alternative parameters, the EPA Regional
Administrator shall consider the following factors:
(i) The types, quantities, and concentrations of constituents in
wastes managed at the CKDLF unit;
(ii) The mobility, stability, and persistence of waste constituents
or their reaction products in the unsaturated zone beneath the CKDLF
unit;
(iii) The detectability of indicator parameters, waste
constituents, and reaction products in the ground water; and
(iv) The concentration or values and coefficients of variation of
monitoring parameters or constituents in the ground-water background.
(b) The monitoring frequency for all constituents listed in
Appendix I to this part, or in the alternative list approved in
accordance with paragraph (a)(2) of this section, shall be at least
semiannual during the active life of the facility (including closure)
and the post-closure period. A minimum of four independent samples from
each background and downgradient well (and spring if appropriate) must
be collected and analyzed for the constituents listed in Appendix I of
this part, or the alternative list approved in accordance with
paragraph (a)(2) of this section,
[[Page 45686]]
during the first semiannual sampling event.
(c) At least one sample from each background and downgradient well
(and spring if appropriate) must be collected and analyzed during
subsequent semiannual sampling events. The EPA Regional Administrator
may specify an appropriate alternative frequency for repeated sampling
and analysis for constituents listed in Appendix I of this part, or the
alternative list approved in accordance with paragraph (a)(2) of this
Section, during the active life (including closure) and the post-
closure care period. The alternative frequency during the active life
(including closure) shall be no less than annual. The alternative
frequency shall be based on consideration of the following factors:
(1) Lithology of the aquifer and unsaturated zone;
(2) Hydraulic conductivity of the aquifer and unsaturated zone;
(3) Ground-water flow rates;
(4) Minimum distance between upgradient edge of the CKDLF unit and
downgradient monitoring well screen (minimum distance of travel);
(5) Storm hydrograph of springs, if appropriate; and
(6) Resource value of the aquifer.
(d) If the person managing CKD waste determines, pursuant to
Sec. 259.43(g), that there is a statistically significant increase over
background for one or more of the constituents listed in Appendix I to
this part at any monitoring well (or spring if appropriate) at the
boundary specified under Sec. 259.41(a)(2), the person managing CKD
waste:
(1) Must, within 14 days of this finding, place a notice in the
operating record indicating which constituents have shown statistically
significant changes from background levels, and notify the EPA Regional
Administrator of this finding that this notice was placed in the
operating record; and
(2) Must establish an assessment monitoring program meeting the
requirements of Sec. 259.45 within 90 days, except as provided for in
paragraph (c)(3) of this section.
(3) The owner/operator may demonstrate that a source other than a
CKDLF unit caused the contamination or that the statistically
significant increase resulted from error in sampling, analysis,
statistical evaluation, or natural variation in ground-water quality. A
report documenting this demonstration must be certified by a qualified
ground-water scientist and be placed in the operating record. If a
successful demonstration is made and documented, the person managing
CKD waste may continue detection monitoring as specified in this
Section. If, after 90 days, a successful demonstration is not made, the
person managing CKD waste must initiate an assessment monitoring
program as required in Sec. 259.45.
Sec. 259.45 Assessment monitoring program.
(a) Assessment monitoring is required whenever a statistically
significant increase over background has been detected for one or more
of the constituents listed in the Appendix I of this part.
(b) Within 90 days of triggering an assessment monitoring program,
and annually thereafter, the person managing CKD waste must sample and
analyze the ground water for the following hazardous metal constituents
identified in Appendix VIII of Part 261 of this chapter: antimony,
arsenic, barium, beryllium, cadmium, chromium (total), lead, mercury,
nickel, selenium, silver, and thallium. A minimum of one sample from
each downgradient well (and spring if appropriate) must be collected
and analyzed during each sampling event. For any constituent detected
in the downgradient wells (and springs if appropriate) as a result of
the metal constituent analysis of Appendix VIII of Part 261 of this
chapter, a minimum of four independent samples from each background and
downgradient well (and spring if appropriate) must be collected and
analyzed to establish background for the constituents. The EPA Regional
Administrator may specify an appropriate subset of wells (and springs
if appropriate) to be sampled and analyzed for metal constituents (as
listed in Appendix VIII of Part 261 of this chapter) during assessment
monitoring. The EPA Regional Administrator may delete any of the metal
constituent monitoring parameters required by paragraph (b) of this
section for a CKDLF unit if it can be shown that the removed
constituents are not reasonably expected to be in, mobilized by, or
derived from the waste contained in the unit.
(c) The EPA Regional Administrator may specify an appropriate
alternate frequency for repeated sampling and analysis for the set of
metal constituents (as listed in Appendix VIII of Part 261 of this
chapter) required by paragraph (b) of this Section, during the active
life (including closure) and post-closure care of the unit considering
the following factors:
(1) Lithology of the aquifer and unsaturated zone;
(2) Hydraulic conductivity of the aquifer and unsaturated zone;
(3) Ground-water flow rates;
(4) Minimum distance between upgradient edge of the CKDLF unit and
downgradient monitoring well screen (minimum distance of travel);
(5) Storm hydrograph of springs if appropriate: and
(6) Resource value of the aquifer; and
(7) Nature (fate and transport) of any constituents detected in
response to this Section.
(d) After obtaining the results from the initial or subsequent
sampling events required in paragraph (b) of this Section, the person
managing CKD waste must:
(1) Within 14 days, place a notice in the operating record
identifying the metal constituents (as listed in Appendix VIII of Part
261 of this chapter) that have been detected and notify the EPA
Regional Administrator of the identified constituents and that this
notice has been placed in the operating record;
(2) Within 90 days, and on at least a semiannual basis thereafter,
resample all wells (and springs if appropriate) specified by
Sec. 259.41(a), conduct analyses for all constituents in Appendix I of
this part, and for those metal constituents in Appendix VIII of Part
261 of this chapter that are detected in response to paragraph (b) of
this Section, and record their concentrations in the facility operating
record. At least one sample from each background and downgradient well
(and spring if appropriate) must be collected and analyzed during these
sampling events.
(3) Establish background concentrations for any constituents
detected pursuant to paragraph (b) or (d)(2) of this Section; and
(4) Establish ground-water protection standards for all
constituents detected pursuant to paragraph (b) or (d) of this Section.
The ground-water protection standards shall be established in
accordance with paragraph (h) of this Section.
(e) If the concentrations of all metal constituents (as listed in
Appendix VIII of Part 261 of this chapter) are shown to be at or below
background values, using the statistical procedures in Sec. 259.43(g),
for two consecutive sampling events, the person managing CKD waste must
notify the EPA Regional Administrator of this finding prior to
returning to detection monitoring.
(f) If the concentrations of any metal constituents (as listed in
Appendix VIII of Part 261 of this chapter) are above background values,
but all concentrations are below the ground-water protection standard
established under paragraph (h) of this Section,
[[Page 45687]]
using the statistical procedures in Sec. 259.43(g), the person managing
CKD waste must continue assessment monitoring in accordance with this
Section.
(g) If one or more metal constituents (as listed in Appendix VIII
of Part 261 of this chapter) are detected at statistically significant
levels above the ground-water protection standard established under
paragraph (h) of this section in any sampling event, the person
managing CKD waste must, within 14 days of this finding, place a notice
in the operating record identifying the metal constituents that have
exceeded the ground-water protection standard and notify the EPA
Regional Administrator and all appropriate local government officials
that the notice has been placed in the operating record. The person
managing CKD waste must also:
(1)(i) Characterize the nature and extent of the release by
installing additional monitoring wells as necessary;
(ii) Install at least one additional monitoring well at the
facility boundary in the direction of contaminant migration and sample
this well in accordance with paragraph (d)(2) of this Section;
(iii) Notify all persons who own the land or reside on the land
that directly overlies any part of the plume of contamination if
contaminants have migrated off-site if indicated by sampling of wells
(and springs if appropriate) in accordance with paragraph (g)(1) of
this section; and
(iv) Initiate an assessment of corrective measures as required by
Sec. 259.46 within 90 days; or
(2) May demonstrate that a source other than a CKDLF unit caused
the contamination, or that the SSI increase resulted from error in
sampling, analysis, statistical evaluation, or natural variation in
ground-water quality. A report documenting this demonstration must be
certified by a qualified ground-water scientist and placed in the
operating record. If a successful demonstration is made, the person
managing CKD waste must continue monitoring in accordance with the
assessment monitoring program pursuant to this section, and may return
to detection monitoring if the metal constituents (as listed in
Appendix VIII of part 261 of this chapter) are at or below background
as specified in paragraph (e) of this section. Until a successful
demonstration is made, the person managing CKD waste must comply with
paragraph (g) of this section including initiating an assessment of
corrective measures.
(h) The person managing CKD waste must establish a ground-water
protection standard for each metal constituent (as listed in Appendix
VIII of Part 261 of this chapter) detected in the ground water. The
ground-water protection standard shall be:
(1) For constituents for which a maximum contaminant level (MCL)
has been promulgated under section 1412 of the Safe Drinking Water Act
(codified) under 40 CFR Part 141, the MCL for that constituent;
(2) For constituents for which MCLs have not been promulgated, the
background concentration for the constituent established from wells in
accordance with Sec. 259.41(a)(1); or
(3) For constituents for which the background level is higher than
the MCL identified under paragraph (h)(1) of this section or health
based levels identified under paragraph (i)(1) of this section, the
background concentration.
(i) The Director of an approved State may establish an alternative
ground-water protection standard for constituents for which MCLs have
not been established. These ground-water protection standards shall be
appropriate health based levels that satisfy the following criteria:
(1) The level is derived in a manner consistent with Agency
guidelines for assessing the health risks of environmental pollutants;
(2) The level is based on scientifically valid studies conducted in
accordance with the Toxic Substances Control Act Good Laboratory
Practice Standards (40 CFR Part 792) or equivalent;
(3) For carcinogens, the level represents a concentration
associated with an excess lifetime cancer risk level (due to continuous
lifetime exposure) with the 1x10-4 to 1x10-6
range; and
(4) For systemic toxicants, the level represents a concentration to
which the human population (including sensitive subgroups) could be
exposed to on a daily basis that is likely to be without appreciable
risk of deleterious effects during a lifetime. For purposes of this
subpart, systemic toxicants include toxic chemicals that cause effects
other than cancer or mutations.
(j) In establishing ground-water protection standards under
paragraph (i) of this section, the Director of an approved State may
consider the following:
(1) Multiple contaminants in the ground water;
(2) Exposure threats to sensitive environmental receptors; and
(3) Other site-specific exposure or potential exposure to ground
water.
Sec. 259.46 Assessment of corrective measures.
(a) Within 90 days of finding that any of the metal constituents
listed in Appendix VIII of Part 261 of this chapter have been detected
at a statistically significant level exceeding the ground-water
protection standards defined under Sec. 259.45(h), the person managing
CKD waste must initiate an assessment of corrective measures. Such an
assessment must be completed within 90 days, or within an alternative
period of time decided by the EPA Regional Administrator.
(b) The person managing CKD waste must continue to monitor in
accordance with the assessment monitoring program as specified in
Sec. 259.45.
(c) The assessment shall include an analysis of the effectiveness
of potential corrective measures in meeting all of the requirements and
objectives of the remedy as described under Sec. 259.47, addressing at
least the following:
(1) The performance, reliability, ease of implementation, and
potential impacts of appropriate potential remedies, including safety
impacts, cross-media impacts, and control of exposure to any residual
contamination;
(2) The time required to begin and complete the remedy;
(3) The costs of remedy implementation; and
(4) The institutional requirements such as State or local permit
requirements or other environmental or public health requirements that
may substantially affect implementation of the remedies.
(d) The person managing CKD waste must discuss the results of the
corrective measures assessment, prior to the selection of remedy, in a
public meeting with interested and affected parties.
Sec. 259.47 Selection of remedy.
(a) Within 90 days of completing an assessment of corrective
measures conducted under Sec. 259.46, the person managing CKD waste
must select a remedy that, at a minimum, meets the standards listed in
paragraph (b) of this section. Within 14 days of selecting a remedy,
the person managing CKD waste must submit to the EPA Regional
Administrator a report describing the selected remedy which
demonstrates how the remedy meets the standards in paragraph (b) of
this section. The report must include a notification that the owner and
operator has placed a copy of the report in the operating record.
(b) Remedies must:
(1) Be protective of human health and the environment;
[[Page 45688]]
(2) Attain the ground-water protection standard as specified
pursuant to Sec. 259.45(h);
(3) Control the source(s) of releases so as to reduce or eliminate,
to the maximum extent practicable, further releases of metal
constituents (as listed in Appendix VIII of Part 261 of this chapter)
into the environment that may pose a threat to human health or the
environment; and
(4) Comply with standards for management of wastes as specified in
Sec. 259.48(d).
(c) In selecting a remedy that meets the standards of paragraph (b)
of this section, the person managing CKD waste shall consider the
following evaluation factors:
(1) The long- and short-term effectiveness and protectiveness of
the potential remedies, along with the degree of certainty that the
remedy will prove successful based on consideration of the following:
(i) Magnitude of reduction of existing risks;
(ii) Magnitude of residual risks in terms of likelihood of further
releases due to waste remaining following implementation of a remedy;
(iii) The type and degree of long-term management required,
including monitoring, operation, and maintenance;
(iv) Short-term risks that might be posed to the community,
workers, or the environment during implementation of such a remedy,
including potential threats to human health and the environment
associated with excavation, transportation, and redisposal of
containment;
(v) Time until full protection is achieved;
(vi) Potential for exposure of humans and environmental receptors
to remaining wastes, considering the potential threat to human health
and the environment associated with excavation, transportation,
redisposal, or containment;
(vii) Long-term reliability of the engineering and institutional
controls; and
(viii) Potential need for replacement of the remedy.
(2) The effectiveness of the remedy in controlling the source to
reduce further releases based on consideration of the following
factors:
(i) The extent to which containment practices will reduce further
releases; and
(ii) The extent to which treatment technologies may be used.
(3) The ease or difficulty of implementing a potential remedy(s)
based on consideration of the following types of factors:
(i) Degree of difficulty associated with constructing the
technology;
(ii) Expected operational reliability of the technologies;
(iii) Need to coordinate with and obtain necessary approvals and
permits from other agencies;
(iv) Availability of necessary equipment and specialists; and
(v) Available capacity and location of needed treatment, storage,
and disposal services.
(4) Practicable capability of the person managing CKD waste,
including a consideration of the technical and economic capability.
(5) The degree to which community concerns are addressed by a
potential remedy(s).
(d) The person managing CKD waste shall specify as part of the
selected remedy a schedule(s) for initiating and completing remedial
activities. Such a schedule must require the initiation of remedial
activities within 90 days taking into consideration the factors set
forth in paragraphs (d) (1) through (8) of this section. The person
managing CKD waste must consider the following factors in determining
the schedule of remedial activities:
(1) Extent and nature of contamination;
(2) Practical capabilities of remedial technologies in achieving
compliance with ground-water protection standards established under
Sec. 259.45 (g) or (h) and other objectives of the remedy;
(3) Availability of treatment or disposal capacity for wastes
managed during implementation of the remedy;
(4) Desirability of utilizing technologies that are not currently
available, but which may offer significant advantages over already
available technologies in terms of effectiveness, reliability, safety,
or ability to achieve remedial objectives;
(5) Potential risks to human health and the environment from
exposure to contamination prior to completion of the remedy;
(6) Resource value of the aquifer including:
(i) Current and future uses;
(ii) Proximity and withdrawal rate of users;
(iii) Ground-water quantity and quality;
(iv) The potential damage to wildlife, crops, vegetation, and
physical structures caused by exposure to waste constituents;
(v) The hydrogeologic characteristics of the facility and
surrounding land;
(vi) Ground-water removal and treatment costs; and
(vii) The cost and availability of alternative water supplies.
(7) Other relevant factors.
(e) The EPA Regional Administrator may determine an alternative
period of time for the person managing CKD waste to initiate or
complete remedial activities pursuant to paragraph (d) of this section.
(f) The EPA Regional Administrator may determine that remediation
of a release of a constituent (as listed in Appendix VIII of Part 261
of this chapter) from a CKDLF unit is not necessary if the person
managing CKD waste demonstrates to the satisfaction of the EPA Regional
Administrator that:
(1) The ground water is additionally contaminated by substances
that have originated from a source other than a CKDLF unit and those
substances are present in concentrations such that cleanup of the
release from the CKDLF unit would provide no significant reduction in
risk to actual or potential receptors; or
(2) The constituent(s) is present in ground water that:
(i) Is not currently or reasonably expected to be a source of
drinking water; and
(ii) Is not hydraulically connected with waters to which the
hazardous constituents are migrating or are likely to migrate in a
concentration(s) that would exceed the ground-water protection
standards established under Sec. 259.45(h); or
(3) Remediation of the release(s) is technically impracticable; or
(4) Remediation results in unacceptable cross-media impacts.
(g) This section shall not affect the authority of the EPA Regional
Administrator to require the person managing CKD waste to undertake
source control measures or other measures that may be necessary to
eliminate or minimize further releases to the ground water, to prevent
exposure to the ground water, or to remediate the ground water to
concentrations that are technically practicable and significantly
reduce threats to human health or the environment.
Sec. 259.48 Implementation of the corrective action program.
(a) Based on the schedule established under Sec. 259.47(d) for
initiation and completion of remedial activities, the owner/operator
must:
(1) Establish and implement a corrective action ground-water
monitoring program that:
(i) At a minimum, meets the requirements of an assessment
monitoring program under Sec. 259.45;
(ii) Indicates the effectiveness of the corrective action remedy;
and
[[Page 45689]]
(iii) Demonstrates compliance with ground-water protection
standards pursuant to paragraph (e) of this section.
(2) Implement the corrective action remedy selected under
Sec. 259.47; and
(3) Take any interim measures necessary to ensure the protection of
human health and the environment. Interim measures should, to the
greatest extent practicable, be consistent with the objectives of and
contribute to the performance of any remedy that may be required
pursuant to Sec. 259.47. The following factors must be considered by a
person managing CKD waste in determining whether interim measures are
necessary:
(i) Time required to develop and implement a final remedy;
(ii) Actual or potential exposure of nearby populations or
environmental receptors to hazardous constituents;
(iii) Actual or potential contamination of drinking water supplies
or sensitive ecosystems;
(iv) Further degradation of the ground water that may occur if
remedial action is not initiated expeditiously;
(v) Weather conditions that may cause hazardous constituents to
migrate or be released;
(vi) Potential for exposure to hazardous constituents as a result
of an accident or failure of a container or handling system; and
(vii) Other situations that may pose threats to human health and
the environment.
(b) A person managing CKD waste may determine, based on information
developed after implementation of the remedy has begun or other
information, that compliance with requirements of Sec. 259.47(b) are
not being achieved through the remedy selected. In such cases, the
person managing CKD waste must implement other methods or techniques
that could practicably achieve compliance with the requirements, unless
the person managing CKD waste makes the determination under paragraph
(c) of this section.
(c) If the person managing CKD waste determines that compliance
with requirements under Sec. 259.47(b) cannot be practically achieved
with any currently available methods, the person managing CKD waste
must:
(1) Obtain certification of a qualified ground-water scientist or
approval by the EPA Regional Administrator that compliance with
requirements under Sec. 259.47(b) cannot be practically achieved with
any currently available methods;
(2) Implement alternate measures to control exposure of humans or
the environment to residual contamination, as necessary to protect
human health and the environment; and
(3) Implement alternate measures for control of the sources of
contamination, or for removal or decontamination of equipment, units,
devices, or structures that are:
(i) Technically practicable; and
(ii) Consistent with the overall objective of the remedy.
(4) Notify the EPA Regional Administrator within 14 days that a
report justifying the alternative measures prior to implementing the
alternative measures has been placed in the operating record.
(d) All solid wastes that are managed pursuant to a remedy required
under Sec. 259.47, or an interim measure required under paragraph
(a)(3) of this section, shall be managed in a manner:
(1) That is protective of human health and the environment; and
(2) That complies with applicable RCRA requirements.
(e) Remedies selected pursuant to Sec. 259.47 shall be considered
complete when:
(1) The person managing CKD waste complies with the ground-water
protection standards established under Secs. 259.45(h) at all points
within the plume of contamination that lie beyond the ground-water
monitoring well (and spring system if appropriate) established under
Sec. 259.41(a).
(2) Compliance with the ground-water protection standards
established under Sec. 259.45(h) has been achieved by demonstrating
that concentrations of metal constituents (as listed in Appendix VIII
of Part 261 of this chapter) have not exceeded the ground-water
protection standards for a period of three consecutive years using the
statistical procedures and performance standards in Sec. 259.43 (g) and
(h). The EPA Regional Administrator may specify an alternative length
of time during which the person managing CKD waste must demonstrate
that concentrations of metal constituents (as listed in Appendix VIII
of Part 261 of this chapter) have not exceeded the ground-water
protection standards taking into consideration:
(i) Extent and concentration of the release;
(ii) Behavior characteristics of the hazardous constituents in the
ground water;
(iii) Accuracy of monitoring or modeling techniques, including any
seasonal, meteorological, or other environmental variabilities that may
affect the accuracy; and
(iv) Characteristics of the ground water.
(3) All actions required to complete the remedy have been
satisfied.
(f) Upon completion of the remedy, the person managing CKD waste
must notify the EPA Regional Administrator within 14 days that a
certification that the remedy has been completed in compliance with the
requirements of paragraph (e) of this section has been placed in the
operating record. The certification must be signed by the person
managing CKD waste and by a qualified ground-water scientist or
approved by the EPA Regional Administrator.
(g) When, upon completion of the certification, the person managing
CKD waste determines that the corrective action remedy has been
completed in accordance with the requirements under paragraph (e) of
this section, the person managing CKD waste shall be released from the
requirements for financial assurance for corrective action under
Sec. 259.63.
Sec. 259.49 [Reserved]
Subpart F--Closure And Post-Closure Care
Sec. 259.50 Closure criteria.
(a) A final cover system must be installed at all CKDLF units that
is designed to minimize infiltration and erosion. The final cover
system must be designed and constructed to:
(1) Have a saturated hydraulic conductivity less than or equal to
the saturated hydraulic conductivity of any bottom liner system or
natural subsoils present, or a saturated hydraulic conductivity no
greater than 1x10-5 cm/sec, whichever is less, and
(2) Minimize infiltration through the closed CKDLF by the use of an
infiltration layer that contains a minimum 18-inches of earthen
material, and
(3) Minimize erosion of the final cover by the use of an erosion
layer that contains a sufficient thickness of earthen material that is
capable of sustaining native plant growth, and
(4) Minimize the disruption of the final cover through a design
that accommodates settling and subsidence.
(b) The EPA Regional Administrator may approve an alternative final
cover design that includes:
(1) An infiltration layer that achieves an equivalent reduction in
infiltration as the infiltration layer specified in paragraphs (a)(1)
and (a)(2) of this section, and
(2) An erosion layer that provides equivalent protection from wind
and water erosion as the erosion layer specified in paragraph (a)(3) of
this section.
[[Page 45690]]
(c) The person managing CKD waste must prepare a written closure
plan that describes the steps necessary to close all CKDLF units at any
point during their active life in accordance with the cover design
requirements in paragraphs (a) or (b) of this section, as applicable.
The closure plan, at a minimum, must include the following information:
(1) A description of the final cover, designed in accordance with
paragraph (a) of this section and the methods and procedures to be used
to install the cover;
(2) An estimate of the largest area of the CKDLF unit ever
requiring a final cover as required under paragraph (a) of this section
at any time during the active life;
(3) An estimate of the maximum inventory of wastes ever on-site
over the active life of the landfill facility; and
(4) A schedule for completing all activities necessary to satisfy
the closure criteria in this section.
(d) The person managing CKD waste must notify the EPA Regional
Administrator that a closure plan has been prepared and placed in the
operating record no later than the effective date of this rule, or by
the date of initial receipt of waste, whichever is later.
(e) Prior to beginning closure of each CKDLF unit as specified in
paragraph (f) of this section, the person managing CKD waste must
notify the EPA Regional Administrator that a notice of the intent to
close the unit has been placed in the operating record.
(f) The closure activities of each CKDLF unit must begin no later
than 30 days after the date on which the CKDLF unit receives the known
final receipt of wastes or, if the CKDLF unit has remaining capacity
and there is a reasonable likelihood that the CKDLF unit will receive
additional wastes, no later than one year after the most recent receipt
of wastes. Extensions beyond the one-year deadline for beginning
closure may be granted by the EPA Regional Administrator if the person
managing CKD waste demonstrates that the CKDLF unit has the capacity to
receive additional wastes and the person managing CKD waste has taken
and will continue to take all steps necessary to prevent threats to
human health and the environmental from the unclosed CKDLF unit.
(g) The closure activities of all CKDLF units must be completed in
accordance with the closure plan within 180 days following the
beginning of closure as specified in paragraph (f) of this Section.
Extensions of the closure period may be granted by the EPA Regional
Administrator if the person managing CKD waste demonstrates that
closure will, of necessity, take longer than 180 days and he or she has
taken and will continue to take all steps to prevent threats to human
health and the environment from the unclosed CKDLF unit.
(h) Within 14 days following closure of each CKDLF unit, the person
managing CKD waste must notify the EPA Regional Administrator that a
certification, signed by an independent registered professional
engineer, facility management, or approved by the EPA Regional
Administrator, verifying that closure has been completed in accordance
with the closure plan, has been placed in the operating record.
(i)(1) Within 14 days following closure of all CKDLF units, the
person managing CKD waste must record a notation on the deed to the
landfill facility property, or some other instrument that is normally
examined during title search, and notify the EPA Regional Administrator
that the notation has been recorded and a copy has been placed in the
operating record.
(2) The notation on the deed must in perpetuity notify any
potential purchaser of the property that the land has been used for
disposal of CKD waste.
(j) The person managing CKD waste may request permission from the
EPA Regional Administrator to remove the notation from the deed if all
CKD waste has been removed from the facility.
Sec. 259.51 Post-closure care requirements.
(a) Following closure of each CKDLF unit, the person managing CKD
waste must conduct post-closure care. Post-closure care must be
conducted for 30 years, except as provided under paragraph (b) of this
Section, and consist of at least the following:
(1) Maintaining the integrity and effectiveness of any final cover,
including making repairs to the cover as necessary to correct the
effects of settlement, subsidence, erosion, or other events, and
preventing run-on and run-off from eroding or otherwise damaging the
final cover;
(2) Maintaining and operating the leachate collection system in
accordance with the requirements in Sec. 259.30, if applicable. The EPA
Regional Administrator may allow the person managing CKD waste to stop
managing leachate if the person managing CKD waste demonstrates that
leachate no longer poses a threat to human health and the environment;
and
(3) Monitoring the ground water in accordance with the requirements
of Subpart E of this part and maintaining the ground-water monitoring
system, if applicable.
(b) The length of the post-closure care period may be:
(1) Decreased by the EPA Regional Administrator if the person
managing CKD waste demonstrates that the reduced period is sufficient
to protect human health and the environment and this demonstration is
approved by the EPA Regional Administrator; or
(2) Increased by the EPA Regional Administrator if the EPA Regional
Administrator determines that the lengthened period is necessary to
protect human health and the environment.
(c) For all CKDLF units the person managing CKD waste must prepare
a written post-closure care plan that includes, at a minimum, the
following information:
(1) A description of the monitoring and maintenance activities
required in paragraph (a) of this Section for each CKDLF unit, and the
frequency at which these activities will be performed;
(2) Name, address, and telephone number of the person or office to
contact about the facility during the post-closure period; and
(3) A description of the planned uses of the property during the
post-closure period. Post-closure use of the property shall not disturb
the integrity of the final cover, liner(s), or any other components of
the containment system, or the function of the monitoring systems
unless necessary to comply with the requirements in this part. The EPA
Regional Administrator may approve any other disturbance if the person
managing CKD waste demonstrates that disturbance of the final cover,
liner or other component of the containment system, including any
removal of waste, will not increase the potential threat to human
health or the environment.
(d) The person managing CKD waste must notify the EPA Regional
Administrator that a post-closure care plan has been prepared and
placed in the operating record no later than the effective date of this
rule, or by the date of initial receipt of waste, whichever is later.
(e) Within 14 days following completion of the post-closure care
period for each CKDLF unit, the person managing CKD waste must notify
the EPA Regional Administrator that a certification, signed by an
independent, registered professional engineer or approved by the EPA
Regional Administrator, verifying that post-closure care has been
completed in accordance with the post-closure plan, has been placed in
the operating record.
[[Page 45691]]
Secs. 259.52-259.59 [Reserved]
Subpart G--Financial Assurance Criteria
Sec. 259.60 Applicability.
(a) The requirements of this section apply to owners and operators
of all CKDLF units, except owners or operators who are State or Federal
Government entities whose debts and liabilities are the debts and
liabilities of a State or the United States.
(b) In this part, Owner means the person(s) who owns a CKDLF unit
or part of a CKDLF unit.
Operator means the person(s) responsible for the overall operation
of a CKDLF unit or part of a CKDLF unit.
Sec. 259.61 Financial assurance for closure.
(a) The owner or operator must have a detailed written estimate, in
current dollars, of the cost of hiring a third party to close the
largest area of all CKDLF units ever requiring a final cover as
required under Sec. 259.50 at any time during the active life in
accordance with the closure plan. The owner or operator must notify the
EPA Regional Administrator that the estimate has been placed in the
operating record.
(1) The cost estimate must equal the cost of closing the largest
area of all CKDLF unit ever requiring a final cover at any time during
the active life when the extent and manner of its operation would make
closure the most expensive, as indicated by its closure plan (see
Sec. 259.50(c)(2)).
(2) During the active life of the CKDLF unit, the owner or operator
must annually adjust the closure cost estimate for inflation.
(3) The owner or operator must increase the closure cost estimate
and the amount of financial assurance provided under paragraph (b) of
this Section if changes to the closure plan or CKDLF unit conditions
increase the maximum cost of closure at any time during the remaining
active life.
(4) The owner or operator may reduce the closure cost estimate and
the amount of financial assurance provided under paragraph (b) of this
Section if the cost estimate exceeds the maximum cost of closure at any
time during the remaining life of the CKDLF unit. Within 14 days of
this finding, the person managing CKD waste must notify the EPA
Regional Administrator that the justification for the reduction of the
closure cost estimate and the amount of financial assurance has been
placed in the operating record.
(b) For each CKDLF unit receiving CKD waste after the effective
date of the rule, the owner or operator must establish financial
assurance for closure in compliance with Sec. 259.64. The owner or
operator must provide continuous coverage for closure until released
from financial assurance requirements by demonstrating compliance with
Sec. 259.50 (h) and (i).
Sec. 259.62 Financial assurance for post-closure care.
(a) The owner or operator must have a detailed written estimate, in
current dollars, of the cost of hiring a third party to conduct post-
closure care for the CKDLF unit in compliance with the post-closure
care plan developed under Sec. 259.51. The post-closure care cost
estimate used to demonstrate financial assurance in paragraph (b) of
this Section must account for the total costs of conducting post-
closure care, including annual and periodic costs as described in the
post-closure care plan over the entire post-closure care period. The
owner or operator must notify the EPA Regional Administrator that the
estimate has been placed in the operating record.
(1) The cost estimate for post-closure care must be based on the
most expensive costs of post-closure care during the entire post-
closure care period.
(2) During the active life of the CKDLF unit and during the post-
closure care period, the owner or operator must annually adjust the
post-closure cost estimate for inflation.
(3) The owner or operator must increase the post-closure care cost
estimate and the amount of financial assurance provided under paragraph
(b) of this section if changes in the post-closure plan or CKDLF unit
conditions increase the maximum costs of post-closure care.
(4) The owner or operator may reduce the post-closure care cost
estimate and the amount of financial assurance provided under paragraph
(b) of this section if the cost estimate exceeds the maximum costs of
post-closure care remaining over the post-closure care period. Within
14 days of this finding, the owner or operator must notify the EPA
Regional Administrator that the justification for the reduction of the
post-closure cost estimate and the amount of financial assurance has
been placed in the operating record.
(b) The owner or operator of each CKDLF unit must establish, in a
manner in accordance with Sec. 259.64, financial assurance for the
costs of post-closure care as required under Sec. 259.51. The owner or
operator must provide continuous coverage for post-closure care until
released from financial assurance requirements for post-closure care by
demonstrating compliance with Sec. 259.51(e).
Sec. 259.63 Financial assurance for corrective action.
(a) An owner or operator in a CKDLF unit required to undertake a
corrective action program under Sec. 259.48 must have a detailed
written estimate, in current dollars, of the cost of hiring a third
party to perform the corrective action in accordance with the program
required under Sec. 259.48. The corrective action cost estimate must
account for the total costs of corrective action activities as
described in the corrective action plan for the entire corrective
action period. Prior to undertaking corrective action under
Sec. 259.48, the owner or operator must notify the EPA Regional
Administrator that the estimate has been placed in the operating
record.
(1) The owner or operator must annually adjust the estimate for
inflation until the corrective action program is completed in
accordance with Sec. 259.48(f).
(2) The owner or operator must increase the corrective action cost
estimate and the amount of financial assurance provided under paragraph
(b) of this section if changes in the corrective action program or
CKDLF unit conditions increase the maximum costs of corrective action.
(3) The owner or operator may reduce the amount of the corrective
action cost estimate and the amount of financial assurance provided
under paragraph (b) of this section if the cost estimate exceeds the
maximum remaining costs of corrective action. Within 14 days of making
an annual adjustment under paragraph (a)(1) of this section, the owner
or operator must notify the EPA Regional Administrator that the
justification for the reduction or increase of the corrective action
cost estimate and the amount of financial assurance has been placed in
the operating record.
(b) An owner or operator in a CKDLF unit, if required to undertake
a corrective action program under Sec. 259.48 must establish financial
assurance using the allowable mechanisms defined under Sec. 259.64. An
owner or operator in a CKDLF unit must establish financial assurance
for all corrective action programs initiated during the active life of
the unit, closure, and post-closure care periods. The owner or operator
must provide continuous coverage for corrective action until released
from financial assurance requirements for corrective action by
demonstrating compliance with Secs. 259.48 (f) and (g).
[[Page 45692]]
Sec. 259.64 Allowable mechanisms.
The mechanisms used to demonstrate financial assurance under this
Section must ensure that the funds necessary to meet the costs of
closure, post-closure care, and corrective action for known releases
will be available whenever they are needed. Persons managing CKD waste
must choose from the options specified in paragraphs (a) through (j) of
this section.
(a) Trust Fund. (1) The owner or operator may satisfy the
requirements of this section by establishing a trust fund which
conforms to the requirements of this paragraph. The trustee must be an
entity which has the authority to act as a trustee and whose trust
operations are regulated and examined by a Federal or State agency. A
copy of the trust agreement must be placed in the facility's operating
record.
(2) Payments into the trust fund must be made annually by the owner
or operator over the term of the initial control mechanism or over the
remaining life of the CKDLF unit, whichever is shorter, in the case of
a trust fund for closure or post-closure care, or over one-half of the
estimated length of the corrective action program in the case of
corrective action for known releases. This period is referred to as the
pay-in period.
(3) For a trust fund used to demonstrate financial assurance for
closure and post-closure care, the first payment into the fund must be
at least equal to the current cost estimate for closure or post-closure
care, except as provided in paragraph (k) of this section, divided by
the number of years in the pay-in period as defined in paragraph (a)(2)
of this section. The amount of subsequent payments must be determined
by the following formula:
Next Payment = [CE-CV]/Y
Where:
CE is the current cost estimate for closure or post-closure care
(updated for inflation or other changes), CV is the current value of
the trust fund, and Y is the number of years remaining in the pay-in
period.
(4) For a trust fund used to demonstrate financial assurance for
corrective action, the first payment into the trust fund must be at
least equal to one-half of the current cost estimate for corrective
action, except as provided in paragraph (k) of this section, divided by
the number of years in the corrective action pay-in period as defined
in paragraph (a)(2) of this Section. The amount of subsequent payments
must be determined by the followingformula:
Next Payment = [RB-CV]/Y
Where:
RB is the most recent estimate of the required trust fund
balance for corrective action (i.e., the total costs that will be
incurred during the second half of the corrective action period), CV
is the current value of the trust fund, and Y is the number of years
remaining in the pay-in period.
(5) The initial payment into the trust fund must be made before the
initial receipt of waste or before two years elapse after the effective
date of this rule, whichever is later; in the case of closure and post-
closure care, or no later than 120 days after the corrective action
remedy has been selected in accordance with the requirements of
Sec. 259.48.
(6) If the owner or operator establishes a trust fund after having
used one or more alternate mechanisms specified in this Section, the
initial payment into the trust fund must be at least the amount that
the fund would contain if the trust fund were established initially and
annual payments made according to the specifications of this paragraph
and paragraph (a) of this section, as applicable.
(7) The owner or operator, or other person authorized to conduct
closure, post-closure care, or corrective action activities may request
reimbursement from the trustee for these expenditures. Requests for
reimbursement will be granted by the trustee only if sufficient funds
are remaining in the trust fund to cover the remaining costs of
closure, post-closure care, or corrective action, and if justification
and documentation of the cost is placed in the operating record. Prior
to reimbursement, the owner or operator must notify the EPA Regional
Administrator that the documentation of the justification for
reimbursement has been placed in the operating record and that
reimbursement has been received.
(8) The trust fund may be terminated by the owner or operator only
if the owner or operator substitutes alternate financial assurance as
specified in this Section or if he is no longer required to demonstrate
financial responsibility in accordance with the requirements of
Sec. 259.61(b), Sec. 259.62(b), or Sec. 259.63(b).
(b) Surety Bond Guaranteeing Payment or Performance. (1) The owner
or operator may demonstrate financial assurance for closure or post-
closure care by obtaining a payment or performance surety bond which
conforms to the requirements of this paragraph. The owner or operator
may demonstrate financial assurance for corrective action by obtaining
a performance bond which conforms to the requirements of this
paragraph. The bond must be effective before the initial receipt of
waste or before two years elapse after [the effective date of this
rule], whichever is later; in the case of closure and post-closure
care, the bond must be effective no later than 120 days after the
corrective action remedy has been selected in accordance with the
requirements of Sec. 259.48. Within 14 days after demonstrating
financial assurance according to this section, the owner or operator
must notify the EPA Regional Administrator that a copy of the bond has
been placed in the operating record. The surety company issuing the
bond must, at a minimum, be among those listed as acceptable sureties
on Federal bonds in Circular 570 of the U.S. Department of the
Treasury.
(2) The penal sum of the bond must be in an amount at least equal
to the current closure, post-closure care or corrective action cost
estimate, whichever is applicable, except as provided in paragraph (k)
of this section.
(3) Under the terms of the bond, the surety will become liable on
the bond obligation when the owner or operator fails to perform as
guaranteed by the bond.
(4) The owner or operator must establish a standby trust fund. The
standby trust fund must meet the requirements of paragraph (a) of this
Section except the requirements for initial payment and subsequent
annual payments specified in paragraphs (a)(2), (3), (4) and (5) of
this section.
(5) Payments made under the terms of the bond will be deposited by
the surety directly into the standby trust fund. Payments from the
trust fund must be approved by the trustee.
(6) Under the terms of the bond, the surety may cancel the bond by
sending notice of cancellation by certified mail to the owner and
operator and to the EPA Regional Administrator 120 days in advance of
cancellation. If the surety cancels the bond, the owner or operator
must obtain alternate financial assurance as specified in this section.
(7) The owner or operator may cancel the bond only if alternate
financial assurance is substituted as specified in this Section or if
the owner or operator is no longer required to demonstrate financial
responsibility in accordance with Sec. 259.61(b), Sec. 259.62(b) or
Sec. 259.63(b).
(c) Letter of Credit. (1) The owner or operator may satisfy the
requirements of this Section by obtaining an irrevocable standby letter
of credit which conforms to the requirements of this paragraph. The
letter of credit must be effective before the initial receipt of waste
or before two years elapse after the effective date of this rule,
whichever is later; in the case of closure and post-
[[Page 45693]]
closure care, the letter of credit must be effective no later than 120
days after the corrective action remedy has been selected in accordance
with the requirements of Sec. 259.48. Within 14 days after obtaining a
letter of credit, the owner or operator must notify the EPA Regional
Administrator that a copy of the letter of credit has been placed in
the operating record. The issuing institution must be an entity which
has the authority to issue letters of credit and whose letter-of-credit
operations are regulated and examined by a Federal or State agency.
(2) A letter from the owner or operator referring to the letter of
credit by number, issuing institution, and date, and providing the
following information: Name, and address of the facility, and the
amount of funds assured, must be included with the letter of credit in
the operating record.
(3) The letter of credit must be irrevocable and issued for a
period of at least one year in an amount at least equal to the current
cost estimate for closure, post-closure care or corrective action,
whichever is applicable, except as provided in paragraph (k) of this
Section. The letter of credit must provide that the expiration date
will be automatically extended for a period of at least one year unless
the issuing institution has canceled the letter of credit by sending
notice of cancellation by certified mail to the owner and operator and
to the EPA Regional Administrator 120 days in advance of cancellation.
If the letter of credit is canceled by the issuing institution, the
owner or operator must obtain alternate financial assurance.
(4) The owner or operator may cancel the letter of credit only if
alternate financial assurance is substituted as specified in this
Section or if the owner or operator is released from the requirements
of this Section in accordance with Sec. 259.61(b), Sec. 259.62(b) or
Sec. 259.63(b).
(d) Insurance. (1) The owner or operator may demonstrate financial
assurance for closure and post-closure care by obtaining insurance
which conforms to the requirements of this paragraph. The insurance
must be effective before the initial receipt of waste or before two
years elapse after the effective date of the requirements of this rule,
whichever is later; in the case of closure and post-closure care, the
insurance must be effective no later than 120 days after the corrective
action remedy has been selected in accordance with the requirements of
Sec. 259.48. At a minimum, the insurer must be licensed to transact the
business of insurance, or eligible to provide insurance as an excess or
surplus lines insurer, in one or more States. Within 14 days after
obtaining insurance, the owner or operator must notify the EPA Regional
Administrator that a copy of the insurance policy has been placed in
the operating record.
(2) The closure or post-closure care insurance policy must
guarantee that funds will be available to close the CKDLF unit whenever
final closure occurs and/or to provide post-closure care for the CKDLF
unit whenever the post-closure care period begins, whichever is
applicable. The policy must also guarantee that once closure or post-
closure care begins, the insurer will be responsible for the paying out
of funds to the owner or operator or other person authorized to conduct
closure or post-closure care, up to an amount equal to the face amount
of the policy.
(3) The insurance policy must be issued for a face amount at least
equal to the current cost estimate for closure or post-closure care,
whichever is applicable. The term face amount means the total amount
the insurer is obligated to pay under the policy. Actual payments by
the insurer will not change the face amount, although the insurer's
future liability will be lowered by the amount of the payments.
(4) A owner or operator, or any other person authorized to conduct
closure or post-closure care, may receive reimbursements for closure or
post-closure expenditures, whichever is applicable. Requests for
reimbursement will be granted by the insurer only if the remaining
value of the policy is sufficient to cover the remaining costs of
closure or post-closure care, and if justification and documentation of
the cost is placed in the operating record. Within 14 days after
reimbursement, the owner or operator must notify the EPA Regional
Administrator that the documentation of the justification for
reimbursement has been placed in the operating record and that
reimbursement has been received.
(5) Each policy must contain a provision allowing assignment of the
policy to a successor owner or operator. Such assignment may be
conditional upon consent of the insurer, provided that such consent is
not unreasonably refused.
(6) The insurance policy must provide that the insurer may not
cancel, terminate or fail to renew the policy except for failure of
payment of premium. The automatic renewal of the policy must, at a
minimum, provide the insured with the option of renewal at the face
amount of the expiring policy. If there is a failure to pay the
premium, the insurer may cancel the policy by sending notice of
cancellation by certified mail to the owner and operator and to the EPA
Regional Administrator 120 days in advance of cancellation. If the
insurer cancels the policy, the owner or operator must obtain alternate
financial assurance as specified in this section.
(7) For insurance policies providing coverage for post-closure
care, commencing on the date that liability to make payments pursuant
to the policy accrues, the insurer will thereafter annually increase
the face amount of the policy. Such increase must be equivalent to the
face amount of the policy, less any payments made, multiplied by an
amount equivalent to 85 percent of the most recent investment rate or
of the equivalent coupon-issue yield announced by the U.S. Treasury for
26-week Treasury securities.
(8) The owner or operator may cancel the insurance policy only if
alternate financial assurance is substituted as specified in this
Section or if the owner or operator is no longer required to
demonstrate financial responsibility in accordance with the
requirements of Sec. 259.61(b), Sec. 259.62(b) or Sec. 259.63(b).
(e) Corporate Financial Test. The owner or operator that satisfies
the requirements of this paragraph may demonstrate financial assurance
up to the amount specified herein:
(1) Financial Component.
(i) The owner or operator must satisfy one of the following three
conditions:
(A) A current rating for its senior unsecured debt of AAA, AA, A,
or BBB as issued by Standard and Poor's or Aaa, Aa, A or Baa as issued
by Moody's; or
(B) A ratio of less than 1.5 comparing total liabilities to net
worth; or
(C) A ratio of greater than 0.10 comparing the sum of net income
plus depreciation, depletion and amortization, minus $10 million, to
total liabilities.
(ii) The tangible net worth of the owner or operator must be
greater than:
(A) The sum of the current closure, post-closure care, corrective
action cost estimates and any other environmental obligations,
including guarantees, covered by a financial test plus $10 million
except as provided in paragraph (e)(1)(ii)(B) of this section.
(B) $10 million in net worth plus the amount of any guarantees that
have not been recognized as liabilities on the financial statements,
provided all of the current closure, post-closure care, and corrective
action costs and any other environmental obligations covered by a
financial test are recognized as liabilities on the owner's or
operator's audited financial statements, and
[[Page 45694]]
subject to the approval of the EPA Regional Administrator.
(iii) The owner or operator must have assets located in the United
States amounting to at least the sum of current closure, post-closure
care, corrective action cost estimates and any other environmental
obligations covered by a financial test as described in paragraph
(e)(3) of this Section.
(2) Recordkeeping and reporting requirements.
(i) As they become available, the owner or operator must place the
following items into the facility's operating record:
(A) A letter signed by the owner's or operator's chief financial
officer that:
(1) Lists all the current cost estimates covered by a financial
test, including, but not limited to, cost estimates required for
municipal solid waste management facilities under 40 CFR Part 258, cost
estimates required for UIC facilities under 40 CFR Part 144, if
applicable, cost estimates required for petroleum underground storage
tank facilities under 40 CFR Part 280, if applicable, cost estimates
required for PCB storage facilities under 40 CFR Part 261, if
applicable, and cost estimates required for hazardous waste treatment,
storage, and disposal facilities under 40 CFR Parts 264 and 265, if
applicable; and
(2) Provides evidence demonstrating that the firm meets the
conditions of either paragraph (e)(1)(i)(A) or (e)(1)(i)(B) or
(e)(1)(i)(C) and paragraphs (e)(1)(ii) and (e)(1)(iii) of this Section.
(B) A copy of the independent certified public accountant's
unqualified opinion of the owner's or operator's financial statements
for the latest completed fiscal year. To be eligible to use the
financial test, the owner's or operator's financial statements must
receive an unqualified opinion from the independent certified public
accountant. An adverse opinion, disclaimer of opinion, or other
qualified opinion will be cause for disallowance, with the potential
exception for qualified opinions provided in the next sentence. The EPA
Regional Administrator may evaluate qualified opinions on a case-by-
case basis and allow use of the financial test in cases where the EPA
Regional Administrator deems that the matters which form the basis for
the qualification are insufficient to warrant disallowance of the test.
If the EPA Regional Administrator does not allow use of the test, the
owner or operator must provide alternate financial assurance that meets
the requirements of this Section.
(C) If the chief financial officer's letter providing evidence of
financial assurance includes financial data showing that owner or
operator satisfies paragraphs (e)(1)(i)(B) or (e)(1)(i)(C) of this
section that are different from data in the audited financial
statements referred to in paragraph (e)(2)(i)(B) of this Section or any
other audited financial statement or data filed with the Securities and
Exchange Commission (SEC) then a special report from the owner's or
operator's independent certified public accountant to the owner or
operator is required. The special report shall be based upon an agreed
upon procedures engagement in accordance with professional auditing
standards and shall describe the procedures performed in comparing the
data in the chief financial officer's letter derived from the
independently audited, year-end financial statements for the latest
fiscal year with the amounts in such financial statements, the findings
of that comparison, and the reasons for any differences.
(D) If the chief financial officer's letter provides a
demonstration that the firm has assured for environmental obligations
as provided in paragraph (e)(1)(ii)(B) of this section, then the letter
shall include a report from the independent certified public accountant
that verifies that all of the environmental obligations covered by a
financial test have been recognized as liabilities on the audited
financial statements, how these obligations have been measured and
reported, and that the tangible net worth of the firm is at least $10
million plus the amount of any guarantees provided.
(ii) The owner or operator must place the items specified in
paragraph (e)(2)(i) of this section in the operating record and notify
the EPA Regional Administrator that these items have been placed in the
operating record before the initial receipt of waste or before two
years elapse after the effective date of this rule, whichever is later;
in the case of closure, and post-closure care, items specified in
paragraph (e)(2)(i) of this section must have been placed in the
operating record no later than 120 days after the corrective action
remedy has been selected in accordance with the requirements of
Sec. 259.48.
(iii) After the initial placement of items specified in paragraph
(e)(2)(i) of this section in the operating record, the owner or
operator must annually update the information and place updated
information in the operating record within 90 days following the close
of the owner or operator's fiscal year. The EPA Regional Administrator
may provide up to an additional 45 days for a owner or operator who can
demonstrate that 90 days is insufficient time to acquire audited
financial statements. The updated information must consist of all items
specified in paragraph (e)(2)(i) of this section.
(iv) The owner or operator is no longer required to submit the
items specified in paragraph (e)(2) of this section or comply with the
requirements of this paragraph when:
(A) The person substitutes alternate financial assurance as
specified in this section that is not subject to these recordkeeping
and reporting requirements; or
(B) The person is released from the requirements of this section in
accordance with Sec. 259.61(b), Sec. 259.62(b), or Sec. 259.63(b).
(v) If the owner or operator no longer meets the requirements of
paragraph (e)(1) of this section, the owner or operator must, within
120 days following the close of the owner or operator's fiscal year,
obtain alternative financial assurance that meets the requirements of
this section, place the required submissions for that assurance in the
operating record, and notify the EPA Regional Administrator that the
owner or operator no longer meets the criteria of the financial test
and that alternate assurance has been obtained.
(vi) The EPA Regional Administrator may, based on a reasonable
belief that the owner or operator may no longer meet the requirements
of paragraph (e)(1) of this section, require at any time the owner or
operator to provide reports of its financial condition in addition to
or including current financial test documentation as specified in
paragraph (e)(2) of this section. If the EPA Regional Administrator
finds that the owner or operator no longer meets the requirements of
paragraph (e)(1) of this section, within 120 days of this finding the
owner or operator must provide alternate financial assurance that meets
the requirements of this section.
(3) Calculation of costs to be assured. When calculating the
current cost estimates for closure, post-closure care, corrective
action, or the sum of the combination of such costs to be covered, and
any other environmental obligations assured by a financial test
referred to in paragraph (e) of this section, the owner or operator
must include cost estimates required for cement kiln dust solid waste
management facilities under this part, as well as cost estimates
required for the following environmental obligations, if the person
assures them through a financial test: obligations associated with UIC
facilities under 40 CFR Part 144, petroleum underground storage tank
facilities under 40 CFR Part
[[Page 45695]]
280, PCB storage facilities under 40 CFR Part 261, and hazardous waste
treatment, storage, and disposal facilities under 40 CFR Parts 264 and
265.
(f) Corporate Guarantee. (1) The owner or operator may meet the
requirements of this section by obtaining a written guarantee. The
guarantor must be the direct or higher-tier parent corporation of the
owner or operator, a firm whose parent corporation is also the parent
corporation of the owner or operator, or a firm with a ``substantial
business relationship'' with the owner or operator. The guarantor must
meet the requirements for owners or operators in paragraph (e) of this
section and must comply with the terms of the guarantee. A certified
copy of the guarantee must be placed in the facility's operating record
along with copies of the letter from the guarantor's chief financial
officer and accountants' opinions. If the guarantor's parent
corporation is also the parent corporation of the owner or operator,
the letter from the guarantor's chief financial officer must describe
the value received in consideration of the guarantee. If the guarantor
is a firm with a ``substantial business relationship'' with the owner
or operator, this letter must describe this ``substantial business
relationship'' and the value received in consideration of the
guarantee.
(2) The guarantee must be effective and all required submissions
placed in the operating record before the initial receipt of waste or
before the effective date of the requirements of this section,
whichever is later, in the case of closure and post-closure care, or in
the case of corrective action no later than 120 days after the
corrective action remedy has been selected in accordance with the
requirements of Sec. 259.48.
(3) The terms of the guarantee must provide that:
(i) If the owner or operator fails to perform closure, post-closure
care, and/or corrective action of a facility covered by the guarantee,
the guarantor will:
(A) Perform, or pay a third party to perform, closure, post-closure
care, and/or corrective action as required (performance guarantee); or
(B) Establish a fully funded trust fund as specified in paragraph
(a) of this section in the name of the owner or operator (payment
guarantee).
(ii) The guarantee will remain in force for as long as the owner or
operator must comply with the applicable financial assurance
requirements of this Subpart unless the guarantor sends prior notice of
cancellation by certified mail to the owner or operator and to the EPA
Regional Administrator. Cancellation may not occur, however, during the
120 days beginning on the date of receipt of the notice of cancellation
by both the owner or operator and the EPA Regional Administrator, as
evidenced by the return receipts.
(iii) If notice of cancellation is given, the owner or operator
must, within 90 days following receipt of the cancellation notice by
the owner or operator and the EPA Regional Administrator, obtain
alternate financial assurance, place evidence of that alternate
financial assurance in the facility operating record, and notify the
EPA Regional Administrator. If the owner or operator fails to provide
alternate financial assurance within the 90-day period, the guarantor
must provide that alternate assurance within 120 days of the
cancellation notice, obtain alternative assurance, place evidence of
the alternate assurance in the facility operating record, and notify
the EPA Regional Administrator.
(4) If a corporate guarantor no longer meets the requirements of
paragraph (e)(1) of this section, the owner or operator must, within 90
days, obtain alternative assurance, place evidence of the alternate
assurance in the facility operating record, and notify the EPA Regional
Administrator. If the owner or operator fails to provide alternate
financial assurance within the 90-day period, the guarantor must
provide that alternate assurance within the next 30 days.
(5) The owner or operator is no longer required to meet the
requirements of paragraph (g) of this section when:
(i) The owner or operator substitutes alternate financial assurance
as specified in this section; or
(ii) The owner or operator is released from the requirements of
this section in accordance with Sec. 259.61(b), Sec. 259.62(b), or
Sec. 259.63(b).
(g) State-Approved Mechanism. In an authorized State, the owner or
operator may satisfy the requirements of this section by obtaining any
other mechanism that meets the criteria specified in paragraph (j)(1)
Of this section, and that is approved by the State Director.
(h) State Assumption of Responsibility. If the State Director
either assumes legal responsibility for the person's compliance with
the closure, post-closure care and/or corrective action requirements of
this part, or assures that the funds will be available from State
sources to cover the requirements, the owner or operator will be in
compliance with the requirements of this section. Any State assumption
of responsibility must meet the criteria specified in paragraph (j)(1)
of this section.
(i) Use of multiple mechanisms. The owner or operator may
demonstrate financial assurance for closure, post-closure, and
corrective action, as required by Sec. 259.61, Sec. 259.62, and
Sec. 259.63 by establishing more than one mechanism per facility,
except that mechanisms guaranteeing performance rather than payment,
may not be combined with other instruments. The mechanisms must be as
specified in paragraphs (a), (b), (c), (d), (e), (f), (g), (h), and (i)
of this section, except that financial assurance for an amount at least
equal to the current cost estimate for closure, post-closure care, and/
or corrective action may be provided by a combination of mechanisms
rather than a single mechanism.
(j) The language of the mechanisms listed in paragraphs (a), (b),
(c), (d), (e), (f), (g), (h), and (i) of this section must ensure that
the instruments satisfy the following criteria:
(1) The financial assurance mechanisms must ensure that the amount
of funds assured is sufficient to cover the costs of closure, post-
closure care, and corrective action for known releases when needed;
(2) The financial assurance mechanisms must ensure that funds will
be available in a timely fashion when needed;
(3) The financial assurance mechanisms must be obtained by the
owner or operator by the effective date of these requirements or prior
to the initial receipt of solid waste, whichever is later, in the case
of closure and post-closure care, and no later than 120 days after the
corrective action remedy has been selected in accordance with the
requirements of Sec. 259.48, until the owner or operator is released
from the financial assurance requirements under Secs. 259.61, 259.62
and 259.63.
(4) The financial assurance mechanisms must be legally valid,
binding, and enforceable under State and Federal law.
Sec. 259.65 Discounting.
The EPA Regional Administrator may allow discounting of closure
cost estimates in Sec. 259.61(a), post-closure cost estimates in
Sec. 259.62(a), and/or corrective action costs in Sec. 259.63(a) up to
the rate of return for essentially risk free investments, net of
inflation, under the following conditions:
(a) The EPA Regional Administrator determines that cost estimates
are complete and accurate and the owner or operator has submitted a
statement from a Registered Professional Engineer so stating;
[[Page 45696]]
(b) The EPA Regional Administrator finds the facility in compliance
with applicable and appropriate permit conditions;
(c) The EPA Regional Administrator determines that the closure date
is certain and the owner or operator certifies that there are no
foreseeable factors that will change the estimate of site life; and
(d) Discounted cost estimates must be adjusted annually to reflect
inflation and years of remaining life.
Appendix I to Part 259--Constituents for Detection Monitoring
------------------------------------------------------------------------
Common name \1\
-------------------------------------------------------------------------
pH
Conductivity
Total Dissolved Solids
Potassium
Chloride
Sodium
Sulfate
------------------------------------------------------------------------
\1\ Common names are those used widely in government regulations,
scientific publications, and commerce; synonyms exist for many
chemicals.
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
1. The authority citation for Part 261 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and
6938.
2. Section 261.4 is amended by revising paragraph (b)(8) to read as
follows:
Sec. 261.4 Exclusions.
* * * * *
(b) * * *
(8)(i) Except as provided in Sec. 266.112 of this chapter for
facilities that burn or process hazardous waste, CKD waste, so long as
it is managed in accordance with Part 259 of this chapter.
(ii) CKD waste is not managed in accordance with Part 259 of this
chapter when a facility:
(A) Fails to comply with:
(1) air requirements for landfills, as specified Sec. 259.22 of
this chapter, by 90 days after the effective date of the final rule,
unless granted approval by the EPA Regional Administrator (or the
State, in authorized States) under Sec. 259.22(d) of this chapter to
implement alternative measures for fugitive dust control;
(2) the containment standards, as specified under Sec. 259.20 of
this chapter, for CKD destined for sale or beneficial use within two
years after the effective date of the final rule, unless granted
approval by the EPA Regional Administrator under Sec. 259.20(c) of this
chapter to implement alternative measures for fugitive dust control;
(3) design requirements for CKD landfills, as specified under
Sec. 259.30(c) of this chapter by two years after the effective date of
the final rule, unless granted approval by the EPA Regional
Administrator under the provisions of Sec. 259.30(h) of this chapter
for a unit design, or a finding is made of no potential for migration
under Sec. 259.40(b) of this chapter;
(4) ground-water monitoring systems requirements, as specified
under Sec. 259.41 of this chapter, by two years after the effective
date of the final rule, unless granted approval by the EPA Regional
Administrator under the provisions of Sec. 259.30(h) of this chapter
for a unit design, or a finding is made of no potential for migration
under Sec. 259.40(b) of this chapter;
(5) the time frames for appropriate corrective action proposed
today under Secs. 259.41, 259.44, 259.45, 259.46, and 259.47 of this
chapter;
(6) any applicable demonstration requirements for new CKD landfills
as specified under Secs. 259.11(a), 259.12(a), 259.13(a), 259.14(a),
259.15(a) and 259.16(a) of this chapter;
(7) any requirement identified in a notice received from the
Regional Administrator because of repeated violations the requirements
of Part 259 of this chapter, other than those specified in paragraphs
(b)(8)(ii)(A)(1) through (b)(8)(ii)(A)(6) of this section; or,
(B) Fails to comply with any section of Part 259 of this chapter,
other than those specified in paragraphs (b)(8)(ii)(A) of this section,
within 30 days of receiving a written notice of non-compliance with any
of those sections from the Regional Administrator
(iii) Clinker manufactured with CKD waste that has been listed in
Subpart D of this part and has been reintroduced to the cement
manufacturing process.
* * * * *
PART 266--STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS WASTES
AND SPECIFIC TYPES OF HAZARDOUS WASTE MANAGEMENT FACILITIES
1. The authority citation for Part 266 continues to read as
follows:
Authority: 42 USC 1006, 2002(a), 3004, 3014, 6905, 6906, 6912,
6922, 6924, 6925, and 6937.
2. Subpart I is added to Part 266 to read as follows:
Subpart I--Management Standards For Hazardous Cement Kiln Dust
Waste
Sec.
266.120 Applicability and requirements.
266.121 Removal of the hazardous waste designation.
Sec. 266.120 Applicability and requirements.
(a) The purpose of this part is to establish national criteria
under the Resource Conservation and Recovery Act (RCRA or the Act), as
amended, for cement kiln dust waste that is not characteristically
hazardous waste under the provisions of 40 CFR 266.112 and is not
managed in accordance with the provisions of Part 259 of this chapter.
(b) Persons who generate, transport or store CKD that is regulated
under this Subpart are subject to the requirements in paragraphs (b)(1)
through (7) of this section. These requirements operate in lieu of
requirements in 40 CFR Parts 262-265, and 40 CFR Part 268 except where
portions of those Parts are specifically cross-referenced.
(1) All applicable provisions of Part 262 (Standards Applicable to
Generators of Hazardous Waste) of this chapter;
(2) Sections 264.4 and 265.4 of Subpart A (Imminent hazard action)
of this chapter;
(3) Sections 264.11 and 265.11 (Identification number), 264.12 and
265.12 (Required notices), 264.14 and 265.14 (Security), 264.15 and
265.15 (General inspection requirements), 264.16 and 265.16 (Personnel
training), and 264.19 and 265.19 (Construction quality assurance
program) of Subpart B (General Facility Standards) of this chapter.
(4) Subparts C, D, and E of both Parts 264 and 265 (Preparedness
and Prevention, Contingency Plan and Emergency Procedures, and Manifest
System, Recordkeeping, and Reporting) of this chapter;
(5) All provisions of 40 CFR Part 259 of this chapter.
Sec. 266.121 Removal of the hazardous waste designation.
(a) If any CKD waste loses the exemption under Sec. 261.4(b)(8) of
this chapter and becomes subject to Sec. 266.120, the owner or operator
of the facility managing such waste may apply to the Regional
Administrator for removal of the hazardous designation for such CKD
waste. The application must include:
(1) A statement that the CKD waste is now being managed in
accordance with Part 259;
(2) A statement explaining the circumstances of the non-compliance;
and,
[[Page 45697]]
(3) A demonstration that the non-compliance is not likely to recur.
(b) The Regional Administrator may remove the hazardous waste
designation by reinstating the exclusion, as listed under
Sec. 261.4(b)(8) of this chapter, if the Regional Administrator finds
that the owner or operator of the facility has satisfactorily explained
the circumstances of the non-compliance, has demonstrated that the non-
compliance is not likely to recur and that removal of the hazardous
waste designation will not pose a threat to human health or the
environment. The Regional Administrator may remove the hazardous waste
designation by reinstating the exclusion (as listed under
Sec. 261.4(b)(8) of this chapter) with additional conditions if the
Regional Administrator finds that such additional conditions are
necessary to ensure protection of human health and the environment.
(c) The Regional Administrator should take action on an application
for removal of a hazardous waste designation within 60 days after
receipt of the application. If the Regional Administrator does not take
action on the application within that time period, then the application
for removal of the hazardous waste designation (i.e., reinstatement of
the exclusion under Sec. 261.4(b)(8) of this chapter) is deemed
granted, retroactive to the date of the application. However, the
Regional Administrator may terminate a removal (i.e., reinstatement of
the exclusion under Sec. 261.4(b)(8) of this chapter) by default under
this subsection if the Regional Administrator finds that the removal of
the hazardous waste designation is not appropriate based on the factors
specified in paragraph (b) of this Section.
PART 270--EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE
PERMIT PROGRAM
1. The authority citation for Part 270 continues to read as
follows:
Authority: 42 USC 6905, 6912, 6924, 6925, 6927, 6939, and 6974.
2. Section 270.10 is amended by adding a sentence to the end of
paragraph (a) to read as follows:
Subpart B--Permit Application
Sec. 270.10 General application Requirements.
(a) Permit application. * * * Procedures for application, issuance
and administration of permits for cement kiln facilities that do not
comply with the provisions of Part 259 are found exclusively in 40 CFR
270.69.
* * * * *
Subpart F--Special Forms of Permits
2. Subpart F is amended to add a new Sec. 270.69 to read as
follows:
Sec. 270.69 Permits for the Management of Cement Kiln Dust
(a) The EPA Regional Administrator may issue a permit for continued
operation of cement manufacturing facilities that do not comply with
the provisions of 40 CFR Part 259. Any such permit shall contain such
terms and conditions as will assure protection of human health and the
environment. Such permits:
(1) Shall provide for the operation of the facility in accordance
40 CFR Part 259, and
(2) May include such additional requirements as the EPA Regional
Administrator deems necessary to protect human health and the
environment, including, but not limited to requirements regarding
monitoring, operation, financial responsibility, closure and remedial
action.
(b) In issuing such permits, the EPA Regional Administrator may
modify or waive permit application and permit issuance requirements in
40 CFR Parts 124 and 270, except procedures regarding public
participation, provided the modifications or waivers protect human
health and the environment.
[FR Doc. 99-20546 Filed 8-19-99; 8:45 am]
BILLING CODE 6560-50-P
