45632 Federal Register /Vol. 64, No. 161/Friday, August 20 ...€¦ · 45632 Federal Register/Vol. 64, No. 161/Friday, August 20, 1999/Proposed Rules ENVIRONMENTAL PROTECTION AGENCY

45632 Federal Register / Vol. 64, No. 161 / Friday, August 20, 1999 / Proposed Rules

ENVIRONMENTAL PROTECTIONAGENCY

40 CFR Parts 259, 261, 266, and 270

[FRL–6413–5 RIN 2050–AE34]

Standards for the Management ofCement Kiln Dust

AGENCY: Environmental ProtectionAgency.ACTION: Proposed rule.

SUMMARY: The Environmental ProtectionAgency (‘‘we’’ or EPA) is todayproposing a creative, affordable, andcommon sense approach for themanagement of cement kiln dust (CKD)waste under the Resource Conservationand Recovery Act (RCRA). CKD wouldremain a non-hazardous waste providedthe following management standards aremet. First, for ground-water protection,the Agency is proposing managementstandards which require a landfill to bedesigned to control releases of toxicmetals to ground water at the point ofcompliance. Second, to control releasesof fugitive dust, the proposedmanagement standards would requirepersons managing CKD waste to coveror otherwise manage the landfill, CKDhandling areas, and CKD storage areas tocontrol wind dispersal of fugitive CKD.Finally, this rule also proposesconcentration limitations on variouspollutants in CKD used for agriculturalpurposes. This rule also proposes RCRASubtitle C regulatory standards for CKDthat is not managed according to themanagement standards described above.DATES: EPA will accept public commenton this proposed rule until November18, 1999.ADDRESSES: Commenters must send anoriginal and two copies of theircomments referencing docket numberF–99–CKDP–FFFFF to: RCRA DocketInformation Center, Office of SolidWaste (5305G), U.S. EnvironmentalProtection Agency Headquarters (EPA,HQ), 401 M Street, SW., Washington,DC 20460. Hand deliveries of commentsshould be made to the Arlington, VA,address below.

Comments may also be submittedelectronically through the Internet to:[email protected]. Comments inelectronic format should also beidentified by the docket number F–99–CKDP–FFFFF. All electronic commentsmust be submitted as an ASCII fileavoiding the use of special charactersand any form of encryption.

Commenters should not submitelectronically any confidential businessinformation (CBI). An original and twocopies of CBI must be submitted under

separate cover to: RCRA CBI DocumentControl Officer, Office of Solid Waste(5305W), U.S. EPA, 401 M Street, SW.,Washington, DC 20460.

Public comments and supportingmaterials are available for viewing inthe RCRA Docket Information Center(RIC), located at Crystal Gateway I, FirstFloor, 1235 Jefferson Davis Highway,Arlington, VA. The RIC is open from 9a.m. to 4 p.m., Monday through Friday,excluding Federal holidays. To reviewdocket materials, it is recommendedthat the public make an appointment bycalling 703 603–9230. The public maycopy a maximum of 100 pages from anyregulatory docket at no charge.Additional copies cost $0.15/page. Theindex and some supporting materialsare available electronically. See the‘‘Supplementary Information’’ sectionfor information on accessing them.FOR FURTHER INFORMATION CONTACT: Forgeneral information, contact the RCRAHotline at 800 424–9346 or TDD 800553–7672 (hearing impaired). In theWashington, DC, metropolitan area, call703 412–9810 or TDD 703 412–3323.For more detailed information onspecific aspects of this proposedrulemaking and regulatory decision,contact Bill Schoenborn, U.S. EPA(5306W), 401 M Street, SW.,Washington, DC 20460, (703) 308–8483,or e-mail: [email protected] INFORMATION: The indexand the following supporting materialsare available from the RCRAInformation Center:

1. Report to Congress on Cement KilnDust (59 FR 709, January 6, 1994).

2. Regulatory Determination onCement Kiln Dust (60 FR 7366, February7, 1995).

3. Notice of Data Availability:Additional Data Available on WastesStudied for the Report to Congress onCement Kiln Dust; Request forComments. (59 FR 47133, September 14,1994).

4. Correction to Notice of DataAvailability (59 FR 51440, October 11,1994).

The index and some of the supportingmaterials are available on the Internet.Follow these instructions to access theinformation electronically:WWW: http://www.epa.gov/epaoswer/

other/ckd/index.htmFTP: ftp.epa.govLogin: anonymousPassword: Your internet address

Files are located in /pub/epaoswer.The official record for this action will

be kept in paper form. Accordingly, EPAwill transfer all comments receivedelectronically into paper form and placethem in the official record, which will

also include all comments submitteddirectly in writing. The official record isthe paper record maintained at theaddress in ADDRESSES at the beginningof this document.

EPA responses to comments, whetherthe comments are written or electronic,will be published in a notice in theFederal Register or in a response tocomments document placed in theofficial record for this proposedrulemaking. EPA will not immediatelyreply to commenters electronically otherthan to seek clarification of electroniccomments that may be garbled intransmission or during conversion topaper form, as discussed above.

The contents of today’s document arelisted in the following outline:I. Statutory Authority

II. Background

A. Bevill AmendmentB. Report to Congress and Notice of Data

AvailabilityC. Regulatory Determination and Subsequent

Studies1. Summary of Agency’s Determination2. Proposed Enforceable Agreement3. The Need for CKD Management

Standards4. New Analyses

D. Beneficial Use of Cement Kiln Dust

III. Discussion of Options to Address RisksFrom Mismanaged CKD

A. State-Based ApproachB. Memorandum of UnderstandingC. Two-Dust ApproachD. Develop Regulations Under Authority of

Subtitle DE. Subtitle C Enforcement Without Listing

CKDF. Tailored Standards Under Subtitle CG. States Adopt Appropriate ProgramsH. Today’s Approach—Exclude Properly

Managed CKD From Hazardous WasteListing

1. Develop Management Standards andExempt Properly Managed CKD FromClassification as a Hazardous Waste(Management-based Listing)

2. Alternative Management-based Listing3. Characteristic CKD4. Apply Tailored RCRA Subtitle C

Standards to Improperly Managed CKD

IV. Proposed Management Standards

A. Protection of Ground-water Resources1. The Need for Ground-water Protection

Standards2. Applicability3. Location Standards4. Performance-Based Standard for the

Protection of Ground Water5. Technology-Based Standards for the

Protection of Ground Water6. Requirements for Ground-water

Monitoring7. Corrective Action

B. Standards for Fugitive CKD Emissions1. The Need to Limit Fugitive CKD

Emissions2. Applicability

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45633Federal Register / Vol. 64, No. 161 / Friday, August 20, 1999 / Proposed Rules

1 The other five proposed ‘‘special wastes’’specifically identified in the 1978 proposed rulewere mining waste; utility waste; phosphate rockmining, benefication, and processing waste;uranium waste; and oil and gas drilling muds andoil production brines.

2 It should be noted here that under the RCRASubtitle C Boilers and Industrial Furnaces (BIF)Rule, CKD generated by kilns that burn hazardouswaste as fuel may be ineligible for Bevill Exclusionunder certain conditions (see 40 CFR 266.112).

3. Performance Standard for the Protectionof Air

4. Technology-Based Standards forFugitive Dust Control

C. ClosureD. Post-Closure CareE. Closure/Post-Closure Planning

RequirementsF. Financial AssuranceG. Implementation

1. Notification, Recordkeeping, andReporting

2. Permitting RequirementsH. Applicability of the Boilers and Industrial

Furnaces RuleI. Exemption from the Definition of

Hazardous Waste1. Waste-Derived Clinker2. Light-Weight Aggregate Kiln Dust3. Use of CKD in Removal and Remediation

ActionsJ. Final Rule Effective Date

V. Subtitle C Backup Standards

A. Subtitle C Requirements for HazardousCKD Waste

1. 3004(x)—Special Characteristics2. Facility-wide Corrective Action

Requirement3. Manifest, Recordkeeping, and Reporting

RequirementsB. Implementation of Part 259 and RCRA

Subtitle C Backup Standards1. Enforcement2. Removal of a Hazardous Waste

Designation3. Alternative Approach to Structuring the

Performance Standards

VI. Standards for CKD Used as a LimeSubstitute

A. SummaryB. CKD Agricultural Use Risk Assessment

1. Risk Assessment Methodology2. Human Health Criteria and Effects3. Agricultural Use Practice Assumptions4. Fate and Transport of Chemical

Constituents in the Environment5. Uptake of Contaminants in Plant and

Animals6. Receptor Scenarios and Exposure

Pathways7. Lead Risk Assessment8. Ecological Risk and Phytotoxicity9. Risk Assessment Results

C. Approach to Establishing LimitingConcentrations

1. Risk-based Approach—ProposedLimiting Concentrations for Cadmium,Lead, and Thallium

2. Risk-Based Approach—ProposedLimiting Concentration for ChlorinatedDioxins and Furans

3. Comparison to Agricultural Lime—Proposed Limiting Concentration forArsenic

4. Peer Review of the Risk AssessmentD. Implementation of Controls for the

Agricultural Use of CKDE. Alternative Standard to Limit Chlorinated

Dioxins and Furans in CKD

VII. Relationships Between this Action andOther Regulatory Programs

A. Stormwater RegulationsB. Clean Air Act

VIII. State Authority

A. Statutory AuthorityB. Effect of Today’s Proposed Rule

IX. Regulatory Requirements

A. Regulatory Impact Analysis Pursuant toExecutive Order 12866

1. Scope and Approach for EstimatingEconomic Costs and Impacts

2. Summary of Cost and Impact Results3. Benefits of the Rulemaking

B. Regulatory Flexibility Analysis1. Identification of Small Cement

Companies2. Outreach3. The Agency’s RFA Screening Analysis4. Agency Findings and Conclusions

Regarding SBREFA ImpactsC. Environmental Justice—Applicability of

Executive Order 12898D. Protection of Children—Applicability of

Executive Order 13045E. National Technology Transfer and

Advancement ActF. Unfunded Mandates Reform ActG. Paperwork Reduction ActH. Executive Order 12875: Enhancing the

Intergovernmental PartnershipI. Executive Order 13084: Consultation and

Coordination with Indian TribalGovernments

Appendix I to the Preamble—Justification forCKD Listing

Appendix II to the Preamble—ReportableQuantities

I. Statutory Authority

Section 3001(b)(3)(C) of RCRA, asamended, required that, aftercompleting a Report to Congress (RTC)mandated by section 8002(o) of RCRA,the EPA Administrator must determinewhether Subtitle C regulation of cementkiln dust (CKD) waste is warranted. TheRTC documenting EPA’s study of CKDwas signed by the Administrator onDecember 30, 1993. EPA’s regulatorydetermination was published in theFederal Register on February 7, 1995(60 FR 7366). To implement thatdetermination, EPA is today proposingrules using its authorities under sections2002(a), 3001(b)(3)(C) and 3004(x) ofRCRA.

II. Background

On October 21, 1976, Congressenacted RCRA (Pub. L. 94–580). Section3001 of RCRA mandated that the EPAAdministrator ‘‘promulgate regulationsidentifying characteristics of hazardouswaste, and listing particular hazardouswastes which shall be subject to theprovisions of this subtitle.’’ Section3004 required the Administrator topromulgate standards applicable toowners and operators of hazardouswaste treatment, storage, and disposalfacilities.

In response to these requirements,EPA proposed regulations for managinghazardous wastes under Subtitle C of

RCRA on December 18, 1978 (43 FR58946). In this regulatory proposal, EPAproposed to defer most of the RCRASubtitle C requirements for sixcategories of wastes, which it termed‘‘special wastes,’’ until informationcould be gathered and assessed and themost appropriate regulatory approachdetermined. The special wastes werewastes typically generated in largevolumes, and, at the time were thoughtto possibly pose less risk to humanhealth and the environment than wastesbeing regulated as hazardous wastes.EPA identified CKD waste as one ofthese ‘‘special wastes.’’ 1

A. Bevill AmendmentOn October 12, 1980, Congress

enacted the Solid Waste Disposal ActAmendments of 1980 (Pub. L. 96–482),which added section 3001(b)(3)(A)(iii)(now frequently referred to as the BevillAmendment) to RCRA which, amongother things, temporarily exempted‘‘cement kiln dust waste’’ (along withtwo other categories of waste) fromSubtitle C regulation, pendingcompletion of certain studies. Theseamendments also added section 8002(o),which required the Administrator tostudy the adverse effects on humanhealth and the environment, if any, fromthe disposal of ‘‘cement kiln dustwaste,’’ and submit a Report to Congresson its findings. The 1980 amendmentsalso added section 3001(b)(3)(C), whichrequired the Administrator to make aregulatory determination, within sixmonths of the completion of the section8002(o) study, whether or not toregulate CKD waste under Subtitle C ofRCRA.

In response to the 1980 RCRAamendments, on November 19, 1980,EPA published an interim finalamendment to its hazardous wasteregulations to reflect the provisions ofthe Bevill Amendment (45 FR 76618),which is codified at 40 CFR 261.4(b)(8).Since that time, CKD has been exemptfrom Subtitle C of RCRA—that is, thismaterial has never been regulated as ahazardous waste under Federal law.2

B. Report to Congress and Notice ofData Availability

To comply with the Congressionalmandate and to establish the factual



3 The CKD sampling trip reports can be found inthe RIC under the following numbers: Phase Isampling trip reports (Nos. F–94–RCKA–S0001 toS0066); Phase II CKD sampling trip reports (Nos. F–94–RCKA–S0067 to S0073).

4 All of the analytical data on CKD can be foundin the Technical Background Document: Analysis ofCKD Generation and Characteristics Data, RICdocket Nos. F–94–RC2A–S0017 to S0017.G.

5 Additional data on CKD waste studied in theReport to Congress, including supplemental errata,is available in the RIC docket under the generalidentification number F–94–RC2A–FFFFF.

basis for EPA decision making regardingthe appropriate regulatory status of CKDwaste under RCRA, EPA published inDecember 1993 its ‘‘Report to Congresson Cement Kiln Dust’’ (RTC). In keepingwith the statutory requirements, thereport addressed the following eightstudy factors, as articulated at section8002(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 thedisposal of (CKD);

(4) Documented cases in whichdanger to human health or theenvironment has been proved;

(5) Alternatives to current disposalmethods;

(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 Federalregulations, so regulatory decisionsderived from the report would avoidduplication of existing requirements.

In preparing the RTC, EPA developedindustry-wide and, in some cases,facility-specific data and analyticalmethods that reflect the complexity ofthe issues addressed in the RTC.Facilities that generate CKD waste varyconsiderably in size, location,operational aspects, and wastemanagement techniques. Moreover, toexamine in detail the broad array ofstudy factors mandated by RCRAsection 8002(o), EPA developedapproaches and methods that weresufficiently sophisticated to take intoaccount the special nature of CKD. Thespecific methods that EPA used toaddress each of the study factors aredescribed in detail in Chapters 3through 9 of the RTC. Additionalinformation on the methods used andsupporting data are contained in theBackground Documents to the RTCavailable from the RIC as discussedabove under the ADDRESSES section.

In 1992 and 1993, the Agency visited20 cement manufacturing facilities inthe U.S. and obtained samples ofcement kiln dust generated by eachoperation.3 The Agency conductedchemical analyses on all of the samplesfor a number of constituents. Theanalytical results were used in thedevelopment of the RTC, and they wereincluded in the Agency’s RCRA docket

that supports the report. Late in thestudy, one final set of metals analyseswere conducted on the cement kiln dustsamples as managed (e.g., stored,disposed) by six of the 20 facilitiessampled. The Agency obtained the rawanalytical data too late for use indeveloping the RTC, but did include thedata in the RCRA docket for publicinspection and comment.4

After issuance of the RTC, the rawdata were subjected to data validationand the analytical results were finalized.Although not used in the developmentof the RTC, the Agency did considerthese data in the process of formulatingthe CKD regulatory determination.Accordingly, on September 30, 1994,EPA published a Notice of DataAvailability (NODA) (see 59 FR 47133)announcing the availability of theadditional analytical data. On October11, 1994 (59 FR 51440), the Agencypublished a Correction Notice whichidentified certain errors and correctedcertain portions of the new datapertinent to additional assessments ofpotential risk from CKD waste.5

C. Regulatory Determination andSubsequent Studies

1. Summary of Agency’s DeterminationOn February 7, 1995, EPA issued the

determination required by section3001(b)(3)(C) of RCRA, finding thatadditional control of CKD waswarranted (60 FR 7366). The Agencystated that its concerns about thepotential harm to human health and theenvironment posed by some CKDsuggest the need for some level ofregulation under RCRA Subtitle Cauthority. The Agency also recognizedthat certain of these areas of concern(those related to releases to surfacewaters) are more appropriatelycontrolled under other EPA-administered statutes. In order to avoidunnecessary duplication amongregulatory programs, EPA stated itwould rather use the other existingregulatory programs to control riskswhere appropriate, and develop a morecreative, affordable, and common senseapproach that would control the adverseeffects of CKD.

The Agency decided to develop,promulgate, and implement regulationsfor CKD as necessary to protect humanhealth and the environment by using avariety of statutes. For surface waters,

the Agency believes that existingregulations and the planned generalpermit under the National PollutantDischarge Elimination System (NPDES)permitting program provide an adequatemechanism for controlling point sourcedischarges and for managing stormwater that contains CKD. With respectto ground water, the Agency decided touse its authority under RCRA Subtitle Cprovided by sections 2002(a),3001(b)(3)(C), and 3004(x) to develop aprogram tailored to local cement plantconditions to control specific risks. Inthe regulatory determination, EPA alsostated that it would develop andimplement additional controls underthe Clean Air Act (CAA), as necessaryto address concerns relating to airemissions of CKD. Subsequently,however, EPA has concluded that RCRAauthorities will better serve thatpurpose. EPA’s reasons for changing itsapproach are discussed in detail inSection VII. B. (Clean Air Act) below.

For most off-site beneficial uses ofCKD (e.g., in waste stabilization orcertain construction uses), EPA’scurrent record indicates there are nosignificant risks. However, the Agencyalso decided to evaluate the need foradditional controls for a limited numberof off-site uses of CKD (such as use asa substitute for lime fertilizer onagricultural fields) in its regulatoryproposal. The Agency stated that itsfocus would be restricted to those off-site uses for which there may besignificant risks.

EPA also stated in the regulatorydetermination that specific RCRASubtitle C components deserveparticular scrutiny in developing atailored approach, including thefollowing: facility-wide correctiveaction under section 3004(u); landdisposal restrictions requirements(LDRs) under sections 3004(c),(d),(e),(f)and (g); minimum technology standardsunder section 3004(o); and permitrequirements under section 3005. EPAstated that most of the concernstraditionally addressed by the landdisposal restrictions program, permitrequirements, and the minimumtechnology standards would be bestaddressed through managementstandards developed specifically forCKD.

2. Proposed Enforceable AgreementOn March 22, 1995, the U.S. cement

industry, through the AmericanPortland Cement Alliance (APCA),submitted to the Agency a voluntarymanagement program for CKD. Thisprogram was based on earlier workAPCA submitted to EPA in 1993. Underthis voluntary program, cement



6 Based on subsequent review of the damagecases, except for two reassessments (one air damagecase and one surface water damage case), theAgency believes the information received incomment does not contradict the Agency’s basicconclusions regarding any of the damage casesidentified in the RTC and subsequent NODA. Adetailed description of these damage cases isavailable in Chapter 5 of the RTC.

7 RIC Docket Nos. F–94–RC2A–S0003 to S0015.8 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 docketon the Report to Congress.

9 These documents are available in the RIC docket(Nos. F–94–RCKA–FFFFF, F–94–RC2A–S0019 and–S0019.A).

manufacturing facilities would managetheir CKD according to industry-developed management standards, andEPA would enforce those standardsthrough a contract rather than throughregulation. The proposed agreementincluded provisions for compliancestandards, facility waste managementplans, a public participation process,enforcement, and penalties. Theindustry indicated that its intent was toprovide the Agency with a constructivealternative to Subtitle C regulation thatwould not stigmatize CKD as hazardouswaste.

The proposed enforceable contractrepresented a new approach and raiseda number of legal and technical issueswhich EPA evaluated. The Agency alsocontacted various State agencies,industry groups, and public citizengroups to assess their positions on theproposal. Although EPA in the past hasentered into unenforceable ‘‘voluntary’’agreements with other industries, theAgency has determined that it does nothave inherent contract authority to enterinto enforceable agreements, although ithas authority to enter into enforceableconsent orders under the imminenthazard provisions of RCRA section7003, or section 106 of theComprehensive EnvironmentalResponse, Compensation, and LiabilityAct of 1980 (CERCLA). The cementindustry chose not to pursueenforceable agreements under theseauthorities because of concern that itwould be inappropriate to characterizeCKD as posing an imminent andsubstantial danger to human health andthe environment.

3. The Need for CKD ManagementStandards

In the RTC, the Agency described thedecision rationale used to make itsregulatory determination. The Agencyapplied a step-wise approach that itconsidered to be consistent withCongressional intent that EPA considerall of the study factors listed in RCRAsection 8002(o). The methodology usedby EPA examined the need for CKDmanagement standards and theeconomic consequences of imposing fullSubtitle C requirements on the industry.(See 60 FR 7366 for a discussion of thesteps EPA considered in determiningthe need for CKD managementstandards.)

a. Documented Evidence of DamageThe Agency determined that the

potential exists for hazardousconstituents, including metals, tomigrate from CKD waste sites and thatCKD has caused documented impacts(and may continue to cause impacts) at

levels of concern. Information isavailable to indicate that ground waterhas been affected by CKD managementunits. During the development of theRTC, the Agency identified five cases ofdamage to ground water, 10 cases ofdamage to surface water and 21 cases ofdamage to air from CKD wastemanagement units.6 Two additionalcases of ground water damage, twoadditional cases of surface waterdamage, and 16 additional cases of airdamage were subsequently identified inthe 1994 NODA and placed in the RCRAdocket in a technical backgrounddocument entitled AdditionalDocumented and Potential DamagesFrom the Management of Cement KilnDust (See 59 FR 47133, September 14,1994).7 In its Regulatory Determination,EPA stated these cases suggest thatdespite State regulations damagescontinued to occur with current (i.e., asof 1994) CKD management practices.

Typically, ground-water damageswere the result of metals constituentsleaching into ground water fromunlined CKD landfills and waste piles.Ground-water damages were of concernto the Agency because relatively few(17% in 1991) of all CKD managementunits had ground-water monitoringsystems, while 25 of 91 cementmanufacturing facilities were reportedin 1991 to be located within one mileof a public drinking water well.Additionally, ground-water damage wasa major factor cited for including twoCKD disposal units on the CERCLA(Superfund) National Priorities List(NPL).

Damages to air were also identifieddue to particulate emissions of CKDfrom quarries, haul roads, and CKDhandling equipment. Most of these casesinvolved visible emissions violations(opacity) related to equipmentmalfunctions associated with CKDhandling equipment (kilns, baghouses,and screw conveyors). In the regulatorydetermination, EPA characterized theair releases as persistent, with manyfacilities having more than oneviolation. Also, significant releases ofairborne particulates were frequentlyobserved first-hand by Agency staffduring the course of the RTC study.8

b. Potential Risks to Human Health andthe Environment

The Agency conducted a series of riskscreening and site-specific riskmodeling studies to evaluate potentialrisks from on-site management and off-site uses of CKD. Methodologies andresults of these studies weredocumented in Chapter 6 of the RTCand its related technical backgrounddocuments and in two subsequent EPAtechnical background documentsentitled Human Health andEnvironmental Risk Assessment inSupport of the RegulatoryDetermination on Cement Kiln Dust(August 31, 1994) and SupplementalErrata Document for the TechnicalBackground Document for the Notice ofData Availability on Cement Kiln Dust(September 30, 1994).9

EPA assessed the risks of potentialreleases of CKD contaminants to theenvironment, both during the routinemanagement of the dust at cementplants and during beneficial use of thedust at other locations. The riskassessment was intended tocomplement the damage case study,which provided actual instances ofenvironmental contamination,sometimes attributable to managementpractices and facility settings notconsidered in the risk assessment. Therisk assessment was also intended tocover the potential for certain moresubtle or long-term risks that might notbe evidenced in the damage case files.

One of the primary objectives of therisk assessment was to evaluate, asrealistically as possible, the baselinerisks of CKD management practices atactual sites. This was accomplished byfocusing initially on a sample of case-study cement plants and off-sitebeneficial use scenarios that appeared toprovide a reasonable representation ofthe universe of sites where CKD isdisposed and used. For each samplesite, EPA evaluated the potential forCKD contaminants to be released intothe environment, migrate to possiblehuman and ecological receptors througha number of media and pathways (e.g.,ground water contamination, surfacewater runoff to streams or lakes,windblown dust) and result inexposures and adverse effects. Thisevaluation included a combination ofqualitative analyses designed todocument and describe major factorscontributing to (or limiting) risks, andquantitative modeling designed to



10 Karst terrains are defined in this proposal at 40CFR 259.16(b)(1) as areas where karst landscape,with its characteristic hydrogeology and/orlandforms are developed.

11 EPA hazardous waste identification rules donot include a characteristic or definition for solidcorrosives.

12 Supporting documentation for this analysis canbe found in Chapter 7 of the RTC—ExistingRegulatory Controls on CKD Management.

estimate the magnitude of risks. Theanalysis conducted for the RTC wasthen expanded to incorporate significantnew information collected after the RTCwas published. This expanded analysis,which is documented in EPA’s technicalbackground document supporting theAgency’s 1995 RegulatoryDetermination enabled EPA tocharacterize risk levels for each pathwayat each plant for the facilities evaluated.

The Agency’s analysis indicates thatthere are potential risks warrantingconcern, from both current on-site wastemanagement practices and certain off-site beneficial uses. Based on theseanalyses, EPA predicted only low ornegligible risk potential from on-sitemanagement of CKD via direct exposurepathways (e.g., ingestion of drinkingwater) . The Agency did find potentialrisk to human health via indirect (i.e.,foodchain) exposure pathways,however. Potential risks from exposureto particulate matter were alsoindicated.

The Agency modeled health risks viaindirect food-chain pathways (i.e., risksfrom ingestion of contaminated crops,livestock, or fish). These contaminantsreach food products via movement ofstormwater run-off and/or windblowndust from uncontrolled CKD storage ordisposal areas to nearby water bodiesand farm fields. EPA’s foodchainpathway analysis estimated potentialindividual cancer risks from 1 × 10–5 (1in 100,000) to 1 × 10–3 (1 in 1,000) forhighly exposed subsistence fishers andfarmers. Cancer risks of concern weredue primarily to exposure to arsenic inCKD. Similar cancer risk levels due todioxins are also possible at someadditional sites. However, the Agency’sdata base on dioxin levels in CKD wasnot extensive enough to conduct a largescale study. EPA’s risk modeling alsoestimated potential exceedances of non-cancer hazard thresholds via indirectexposure to the toxic metals cadmium,chromium, thallium and lead, which arepresent in CKD.

Finally, EPA’s CKD analysis indicatedpotential human health risks due toexposure to the fine particulate matter(PM) which characterizes CKD. Basedon the Agency’s analysis, windblowndust (PM less than 10 microns in size)from uncontrolled CKD wastemanagement units could exceed EPA’shealth-based fine particulate NationalAmbient Air Quality Standard (NAAQS)at plant boundaries and potentially atnearby residences. Further analysis ofpotential exposure to airborne PM fromcement kiln dust waste managementunits was conducted as part of EPA’spopulation risk assessment. Thisanalysis also indicates that persons

living around cement plants may beexposed to airborne PM concentrationsin excess of the NAAQS. An overviewof the population risk assessment isprovided in Section II.C.4.a. of thispreamble. A detailed description of thatanalysis is provided in the technicalbackground document on populationrisk assessment.

As previously noted, the Agencypredicted a negligible impact to groundwater and consequently low ornegligible risk to human health viaingestion of contaminated drinkingwater. However, a large percentage ofcement plants (and CKD managementunits at those cement plants) are locatedin areas of karst terrain, 10 many ofwhich may be underlain by bedrockwith hydrological characteristicsconducive to leachate transport to off-site locations with limited filtration,adsorption, and dilution. For reasonsdiscussed in the regulatorydetermination, the Agency determinedthat its ground-water model is notsuitable for modeling in karst terrain.The Agency has evidence of ground-water contamination at each facilitywhere ground-water data were available,and thus conducted additional analysesof ground-water transport.

The Agency conducted two additionalground-water analyses to evaluate thepotential for ground water transport atCKD management facilities. In the firstanalysis, the Agency evaluated whetherthe choice of ground water modelssignificantly influenced the results. Inthis analysis, the Agency used EPA’sComposite Model for LeachateMigration with Transformation Products(EPACMTP) with the same parametersused in the modeling to support theReport to Congress. The Agencyconcluded that the choice of models didnot significantly influence theconclusions on ground water transport.In the second analysis, the Agencyparameterized the thermodynamicisotherms to reflect the major ions likelyto be present in CKD and the typicalpHs found in CKD. Based on thisanalysis, the Agency concluded that thecomposition of CKD leachate may makemetals more mobile. These analyses arediscussed in Section II.C.4.b, AdditionalGround Water Modeling.

The Agency’s initial risk assessmentfor off-site beneficial uses of CKDindicated that most off-site uses do notpose significant risks. Direct croplandapplication, however, occurs at anumber of locations in the country.

Screening level analyses of agriculturaluse described in the RTC and NODAsuggest that some CKD, at plausibleapplication rates, contains sufficientlyhigh concentrations of metals anddioxins to cause food chain risks. Basedon these initial findings, EPA conducteda more detailed analysis of potentialrisks from use of CKD as an agriculturalliming agent. A summary description ofthe agricultural use analysis and resultsof that analysis are presented in SectionVI.—Standards for CKD Used as a LimeSubstitute.

c. Waste CharacteristicsWhile CKD itself does not exhibit the

RCRA Subtitle C hazardous wastecharacteristic of corrosivity (40 CFR261.22), EPA’s data show that mixturesof CKD and water often exhibit thecharacteristic of corrosivity. 11 Inparticular, EPA data show that the pHlevel in run-off from precipitation thatcontacts CKD storage and waste pilestypically exceeds 12.5 standard units,the standard for the corrosivitycharacteristic for hazardous wastes (40CFR 261.22). In addition, EPA’sanalyses of CKD show that CKD doescontain certain metals listed inAppendix VIII (‘‘HazardousConstituents’’) Part 261 of RCRA. Formany of the toxic metals, the totalconcentrations in kiln dust were notsignificantly different whether the dustwas generated in kilns that burn or donot burn hazardous waste. Likewise, interms of potential constituent solubilityand release, leach test results show thatno significant distinction can be madebetween CKD generated from kilns thatburn hazardous waste and those that donot burn hazardous waste.

With respect to organics, volatile andsemi-volatile compounds were generallynot found in CKD. However, levels of2,3,7,8-substituted dioxin, and 2,3,7,8-substituted dibenzofuran were detected,although the concentrations weregenerally low. The calculated 2,3,7,8-tetrachlorinated dibenzo-p-dioxinstoxicity equivalence (TEQ) values forthe facilities sampled by EPA rangedfrom non-detected to 9 ppt.

d. Adequacy of Existing RegulationsIn making its regulatory

determination, EPA evaluated State andFederal regulations pertaining to CKDwaste and concluded that morestringent regulation of CKD is necessarybased on current regulatory schemes. 12



13 This is an estimate based on site-specific datafor 61 facilities and extrapolated data for theremaining 47 facilities.

14 The estimate of 393 people is based on anevaluation of 52 of the 82 cement facilities; basedon analyses conducted previously the remaining 30facilities were determined to have zero or negligibleeffects in terms of PM exposures because they donot manage CKD on-site (see methodology andresults presented in Technical BackgroundDocument on Potential Risks of Cement Kiln Dustin Support of the Cement Kiln Dust RegulatoryDetermination, January 31, 1995).

The Agency also determined thatcurrent practices are inadequate to limitcontaminant releases and associatedrisks. CKD is now managed primarilyon-site in non-engineered landfills,piles, and ponds. Many piles andlandfills lack liners, leachate controls,or run-on/run-off collection systems. Inaddition, while dust suppressionmeasures exist at many facilities, itappears that they are generallyineffective at controlling airbornereleases of CKD. The Agency believesthe following factors warrant additionalenvironmental controls for CKD: (1) thegeneral lack of current regulationsapplicable to contaminant discharges toground water for protection of humanhealth and the environment; (2) thegeneral lack of ground-water monitoringsystems at CKD disposal units; and (3)the existence of damages to groundwater and air that are persistent andcontinuous, and for which norequirements exist to address the risksposed via these pathways.

4. New Analyses

a. Population Risk

Subsequent to the RegulatoryDetermination, the Agency calculatedpopulation risks for individuals livingin the vicinity of cement manufacturingplants that manage CKD onsite. Theassessment included population risksfrom indirect, or foodchain, exposurepathways and population effects fromexposure to airborne particles, but notpotential population risks frombeneficial use of CKD. This work buildson earlier CKD analyses focusing on thehealth risks to maximally exposedindividuals, presented in the RTC onCKD and supporting documentation, the1994 NODA on CKD, and a backgrounddocument supporting the 1995 CKDRegulatory Determination. A detaileddescription of the population riskassessment is provided in the TechnicalBackground Document: PopulationRisks from Indirect Exposure Pathways,and Population Effects from Exposure toAirborne Particles from Cement KilnDust Waste in the docket for this rule.

The assessment of population risksfrom indirect exposure estimates thenumber of cancer cases and the numberof people living near cement plants thatare potentially exposed abovenoncancer effect thresholds through theingestion of vegetables, beef and milk,and fish. For this analysis, existingfacility-specific individual riskestimates were combined with facility-specific data on populations potentiallyexposed via indirect pathways to derivefacility-specific population riskestimates. As a first step, information on

individual risk generated from a sampleof 82 facilities was used to identify andeliminate from concern those facilitiesthat have negligible potential forsignificant population risk. Forremaining facilities, population risk forthe vegetable ingestion pathway wascalculated by combining prior estimatesof individual risk with estimates ofnearby farmers and backyard gardenersbased on census data. For the final step,results from the 82 facilities for whichfacility-specific information wasavailable were extrapolated to the totaluniverse of 108 cement facilities.Population risk for the fish ingestionpathway was estimated using existingfacility-specific individual riskestimates along with numbers ofrecreational fishers that could beexposed, calculated based on fish yielddata from local streams. Facility-specificresults were then extrapolated to the fulluniverse of cement plants to obtain totalpopulation risk for this pathway.

The Agency estimates that exposuresvia indirect pathways occurring inpopulations within five miles of allcement plants nationwide potentiallyresult in a total of 0.04 excess cancercases over a 70-year period. That is,exposures would potentially lead toabout 0.009 excess cancer cases in thesubsistence farmer population, andabout 0.03 excess cancer cases in the‘‘homegrown’’ population. Cancer casespredicted for the recreational fisherpopulation are negligible. The totalpopulation within five miles of allcement facilities nationwide isapproximately 3.4 million.13 Thus, theoverall population cancer risk can becharacterized as follows: a total of0.0006 excess cancer cases per yearcould potentially occur within thispopulation of 3.4 million due to indirectexposures.

For population noncancer effects,EPA predicts that, across all populationswithin five miles of all cement facilitiesnationwide, a total of about 1,040people are potentially exposed viaindirect exposure pathways tocontaminant levels above the hazardindex. That is, about 6 individuals fromthe population exposed tocontamination from homegrownvegetables are exposed to contaminationexceeding noncancer effects thresholds(i.e., hazard index greater than 1). About37 individuals from the subsistencefarmer population and about 1,000individuals from the recreational fisherpopulation are estimated to be exposedto contamination exceeding noncancer

effects thresholds. The overallpopulation noncancer effects can becharacterized as follows: a total of about1,040 people, or less than one-tenth ofone percent, from among the populationof 3.4 million within five miles of allcement plants nationwide is likely to beexposed via indirect exposure pathwaysto contamination exceeding noncancereffects thresholds.

The assessment of population effectsfrom exposure to airborne particlesestimates the number of peoplepotentially exposed to fugitive CKD atlevels above the National Ambient AirQuality Standards (NAAQS) forparticulate matter (PM). Both theexisting NAAQS for coarse particles anda new NAAQS proposed for fineparticles were considered. Newmodeling of CKD emissions anddownwind dispersion was performedfor selected ‘‘high risk’’ cement plants,substantially improving on the previouswork by using advanced modelingtechniques, estimating emissions fromall CKD handling stages rather than justfinal disposal as modeled previously,and considering the effect of terrain,among other refinements. Theconcentrations of airborne particleswere then overlaid on census blockgrids to estimate populations potentiallyexposed above the PM10 NAAQS. TheAgency estimates that about 18 peoplemay be exposed to airborne PM10

concentrations in excess of the NAAQSaround the 82 facilities for whichfacility-specific information isavailable.14 As with the indirectexposures analysis, EPA derived a morecomplete picture of potential populationeffects due to PM exposures byextrapolating from results within theknown universe to determine thepotential population effects for the fulluniverse of cement facilities. In sum,EPA estimated that, across all 108facilities, a total of between 18 and4,118 people living within 500 meters ofthe facility boundary may be exposed toairborne PM concentrations in excess ofthe NAAQS. It is not known whatpercentage of the population exposedabove the NAAQS is likely to developany morbid effects because the dose-response relationship for PM exposuresis not well defined.



15 U.S. EPA, 1996a. Background Document forMetals. EPA Composite Model for LeachateMigration with Transformation Products(EPACMTP). Volume 1: Methodology. U.S. EPA,Office of Solid Waste, Washington, DC 20460.

16 U.S. EPA, 1996b. EPA Composit Model forLeachate Migration with Transformation Products(EPACMTP) Background Document. U.S. EPA,Office of Solid Waste, Washington, DC 20460.

b. Additional Ground-Water Modeling

Because the available damage casesindicate the potential for impacts toground water in areas of non-karstterrain (four of the 13 damage cases arelocated in areas of non-karst terrain), theAgency conducted additional ground-water modeling to evaluate the potentialsubsurface transport of metals in non-karst terrain. The additional modelingoccurred in two phases. In Phase I, theAgency tested the sensitivity of themodeling by incorporating the sameassumptions used in the modeling tosupport the Report to Congress inEPACMTP, a ground-water model usedby EPA to conduct nationalassessments. The intent of this exercisewas to determine whether modelselection significantly influenced theconclusions regarding the subsurfacetransport of constituents to receptorlocations. In Phase II, the Agencyevaluated the sensitivity of EPACMTPto assumptions regarding the speciationand adsorption of metals. In thisanalysis, the Agency revised theisotherms generated by MINTEQA2, ageochemical speciation model,15 toreflect higher pHs (as found in CKDleachate), more appropriate ions in theleachate, and a lower dissolved organiccarbon concentration in the leachate.

In Phase I of the additional ground-water modeling, EPA evaluated thesensitivity of its previous modelselection by estimating constituentconcentrations at well locations withEPA’s regional ground-water model,EPACMTP. The results from thisanalysis were then compared with theresults generated by the previousmodeling, which used MMSOILS.EPACMTP combines a finite sourcemethodology with a metal-specificprocedure (using MINTEQA2) forhandling geochemical interactions thataffect the subsurface fate and transportof metals. A complete description of thismethodology is available in EPAComposite Model for LeachateMigration with TransformationProducts: Background Document forMetals, which has been placed in theRCRA docket in support of thisproposed rule.16 The analysisincorporated the same data andassumptions used to support the

ground-water modeling for the EPA’s1993 Report to Congress.

In general, the revised modeling usingEPACMTP predicted lowerconcentrations of metals in groundwater for antimony, arsenic, chromium,cadmium, and thallium and higherconcentrations for barium andberyllium. At all facilities, the risk fromcontaminated ground water predictedby EPACMTP was negligible. Leachingof lead was negligible in both modelingexercises (the MMSOILS modelpredicted that lead would reach thewater table at only one modeledfacility). From this analysis, the Agencyconcluded that the selection of ground-water models was not the mostsignificant reason for the inability of themodeling to predict elevated metalconcentrations in ground water.

In Phase II of the additional ground-water modeling, EPA evaluated thesensitivity of the ground-watermodeling results to changes inassumptions regarding the speciationand adsorption of metals in CKDleachate. Specifically, EPA revised theassumptions about pH, presence ofleachate organic acids, and ions presentin CKD leachate to generate newpartitioning coefficients (Kds) for fivemetals: barium, beryllium, cadmium,chromium, and lead. The Agency thenused the same modeling protocol forEPACMTP described above to evaluatethe effects on ground-water fate andtransport of these five metals. A moredetailed description of the revisions tothe MINTEQA2 isotherms and thecaveats associated with these analysesare available in the technical supportdocument Examination of MetalsTransport under Highly AlkalineConditions, which has been submittedto the docket in support of thisproposed rule.

This additional analysis indicates thatmigration of the metals may be sensitiveto the pH of the leachate and thebuffering capacity of the unsaturatedand saturated zones. Under highlyalkaline conditions with little or nobuffering, cadmium, chromium, lead,barium, and beryllium are predicted tobe more mobile. In general, these metalsdisplayed a greater tendency to movethrough the unsaturated zone and reachthe ground water. For example, theanalysis indicated that at four of the fivemodeled facilities, elevated levels ofbarium, beryllium, cadmium,chromium, and lead were found in theground water within 10 meters of thedisposal unit. At four of the modeledfacilities, concentrations of leadexceeded EPA’s action level for lead of0.015 mg/L within 10 meters and at onefacility, chromium exceeded its

maximum concentration limit (MCL) of0.1 mg/L by less than a factor of 10. Inaddition, modeling indicated thatberyllium, cadmium, and chromiumwould have concentrations within afactor of 10 of their respective MCLs atfour facilities, one facility, and twofacilities, respectively.

c. New CKD Waste Characteristics DataIn an effort to further understand the

influence of hazardous waste burningon CKD composition, EPA hasundertaken analyses of two new sourcesof data on toxic metals in CKD. In June1996, as part of a RCRA § 3007 datarequest, EPA collected information onconstituent concentrations in CKD fromseven cement plants within Region VIIthat burn hazardous waste, to the extentavailable for each of the five years 1991through 1995. In October 1996, newCKD constituent data from 15 cementplants that do not burn hazardouswaste, collected during July and August1996, were submitted to the Agency bythe Non-Hazwaste Burner CKDCoalition (NHBCC).

The EPA Region VII data set consistsof analytical results from a substantialnumber of CKD samples, varying byplant, by constituent, and by year froma few dozen to a few hundred per year.All of these data reflect CKD generatedby the seven plants while burninghazardous waste. The NHBCC data setconsists of analytical results from six to32 CKD samples from each non-burningplant. Although both data sets havetheir individual nuances, the Agencybelieves these data sets togetheraccurately reflect constituent values inCKD for both types of kilns, and tend tocomplement one another. Both data setsare available in the RCRA docket for thisrule.

The NHBCC, EnvironmentalTechnology Council (ETC), and localcitizen groups have asserted to EPA staffthat these new data demonstratestatistically significant differences in theconcentrations of total metals betweenCKD from kilns that burn conventionalfossil fuels (‘‘non-hazardous wasteburner CKD’’) and CKD from kilns thatburn RCRA hazardous waste(‘‘hazardous waste burner CKD’’). TheNHBCC argues that these differencesaffect the potential risk associated withthe disposal of CKD and that non-hazardous waste burner CKD exhibitsonly isolated elevated concentrations oftoxic constituents, hence relatively lowrisk compared to hazardous wasteburner CKD. As explained in SectionIII.C. below, the NHBCC believes thesedifferences justify EPA imposing aregulatory distinction betweenhazardous waste burner CKD and non-



17 The highest thallium values in CKD reportedfrom the 15 NHBCC plants are associated withcement kilns that recycle over 90% of their CKDback into the manufacturing process.

18 Bhatty, J.I., 1995, Alternative uses of CementKiln Dust. Portland Cement Association PublicationRP327, 18p.

19 ASTM, 1991. Standard Guide for CommercialUse of Lime Kiln Dusts and Portland CKDs. 1990Annual Book of American Society for Testing andMaterials Standards. Volume 11.04. MethodNumber D5050–90. pp. 172–174.

hazardous waste burner CKD, a so-called ‘‘two-dust approach.’’

EPA has considered the NHBCC’sassertion of statistical differencesbetween hazardous waste burner andnon-hazardous waste burner CKD, but atthis point based on available data doesnot accept their assertion of lower riskfor non-hazardous waste burner CKDrelative to hazardous waste burner CKDfor the following reasons. First, whenhazardous waste burner and non-hazardous waste burner CKD data setsare compared, for some toxic metals thestatistical distribution of concentrationsin each group significantly overlap. Forexample, for the constituent arsenic,CKD from ten out of 15 non-hazardouswaste burner plants have mean totalconcentrations in excess of the meanconcentration of arsenic in hazardouswaste burner CKD averaged from theseven hazardous waste burning plantsin EPA Region VII (1995 data); and CKDfrom seven out of 15 non-hazardouswaste burner plants have mean arsenicconcentrations higher than the meanconcentration reported for hazardouswaste burner plants in the EPA NODA.Similarly, for chromium, CKD from fourout of 15 non-hazardous waste burnerplants have mean total concentrations inexcess of the mean concentration forchromium in hazardous waste burnerCKD averaged from the seven hazardouswaste burning plants in EPA Region VII(1995 data). Because of this overlap,EPA does not believe that all non-hazardous waste burner CKD poses lesspotential hazard than hazardous wasteburner CKD. Furthermore, a comparisonof means suggests constituentconcentrations for all toxic metals arewithin the range of data reported in theEPA NODA. EPA believes that the newinformation supports the Agency’sprevious conclusion that metals levelsin CKD are not substantially different,whether generated by kilns that burnhazardous waste or kilns that do notburn hazardous waste.

Second, concentrations of the toxicconstituent thallium in non-hazardouswaste burner CKD are consistentlyhigher than in hazardous waste burnerCKD. The mean concentration forthallium in non-hazardous waste burnerCKD from the 15 NHBCC plants (180.5mg/kg) 17 is over three times higher thanthe mean concentration for 31 non-burning plants reported in the EPANODA (52.3 mg/kg), and 47 timeshigher than the mean concentration inhazardous waste burner CKD from the

seven EPA Region VII plants (3.8 mg/kg). The NHBCC has argued thatrelatively higher concentrations ofthallium in non-hazardous waste burnerCKD are not caused by fuels but by CKDrecirculation and, therefore, non-hazardous waste burner CKD should notbe regulated because this material isnever disposed. The Agency believesrecirculation of CKD back into thecement manufacturing process isbeneficial because recirculated CKDwould never be disposed. Forty-sevenout of 88 non-hazardous waste burnerplants, however, reported wasting CKDin 1995, so the Agency remainsconcerned that disposal of CKD withelevated levels of thallium could stillpose a potential hazard to human healthand the environment.

Third, the NHBCC data have notaddressed the cases of environmentaldamage or PM10 risks that form the basisof the EPA’s Regulatory Determination.The Agency finds no basis for changingthe Regulatory Determination to regulateonly CKD from hazardous waste burningkilns. The damage cases resulted fromon-site management of CKD in non-engineered landfills, piles and ponds, atplants that largely do not or did notburn RCRA hazardous wastes. Inaddition, CKD, regardless of fuelsburned, contains particles 10 microns insize and smaller, and could potentiallypose risks to human health if releasedthrough fugitive emissions.

EPA requests additional data onhazardous waste burner and non-hazardous waste burner CKD. If newinformation warrants such action, theAgency would re-evaluate its currentposition on the appropriate levels ofcontrol for hazardous waste burner andnon-hazardous waste burner CKD.

D. Beneficial Use of Cement Kiln DustIt is likely that even with advances in

recycling technologies, some CKD willneed to be removed from kiln systems.Because resources are lost when CKD ispermanently disposed, and becausedisposal practices can be burdensome,finding alternative uses for waste CKDcan help facilities avoid disposal costsand generate additional revenue, whileat the same time reduce the amountdisposed of in landfills. Currently, CKDis used beneficially for sludge-, waste-,and soil-stabilization, land reclamation,waste remediation, acid neutralization,agricultural applications, such as afertilizer or lime substitute, andconstruction applications. 18 Accordingto responses from the 1991 Portland

Cement Association (PCA) Survey andRCRA section 3007 requests, about780,000 metric tons (860,000 tons) ofCKD were used beneficially in 1990, or5.4 percent of the gross CKD generatedin 1990, and about 19 percent of the netCKD generated for that year. This totalrepresents 9.5 percent of the 8.2 millionmetric tons of CKD recycled directlyback into the kiln or raw feed system in1990. Of the 780,000 metric tons, about71 percent (670,000 metric tons) wasused for waste stabilization, 12 percent(111,000 metric tons) for soilamendment, 5.6 percent (53,000 metrictons) as liming agent, nearly threepercent (25,000 metric tons) as materialsadditives, about one percent (11,000metric tons) as road base, and eightpercent (76,000 metric tons) for otheruses.

The American Society for Testing andMaterials (ASTM) standards advise thatuse of CKD should be undertaken onlyafter the material’s characteristics havebeen properly evaluated with respect tothe intended application. ASTM alsorecommends frequent performancetesting until the degree of variability hasbeen established. 19 The manner andextent of CKD adaptation for beneficialapplications is in constant flux asresearch and development of CKD usecontinue to grow.

Most current off-site uses, such as forwaste stabilization or land applicationas fill material, are either currentlyregulated (under RCRA for hazardouswaste stabilization, or under the CleanWater Act in the case of municipalsewage sludge) or appear to present lowrisk due to low exposure potential. Asexplained in the RegulatoryDetermination, in light of the lowexposure potential, EPA believes thatthese uses constitute environmentallysound recycling and beneficial use.Therefore, the Agency is not proposingmanagement standards for thesebeneficial uses of CKD or to list as ahazardous waste CKD used for suchpractices. We are proposing thatbeneficially used CKD is non-hazardouswaste. Thus, with the exception of CKDused for agricultural purposes, EPAsolicits comments on these and otherpotential uses that might constituteenvironmentally sound recycling orbeneficial use.

As explained previously, the Agency’srisk assessment data on the use of CKDas a lime substitute on agriculturalfields indicates that some smallpercentage of CKD (roughly 5%) may



20 The cement industry’s proposed managementpractices (version 6/1/5), see RIC docket No. F–99–CKDP–S0031.

21 For a copy of the MOU, see RIC docket No. F–99–CKDP–S0107.

present risk to human health and theenvironment and, therefore, theagricultural use of CKD warrantscontrols. Accordingly, in today’s rule,EPA proposes to limit concentrations forarsenic, cadmium, lead, thallium andchlorinated dibenzodioxins anddibenzofurans in CKD used foragricultural purposes. If used foragricultural purposes, CKD withconcentrations of these substances inexcess of today’s proposed limitingconcentrations would be considered alisted hazardous waste.

III. Discussion of Options To AddressRisks From Mismanaged CKD

Today’s proposal presents severalpossible approaches, including theAgency’s preferred approach foraddressing the hazards presented byCKD. EPA invites commenters toaddress these approaches, so that EPAcan evaluate the Agency’s preferredapproach not only on its own merits butalso in comparison to these alternatives.If, when issuing the final regulation forCKD, EPA were to rely on aMemorandum of Understanding,regulation exclusively under Subtitle Dof RCRA, the State-based approach, andthe Two-Dust approach presentedbelow, the Agency would have to revisitthe Regulatory Determination.

The Agency would more favorablyconsider the State-based regulatoryapproach or MOU if: (1) there weremore evidence that cementmanufacturing facilities have madeimprovements to their CKDmanagement practices; (2) there wasgreater agreement among allstakeholders regarding appropriate CKDmanagement standards; (3) there was astrong level of support from industry,States, and other stakeholders formovement toward an MOU or State-based approach; and (4) the alternativeadequately considered the interests ofother parties with a stake in theAgency’s CKD rulemaking. In making afinal rule determination, EPA mayconsider some combination of thealternative approaches discussed.

A. State-Based ApproachThe American Portland Cement

Alliance (APCA) has submitted aproposal to EPA for a State-basedapproach to cement kiln dust (CKD)management. The main components ofAPCA’s proposed approach are listedbelow, in chronological order:

(a) EPA Would Complete Work onCKD Management Standards. EPAwould complete internal work, alreadybegun during discussions regardingAPCA’s proposed enforceableagreement, which is discussed above in

Section III.A.—State-Based Approach, torefine the CKD management standardsfor issuance as guidance as providedbelow.

(b) EPA Would Publish ProposedGuidance and ‘‘Backstop’’ RegulatoryRegime For Public Comment. APCAproposes that EPA would publish aNotice of Data Availability in theFederal Register which would have twoseparate components. The firstcomponent would describe andsummarize the key components of theCKD management standards, andannounce the public availability of acomplete copy of the CKD managementstandards. APCA proposes that in theNotice, the Agency would announce itswillingness to withdraw its earlierRegulatory Determination if all of theStates in which CKD is land disposeddeveloped an adequate CKDmanagement program within two years.The second component would be a‘‘backstop’’ proposed rule based on a‘‘conditional exclusion’’ or ‘‘contingentmanagement’’ approach in which RCRASubtitle C authority would not betriggered unless the conditions of theexclusion were violated. APCAproposes that EPA would finalize theproposal only if one or more States inwhich CKD is land disposed do nothave an adequate CKD managementprogram within two years. EPA wouldsolicit public comment on all aspects ofthe Notice.

(c) EPA Would Publish FinalGuidance In Response To PublicComment. APCA proposes that one yearafter publishing the initial guidance andbackstop proposal, EPA would publishits ‘‘final’’ guidance in a subsequentFederal Register notice in response topublic comments. In this notice, EPAwould also include an explicit time linefor the remaining steps in the State-based approach.

(d) EPA Would Take Final ActionRegarding Inadequate State Programs.Two years after publishing the initialproposed guidance and backstopproposal, APCA proposes that EPAwould publish another Federal Registernotice announcing its assessment of theadequacy of State CKD managementprograms. APCA proposes that if EPAfinds that such State programs areadequate, the Agency would announcewithdrawal of its 1995 RegulatoryDetermination. Conversely, if theAgency finds one or more States withinadequate CKD programs, APCAproposes that EPA issue a final rule thatwill be effective in those States. Theseregulations would be based on aconditional exemption approach inwhich RCRA Subtitle C authoritieswould not be invoked unless terms of

the exemption were violated. For thoseStates with adequate programs, EPAwould withdraw its 1995 RegulatoryDetermination.

The technical standards in today’sproposed rule reflect completed internalwork on appropriate CKD managementstandards and could serve as the Noticethat APCA suggests in (b) above. In ourview, the Part 259 standards representproposed final management standardsfor CKD management, and the standardsproposed today under Part 261 couldform a ‘‘backstop rule.’’ The Agencysolicits comments on APCA’s proposedState-based regulatory approach for CKDmanagement and on the details of Stateprograms affecting the management andbeneficial use of CKD. Both APCA’sproposed CKD management standardsthat were submitted to the Agency aspart of the proposed enforceableagreement, and a full description ofAPCA’s State-based approach areavailable in the RIC in support of thisrule.20

B. Memorandum of UnderstandingAnother option considered by the

Agency, in lieu of a detailed regulatoryscheme, would be to enter into amemorandum of understanding (MOU)with the cement industry. As withenforceable agreements, a MOU wouldinclude specific standards for themanagement of CKD. This approach isnot unprecedented.

In January 1994, EPA and theAmerican Forest and Paper Association(AF&PA) negotiated a MOU regardingthe implementation of land applicationagreements among AF&PA member pulpand paper mills and the EPA.21 Thepurpose of the MOU was to develop astewardship program for the practice ofland application of pulp and paper millsludges. Each paper mill participating inthe program signed a ‘‘Land ApplicationAgreement’’ which establishedstandards and land managementpractices for the mill’s land applicationof sludge. The MOU also provided forannual materials monitoring reports tobe submitted to EPA, AF&PA memberoutreach programs, and annual AF&PAmember surveys. The individual ‘‘LandApplication Agreements’’ specify,among other things, dioxin/furanconcentration limits for land appliedsludge and receiving soils, applicationrates, waste testing requirements, andrecordkeeping and reportingrequirements. MOU and ‘‘LandApplication Agreements’’ do not



provide for enforcement, includingcitizen suits. Moreover, EPA, to date,has not formally assessed the success ofthe Agreements.

The Agency could consider a similarapproach to tailored managementstandards and for monitoring themanagement of CKD. The Agencysolicits comments on the advantagesand disadvantages of a program utilizingeither an enforceable agreement, whichis discussed above in Section III.A.—State-Based Approach, or memorandumof understanding to encourageenvironmentally-sound CKDmanagement practices.

C. Two-Dust ApproachIn meetings with EPA staff, the Non-

Hazwaste Burner CKD Coalition(NHBCC) has argued that any proposedregulatory mechanism for CKD, shoulddistinguish between CKD from kilnsthat burn conventional fossil fuels (non-hazardous waste burner CKD) and CKDfrom kilns that burn RCRA hazardouswaste, both in oversight mechanismsand in the contents of any minimummanagement practices. The NHBCC hasargued that EPA should reimpose theBevill exclusion for non-hazardouswaste burner CKD, supplemented wherenecessary and justified by anappropriate voluntary program ordiscretionary steps by the States.According to the NHBCC, EPA shouldregulate hazardous waste burner CKD inthe least burdensome manner consistentwith any relevant risks that the dustmay present.

The NHBCC has cited several pointsin support of a two-dust approach. First,the NHBCC has argued that lessstringent treatment for non-hazardouswaste burner CKD is justified on thebasis of new CKD waste characteristicsdata which shows low risk (see SectionII.C.4.c.—New Waste CharacteristicsData, above). Second, the NHBCC statesthat unit costs of managing stockpiledCKD would increase to prohibitivelevels for some member companieswhich are small businesses as definedby the Small Business Administration.According to the NHBCC, these smallbusinesses do not have any additionalrevenue streams, unlike cementfacilities that burn RCRA hazardouswastes, to offset the additional costs ofCKD management. Third, the NHBCChas expressed concern that Federalregulation of CKD under RCRA SubtitleC will discourage beneficial re-use bystigmatizing CKD as a hazardous waste.The NHBCC claims that such regulationwould undermine public confidence inCKD as a material suitable for reuse,discourage the development of newmarkets for CKD waste, and force up

compliance costs by compellingfacilities which currently sell CKD tostockpile it instead. EPA solicitscomment on the NHBCC’s proposedtwo-dust approach and requestsadditional data on hazardous wasteburner and non-hazardous waste burnerCKD. If new information warrants suchaction, the Agency would re-evaluate itscurrent position on the appropriatelevels of control for hazardous wasteburner and non-hazardous waste burnerCKD.

D. Develop Regulations Under Authorityof Subtitle D

Another option would be to issuestandards such as those described intoday’s Notice solely as RCRA SubtitleD requirements, relying on authority inRCRA section 4004(a). Under thisapproach the standards would beenforceable by the public throughcitizen suits. EPA would additionallyencourage States to adopt standardsdeveloped under Subtitle D asenforceable standards under State law,but the Agency could not compel themto do so. Such standards would not bedirectly enforceable by EPA under theenforcement authorities of sections 3007and 3008. EPA could take enforcementaction under section 7003, if there is afinding of substantial endangerment. Incontrast, the Agency is today proposinga regulatory structure that wouldprovide the opportunity for Federalenforcement against major violations ofthe proposed standards, wherewarranted (see § 261.4(b)(8)(ii)(A)). TheAgency solicits comment on issuingtoday’s proposed standards solely asRCRA Subtitle D requirements andviews on the need for Federalenforcement of major violations of theproposed standards.

E. Subtitle C Enforcement WithoutListing CKD

APCA has suggested that EPA couldadequately regulate CKD not managedin accordance with today’s proposedPart 259 standards using RCRAenforcement authorities without havingto identify the mismanaged CKD as aRCRA hazardous waste. APCA assertsthat as long as EPA specified that aviolation of the Subtitle C backupstandards in Part 266 constitutes a‘‘violation of the requirements of RCRASubtitle C,’’ then EPA and citizenscould enforce against those violationsunder RCRA sections 3008(a) and7002(a) respectively. Similarly, APCAasserts that EPA could enforce againstviolations under RCRA section3008(d)(3) criminal enforcementauthority. APCA’s approach is morespecifically set forth in a letter to EPA

dated August 24, 1998, and is availablein the RIC docket for this rule. EPAinvites comment on APCA’s approach.

F. Tailored Standards Under Subtitle CAnother option available to the

Agency is to regulate all CKD underauthority of Subtitle C, using thetailored standards proposed today (i.e.,the standards that would apply to CKDwhich, under today’s proposal, wouldbecome hazardous waste because it isbeing improperly managed). Under thisapproach, all CKD would be listedhazardous waste and would beregulated under the tailored standardsproposed today in Part 266 whichincorporates the standards proposedtoday in Part 259.

The Agency solicits comment on theoption of regulating all CKD underauthority of RCRA Subtitle C andwhether certain provisions could beeliminated or whether additionalprovisions are needed.

G. States Adopt Appropriate ProgramsAlternatively, States may come forth

with appropriate programs for managingCKD. Such programs would haverequirements similar to those listed inSections IV., V., and VI. of today’sproposal, and include standards foraddressing risks posed by fugitive CKD,standards for addressing risks to groundwater, standards for agricultural use ofCKD, and requirements for monitoring,reporting, and corrective action. TheAgency believes there may be no needto finalize a Federal program if Stateswith cement facilities that dispose CKDadopt appropriate programs andstandards for managing CKD. TheAgency solicits comment on the optionpresented in this paragraph of Statesadopting appropriate programs.

H. Today’s Approach—ExcludeProperly Managed CKD FromHazardous Waste Listing

1. Develop Management Standards andExempt Properly Managed CKD FromClassification as a Hazardous Waste(Management-based Listing)

Today’s proposed rule would regulateCKD under RCRA to address theconcerns identified in the RTC whileavoiding unnecessary requirements. Theapproach taken is to establishmanagement standards for CKD andmake it clear that all CKD managed inaccordance with those standards is notclassified as a hazardous waste. CKD notmanaged in accordance with thestandards, on the other hand, isproposed to be listed as a hazardouswaste under 40 CFR 261.11.

The concept of regulating a waste if itfails to meet certain standards forms the



22 See 60 FR 57747, November 20, 1995,Hazardous Waste Management System;Identification and Listing of Hazardous Waste;Petroleum Refining process Wastes; Land DisposalRestrictions for Newly Identified Wastes; andCERCLA Hazardous Substance Desigination andReportable Quantities.

23 See 62 FR 6621, February 12, 1997, MilitaryMunitions Rule; Hazardous Waste Identificationand Management; Explosives Emergencies; ManifestExemption for Transport of Hazardous Waste onRight-of-Ways and Contiguous Properties; FinalRule.

24 Supporting documentation for these costanalyses can be found in the Technical BackgroundDocument: Data and Analyses Addressing the Costsof CKD Management Alternatives, RIC Docket Nos.F–94–RC2A–S0018 and S0018.A),

basis of many RCRA regulations. Toprovide added flexibility forimplementation, EPA has previouslyproposed options for conditionalexemptions from Subtitle C regulationfor certain refining wastes,22 andpromulgated conditional exemptions fornon-chemical military munitions.23

Today’s proposed rule would limitregulation of CKD under Subtitle C tothat CKD which is mismanaged.

The DC Circuit Court of Appeals hasexpressly upheld EPA’s authority underRCRA to establish a conditionalexemption from Subtitle C regulation forwastes that, absent the exemption,would be hazardous (see Military ToxicsProject v. EPA, 146 F. 3rd. 948, D.C. Cir.1998). For a more detailed discussion ofEPA’s authority to establish aconditional exemption from Subtitle Cregulation, see the discussion at 62 FR6636–6637 of the Military MunitionsRule preamble.

Accordingly, EPA is today proposingto: (1) establish standards that defineproper management of CKD waste; (2)exempt from classification as hazardouswaste all CKD managed in accordancewith specific standards proposed today;(3) list mismanaged CKD as a hazardouswaste based on the criteria defined at 40CFR 261.11(a)(3)(i–xi); and (4) providetailored standards under Subtitle C forthe proper management of CKD that hasbeen mismanaged. The Agency’sevaluation of mismanaged CKD againstthe listing criteria in § 261.11(a)(3) canbe found in Appendix I of thispreamble, while the associatedevaluation of reportable quantities forreleases of CKD can be found inAppendix II of this preamble. Under theproposed approach, CKD would onlybecome hazardous waste subject toRCRA Subtitle C regulation whenpersons managing the waste commitegregious or repeated violations, such asfailing to install controls designed tomeet the performance standards, orfailing to manage CKD in units thatconform to specific default technology-based standards. CKD managed inaccordance with today’s proposedstandards would be outside the scope ofSubtitle C, and would not be consideredhazardous waste. The Agency believes

the CKD management standardsproposed today will protect the publicfrom human health risks and preventenvironmental damage resulting fromcurrent CKD disposal practices. Thestandards are designed to preventcontamination of ground water andpotable water supplies, and preventhuman health risks from inhalation ofairborne CKD and ingestion via foodchain pathways.

In developing the proposedmanagement standards for cement kilndust, EPA considered several factors.First, and primarily, the Agencybelieves that subjecting waste CKD tothe full RCRA Subtitle C program, whileprotective, would be prohibitivelyburdensome on the cement industry,and is not a feasible regulatory optionunder the factors cited in RCRA section8002(o). The full Subtitle C regulatoryprogram would be highly prescriptiveand provides little tailoring for sitespecific conditions. Second, the CKDmanagement standards proposed todayare based on EPA’s current knowledgeof the cement industry and the humanhealth and environmental risks posedby CKD. The Agency considers thesetechnical standards to be sufficient tocontrol the specific risks identifiedwhile eliminating unnecessarycompliance costs. EPA believes that forCKD, imposing the additionalrequirements of full Subtitle C wouldadd significantly to compliance costswithout a reduction in risks (see theRegulatory Determination for CKD:Potential Costs and Impacts of SubtitleC Regulation, 60 FR 7371, February 7,1995).24 Third, the Agency desires toencourage the common industrypractice of recycling of CKD waste backinto the industrial process, and promoteenvironmentally sound off-sitebeneficial use of this material. Mostcurrent off-site uses, such as for wastestabilization or general construction, areeither currently regulated (under RCRAfor hazardous waste stabilization, orunder the Clean Water Act in the caseof municipal sewage sludge) or appearto present low risk due to low exposurepotential. Classifying all CKD ashazardous could prevent such usesbecause of the expense resulting fromhazardous waste managementrequirements.

EPA emphasizes, however, that ifpersons mismanage CKD waste,depending on the nature in which it ismismanaged, the non-compliant wastemay become subject to Subtitle C

requirements which would includeenforcement action for violations of theproposed management standards (seeSection V. B.—Implementation of Part259 and RCRA Subtitle C BackupStandards). The Subtitle C requirementsapplicable to such CKD would to someextent be tailored as appropriate toensure proper management of CKD. Forexample, the proposed Subtitle C designrequirements for CKD landfills aredifferent from those under the generally-applicable Subtitle C regulations.However, other generally-applicableRCRA requirements would apply topersons managing listed CKD ashazardous waste. In particular, personsmanaging listed CKD would be requiredto obtain permits if they treat, store ordispose of hazardous CKD, and tomanifest shipments of hazardous CKD.Certain generally applicable RCRArequirements would not be applied tohazardous CKD, under the authority ofsection 3004(x) of RCRA. These includeland disposal restrictions, minimumtechnology requirements, and facility-wide corrective action requirements.

2. Alternative Management-BasedListing

Another approach EPA consideredwould be to list as a hazardous wasteonly CKD that is managed according tospecific practices that are known to posesignificant risks to human health andthe environment. For example, themanagement of CKD in unlinedlandfills, under water or in directcontact with the ground-water table,without fugitive dust controls, or whenused for agricultural purposes withoutproper controls, is likely to posesignificant risks to human health andthe environment. Under this approach,CKD mismanaged in these specifiedways would be listed as hazardouswaste. One disadvantage to thisapproach is that while it may preventthose poor management practicesidentified by the Agency at this time,such a listing would require the Agencyto anticipate and identify all possibleways that CKD could be mismanaged.The Agency requests comments on theadvantages or disadvantages of thisapproach over the approach proposedtoday, including comment on additionalmismanagement practices that shouldbe identified and considered if such anapproach were adopted.

3. Characteristic CKDCKD rarely exhibits a hazardous

characteristic. Under the rule proposedtoday, characteristic CKD would, inmost cases, be regulated in the samemanner as other CKD. That is, it wouldbe exempt from the definition of



25 Detailed writeups for each of the 13 ground-water damage cases can be found in Chapter 5 ofthe RTC, the Technical BackgroundDocument:Additional Documented and PotentialDamages from the Management of Cement Kiln Dust(F–94–RC1A–S0003 to S0015); and the TechnicalBackground Document. Additional DocumentedDamages to Ground Water From the Management ofcement Kiln Dust, which has been placed in the RICdocket in support of this proposed rule.

‘‘hazardous waste’’ so long as it ismanaged in accordance with thespecified standards; if not so managed,as described above, it would be subjectto tailored Subtitle C requirements. Thesole exception to this approach wouldbe for CKD from kilns that burnhazardous waste as fuel, which wouldbe subject to full (not tailored) SubtitleC requirements if it fails the two-parttest in the Boiler and Industrial FurnaceRule (a prime component being acomparison to hazardous characteristiccriteria for metals). This approachmaintains in place the rules for CKDfrom hazardous waste burners that existcurrently under 40 CFR 266.112.

4. Apply Tailored RCRA Subtitle CStandards to Improperly Managed CKD

As described previously, CKD that hasbeen determined to be improperlymanaged and no longer a non-hazardouswaste would be subject to Subtitle Cstandards that are tailored to address therisks presented by CKD. Themanagement standards applicable tosuch CKD would be promulgated underEPA’s general authority for settingmanagement requirements forhazardous waste under sections2002(a)(1), 3002, 3003, and 3004 ofRCRA.

Subtitle C requirements that apply tohazardous waste generally, and are notexpressly modified in these tailoredstandards, would apply to CKD orfacilities managing CKD. For example, ifa person managing CKD waste disposesof non-exempt CKD onsite, she or hewould be required to obtain a RCRApermit. However, EPA has authorityunder section 3004(x) of RCRA to altercertain statutory requirements thatwould otherwise apply to all hazardouswaste facilities, for wastes previouslysubject to the Bevill exclusion andnewly being brought under Subtitle Cregulation. In particular, EPA hasauthority to modify requirementsrelating to land disposal restrictions,minimum technology for landfill design,and facility-wide corrective action. EPAwould rely on this authority to exemptCKD from land disposal restrictions,minimum technology requirements, andfacility-wide corrective actionrequirements as we are proposing today.A more detailed discussion of thereasons for this approach under sectionsection 3004(x) can be found in SectionV.A.1.–3004(x)—Special Characteristics.

IV. Proposed Management StandardsA key element of the regulatory

system for CKD described above is thestandards to be established for CKDmanagement. As discussed above, aslong as CKD is managed according to

these standards, it would remain a non-hazardous waste. Furthermore,compliance with these standards wouldbe required under the tailored RCRASubtitle C requirements applicable toany CKD that is mismanaged.

Because these standards are acondition for maintaining non-hazardous status, EPA proposes topromulgate them at 40 CFR Part 259,separate from the regulations governinghazardous waste. The tailored RCRASubtitle C regulations for hazardousCKD waste are proposed to bepromulgated in 40 CFR Part 266; thoseregulations will incorporate the Part 259proposed standards by reference, inaddition to identifying the other SubtitleC requirements applicable to hazardousCKD.

A. Protection of Ground-WaterResources

1. The Need for Ground-WaterProtection Standards

As tabulated in the backgrounddocument for today’s proposed ruletitled Technical Background Documenton Ground Water Controls at CKDLandfills, EPA has identified 13 cases ofground water damage resulting from themigration of potentially hazardousconstituents, including metals, fromwaste CKD.25 These damages reflectCKD management practices from 1980to 1995 at cement facilities across theUnited States. While the Agencyacknowledges that CKD managementpractices may have changed atindividual cement manufacturing sites,EPA believes certain practices whichhave led to damages to ground andsurface waters have not stopped andoccur today at other cementmanufacturing facilities nation-wide.

The Agency considers damage tomean that metal constituents havecontaminated ground water and/orsurface water above a Federal or Statestandard (e.g., a maximumconcentration limit). Constituents ofconcern from CKD that have beenreleased to ground and surface watersinclude arsenic, chromium, and lead,among others. When ground-waterexceedances do occur, the magnitude ofthe exceedance is usually within twoorders of magnitude of the standard.Environmental damage generally affects

the area in the immediate vicinity of thewaste disposal site. Environmentaldamage has been identified both atfacilities that burn and those that do notburn RCRA hazardous wastes.

As documented in Table 2–1 of thetechnical background document onground water controls, the Agency findsthat many factors have contributed tocausing the release of CKD constituentsto ground water or the subsurfaceenvironment at these damage case sites.Factors which are noted to havecontributed to the release of CKDconstituents into the sub-surfaceenvironment include: (1) CKD disposalbelow the natural water table or ground-water infiltration into the waste unit; (2)the lack of a bottom liner or leachatecollection system, or both, to controlleakage from the waste unit; (3) surfacerun-off or erosion transporting CKDconstituents to surface water bodiesand/or wetlands which can serve as asource of ground-water recharge; (4) thelack of an impermeable cover to controlpercolation of rain water and/or surfacewater run-off into the waste unit; and (5)the presence of a shallow ground-waterflow system with conduit flowcharacteristics (e.g., karst aquifer orfractured bedrock aquifer). Notably, allof the damage cases are associated withCKD waste disposal units which did nothave bottom liners, leachate collectionsystems, or impermeable covers in placeduring the active disposal period.

The cement industry, because it useslimestone, has a relatively highpercentage of CKD disposal sites locatedin potential karst areas that is uniquecompared to other industries the EPAregulates. The Agency estimates that 78out of 110 plants are underlain bylimestone formations in areas ofpotential karst terrain. Based onadditional analysis performed insupport of today’s proposed rule whichis documented in the technicalbackground document on ground watercontrols, the Agency has increased theestimate of the percentage of cementplant sites located in potential karstareas from about half to 71%.

The Agency believes these limestoneformations may have conduits withhydraulic characteristics that potentiallyallow leachate to rapidly enter ground-water aquifers directly withoutsubstantial dilution or attenuation. Asdocumented in the technical reportsupporting this rule titled Cement KilnDust Migration Pathway, modelingresults for one CKD disposal site(Facility A) did not predictbreakthrough of contaminants into theground-water table within 130 years,even under highly alkaline conditions.Ground-water and surface water



releases, however, which are describedin the technical background documentfor this proposed rule titled AdditionalDocumented Damages to Ground WaterFrom the Management of Cement KilnDust, occurred at the same site in 1995,within 30 years of first receipt of waste.The faster ground-water migration timecan be attributed to fractures in thelimestone and an upper perched watertable. These factors were not accountedfor in the Agency’s model, whichassumed laminar ground-water flow ina homogenous granular bedrock. Nordid the Agency’s model account forplacement of CKD in direct contact withground water.

Nine of the 13 cases of groundwaterdamage identified occurred at facilitieslocated in karst terrain. The Agencybelieves the identification of additionaldocumented damage cases furthersupports the qualification, noted in the1995 Regulatory Determination, thatavailable ground-water pathwaymodeling techniques are not applicablein areas of karst terrain. For example, intwo documented damage cases,excessive discharges of CKD-contaminated waters can be attributedto ground-water flow through fracturedbedrock. In another case, CKD disposalin caverns has resulted in the dischargeof contaminated ground water into anearby surface stream. This does notnecessarily mean that ground-watercontamination will occur at all suchcement plants; however, it should beregarded as a significant qualification tothe general findings in the RTC of lowor negligible risk from the ground-waterpathway risk modeling results. Also, asnoted in Section II.C.4.b—AdditionalGround-water Modeling, theconclusions on ground water modelingshould be qualified by the additionalanalysis conducted by the Agency. Inthis analysis, the Agency concluded thatthe typical ions in CKD and the highlyalkaline nature of the leachate are likelyto mobilize metals, including lead,chromium, and beryllium, at levelsgreater than previously predicted. Inaddition to ground-watercontamination, contamination of surfacewater and/or wetlands was alsoidentified as being a concern at twelveof these damage case sites.

At many of these sites, environmentaldamages are persistent and continuing.The identification by the Agency of sixadditional cases of damage since the1995 Regulatory Determinationindicates that damage to ground-waterresources near CKD disposal sites maybe more common than originallythought in 1995. EPA’s latestinformation indicates that remedialmeasures have been initiated at only

seven of the ground-water damage casesites, such as removal of contaminatedmaterials, installation of animpermeable cap, and/or constructionof a seep/ground-water extraction andtreatment system. In two cases, ground-water contamination has been foundthat corroborates the surface waterdamage cases which were reported inthe 1993 RTC and associated NODA.This suggests that, at these CKDdisposal sites, releases of contaminatedwater are pervasive. Many of these siteshave been slow to implement remedialmeasures to control off-site migration ofcontaminants.

The Agency further believes ground-water controls are warranted because ofthe matrix in which constituents ofconcern are bound. As mentioned inSection II.C.4.b. (Additional Ground-water Modeling) of this proposal, morerecent modeling of the highly alkalineconditions shows that, in general, theseconditions increase the likelihood thatsome constituents of concern, includinglead, chromium, and cadmium, may bemore mobile than previouslydemonstrated. Specifically, the Agencyhas noticed enhanced transport andbreakthrough to the water table for thesemetals. These new ground-watermodeling results support the findings ofincreased leachability of toxic metals, asobserved in the damage cases. Asreported in the RTC, the highly alkalinenature of CKD-water mixtures is evidentin TCLP results, which commonly showa resultant pH greater than 10 standardunits, even after adding acid.

Current waste management practicesappear to be inadequate to limit releasesof at least some metal contaminants.According to a survey by APCA of 1995CKD waste management practices, 65%of all respondents indicated that theirlandfills had liners, but only onerespondent (1.5%) used a syntheticliner. Over 60% of respondentsconsidered bedrock or native clay orshale materials to be liners. In 1990,only 17% of all CKD management unitsnation-wide had ground-watermonitoring systems. The AmericanPortland Cement Alliance reports that in1995, 33 out of 94 cementmanufacturing facilities had ‘‘ground-water monitoring systems.’’ EPA,however, could not verify whether themonitoring systems were capable ofcharacterizing ground water beneath theactive CKD management unit(s). EPAbelieves that a substantial portion of thecement industry relies on inadequatemeasures to control the release ofcontaminants to ground water, and thatthese practices have not changedsubstantially or have only marginallyimproved over the past several years.

Finally, as stated in the 1995Regulatory Determination, the Agencybelieves there are no current Federalground-water protection standards thatare adequate to address the risks posedby CKD via the ground-water pathway.The Safe Drinking Water Act (42 U.S.C.300 f–j) protects drinking water bysetting maximum concentration limits(MCLs) for toxic contaminants,including metals. However, drinkingwater standards are only protective atthe point of consumption. Public watersupply wells, however, are protectedthrough the wellhead protectionprogram under the SDWA (41 U.S.C.300h–7(e)).

2. ApplicabilityEPA is concerned that today’s

proposal might create an incentive forpersons managing CKD waste to createunneeded ‘‘units’’ or unnecessarily largeunits prior to the effective date of thefinal rule so that such units would bedeemed ‘‘existing units’’ and not besubject to certain requirements oftoday’s proposed rule. To address thisconcern, today’s proposed definition of‘‘existing unit’’ specifies that expansionswould have to be consistent with pastoperating practices, or operatingpractices modified to ensure goodmanagement. The Agency believes thisadded provision ensures that personsmanaging CKD waste will not createnew units or unnecessarily enlarge theirexisting units to avoid compliance withportions of today’s proposed rule, but atthe same time, accounts for legitimatelandfill enlargements or changes infacility operations resulting fromadditional waste volumes. EPA solicitscomment on whether today’s proposedregulatory distinction between lateraland vertical expansions wouldencourage owners and operators toexpand existing landfills laterally priorto the effective date of the final rule toavoid meeting the requirementsapplicable to new units. EPA isproposing ground-water protectionstandards for all new and existing CKDwaste landfill units, except units closedprior to the effective date of the rule.Today’s proposed performance andtechnology-based standards wouldapply to new units, and any expansionof an existing CKD landfill unit, definedas any lateral expansion of the wasteboundary of an existing landfill unit.Any lateral expansion would beconsidered a new unit and must meetthe requirements applicable to newunits. In contrast, any verticalexpansion of an existing unit would beconsidered part of the existing unit andsubject only to those requirementsapplicable to existing units. Under this



26 To determine whether a CKD landfill unit is inthe 100-year floodplain persons managing CKDwaste should use flood insurance rate maps(FIRMS) developed by the Federal EmergencyManagement Agency.

27 For purposes of this section, wetlands meansthose areas defined by 40 CFR 232.2(r): ‘‘* * *areas that are inundated or saturated by surface orground water at a frequency and duration sufficientto support, and that under normal circumstances dosupport, a prevalence of vegetation typicallyadapted for life in saturated soil conditions.Wetlands generally include swamps, marshes, bogs,and similar areas.’’

proposed definition, any new area ofany existing unit that receives wasteafter the effective date of this rule is anexpansion. All new and existing CKDlandfill units (i.e., the existing landfillplus any expansion) must comply withground-water monitoring and correctiveaction requirements proposed in today’srule.

With regard to surfaceimpoundments, the Agency has foundfew facilities that engage in this CKDmanagement practice. EPA solicitscomment on whether wet handling ofCKD in surface impoundments can beconducted in a manner that meets theperformance standards contained intoday’s proposed rule. EPA continues totake the position that placement of CKDin a surface impoundment that is indirect contact with the ground-watertable would not be protective of humanhealth and the environment.

3. Location Standards

One set of standards for ground-waterprotection relates to facility location.EPA has identified locations that requirespecial restrictions and may influencethe location of landfills: sites below thenatural water table, floodplains,wetlands, fault areas, seismic impactzones and unstable areas, particularlyunstable areas in karst terrain. For otherwastes, such as municipal solid wastes,the Agency has viewed these locationsas needing special protection (see 53 FR33314, August 30, 1988). Accordingly,EPA is proposing to impose locationstandards for CKD disposal sites toensure protectiveness in the areasdescribed above. With one exceptionwhich prohibits CKD disposal below thenatural water table, the Agency is notproposing an absolute prohibitionagainst siting CKD landfills at theselocations; however, persons managingCKD waste would have to make ashowing to the EPA RegionalAdministrator (or the State, inauthorized States), on a case-by-casebasis that their design is protective inthese environments.

a. Disposal Below the Natural WaterTable

Today’s proposed rule includes a banon management of CKD in new unitslocated below the natural water table.The natural water table is defined as thenatural level at which water stands in ashallow ground-water well open alongits length and penetrating the surficialdeposits just deeply enough toencounter standing water at the bottom.This level is uninfluenced by ground-water pumping or other engineeredactivities.

EPA believes that this stringentrestriction is necessary to protect humanhealth and the environment because ofthe potential damage caused bymanagement of CKD at sites locatedbelow the natural water table. TheReport to Congress, subsequentRegulatory Determination, andbackground documents to this proposedrule all describe damages to groundwater and surface water resulting frommanagement of CKD at sites (e.g.,quarries) that subsequently filled withwater after abandonment. As mentionedabove, two of these sites were oncelisted on the NPL. In the RegulatoryDetermination, the Agency alsoidentified surface water damagesresulting from problems with run-onand run-off, but deferred to itsauthorities under the Clean Water Act tocontrol surface water problems.

b. FloodplainsEPA is proposing that new and

existing CKD landfill units may not belocated in a 100-year floodplain unlessa demonstration is made to the EPARegional Administrator (or the State, inauthorized States), that the landfill hasbeen designed so that it does not restrictflow of the 100-year flood, reduce thetemporary water storage capacity of thefloodplain, or result in the washout ofsolid waste so as to pose a hazard tohuman health and the environment. TheAgency’s rationale today is consistentwith the similar rule regardingmunicipal solid waste landfill units(MSWLFs) (see 53 FR 33314, August 30,1988). Specifically, floodplains may beadversely impacted by the disposal ofsolid waste through potential floodingdamages including: (1) Rapid transportof hazardous constituents by flood waterresulting in degradation of water qualitydownstream; (2) restriction of floodwater flow, causing greater floodingupstream; and (3) reduction of thestorage capacity of the floodplain,which may cause more rapid movementof flood water downstream, resulting inhigher flood levels and greater flooddamages downstream.

Today’s proposal would require thatnew and existing CKD landfill unitslocated in a 100-year floodplain bedesigned and operated to prevent theadverse effects described above. Theintent of today’s proposed rule is torequire that CKD landfill units not causesignificant impacts on the flow andwater storage capacity of a floodplainexperiencing a 100-year flood. Site-specific information should be used toevaluate whether a facility has met thisstandard.

Today’s proposal defines thefloodplain using the 100-year flood

level.26 This criterion would limit thechance for site inundation and resultingdamages. The intent of this criterion is:(1) To require an assessment of any newor existing CKD disposal site orexpansion of any existing site in afloodplain to determine the potentialimpact of the disposal site ondownstream and upstream waters andland; (2) to prohibit such disposalactivities if the site, as designed, maycause increased flooding during the 100-year flood; and (3) to require, if thedisposal site is located in a floodplain,the use of available technologies andmethods to protect against inundationby the base flood, and minimize thepotential for adverse effects on waterquality and on the flood-flow capacityof the floodplain.

c. WetlandsToday’s proposal provides that no

new CKD landfill unit may be placed inwetlands,27 unless the person managingCKD waste makes a specificdemonstration to the EPA RegionalAdministrator (or the State, inauthorized States), that the new unit: (1)will not result in ‘‘significantdegradation’’ of the wetland as definedin the Clean Water Act section 404(b)(1)guidelines, published at 40 CFR Part230; and (2) will meet otherrequirements derived from the section404(b)(1) guidelines. Existing disposalunits, including vertical expansions thatare located in wetlands would continueto operate.

EPA believes that these restrictionsare necessary to protect human healthand the environment because of thespecial environmental significance ofwetlands and the potential damagecaused from siting CKD landfill units inwetlands. The 1993 Report to Congressand associated background documentsdescribe the environmental damage thatresults by siting CKD landfill unitsadjacent to wetlands. One case studydescribes releases of toxic metals inexcess of State standards for warmwaterwildlife habitats, which potentiallycould damage the ecological integrity ofwetlands adjacent to the CKD disposalsite. Another case study describes



28 A fault is defined as a fracture or a zone offractures in any material along which strata on oneside has been displeased relative to strata on theother side. See United States Geological Survey,1978, Preliminary Young Fault Maps,Miscellaneous Field Investigation (MF) 916.

environmental releases of toxic metalsinto the nearshore waters of LakeHuron, which have filled in emergentwetlands and damaged sensitive aquatichabitats. Today’s proposed rule wouldminimize wetland degradation by newCKD landfill units and expansions byallowing siting in wetlands only incases where protective unit design hasbeen demonstrated.

Today’s proposed rule adopts fourmajor requirements: (1) A practicalalternatives test (§ 230.10(a)); (2) theassessment of compliance with otherapplicable laws (§ 230.10(b)); (3) theassessment of aquatic degradation(§ 230.10(c)); and (4) the assessment ofsteps taken to minimize the adverseeffects of discharge (§ 230.10(d)). Theserequirements parallel those in theguidelines for wetlands protectionunder section 404(b)(1) of the CleanWater Act. The guiding principle is thatdischarges should not be allowed unlessthe persons managing CKD waste candemonstrate that such discharges areunavoidable and will not cause orcontribute to significant degradation ofwetlands.

Accordingly, to satisfy the fourrequirements mentioned above, before aCKD landfill unit may be sited in awetland the persons managing CKDwaste must make the following fivedemonstrations to the RegionalAdministrator (or the State inauthorized States). First, alternativesites for the proposed landfill which arelocated outside of wetlands must beconsidered. An alternative site isdefined as one which does not involvewetlands. For a person managing CKDwaste to site a CKD landfill in awetland, he must clearly rebut thepresumption that a practical alternativeis available. Second, a demonstrationmust be made that siting in a wetlanddoes not violate any of the provisions ofthe following applicable laws: (1) Anyapplicable State water quality standard;(2) any applicable toxic effluentstandard under section 307 of the CleanWater Act; (3) the Endangered SpeciesAct of 1973; and (4) the MarineProtection, Research, and SanctuariesAct of 1972. Third, a demonstrationmust be made that siting the landfill ina wetland will not cause or contributeto significant degradation of wetlands.Fourth, if siting in a wetland is stillconsidered after the first threedemonstrations discussed above, thenan additional demonstration must bemade that appropriate and practicalsteps have been taken to minimize thepotential for adverse effects of thelandfill on wetlands. Finally, it must beshown that sufficient information isavailable for making reasonable

determinations with respect to thesedemonstrations; otherwise, the personmanaging CKD waste cannot make thedemonstrations necessary to qualify forthe waiver to the ban. In today’sproposed rule, EPA has not set astructure or time frame for approval bythe EPA Regional Administrator (or theState in authorized States), in order togive the regulatory authority maximumflexibility in setting schedules.

Today’s proposed rule addresses onlyRCRA requirements. Nothing in today’sproposed rule affects any requirementsthat facilities may have to comply withunder other programs, such as section404 of the Clean Water Act whichaffects disposal in wetlands.

d. Fault AreasEPA proposes today that no new CKD

landfill units may be sited within 60meters (200 feet) of a fault that has haddisplacement in Holocene time, unlessa demonstration is made to the EPARegional Administrator (or the State, inauthorized States), that an alternativesetback distance of less than 60 meterswill prevent damage to the structuralintegrity of the CKD landfill unit, andwill be protective of human health andthe environment. The Holocene is themost recent epoch of the QuaternaryPeriod, a period of geologic time thatextends from the end of the PleistoceneEpoch to the present and includesapproximately the last 10,000 years.Regional geologic maps of Holocene agefaults are published by the U.S.Geological Survey. EPA believes thatmotion along faults may adversely affectthe structural integrity of CKD landfillunits, and that a 60-meter buffer zone isnecessary to protect engineeredstructures from seismic damages.28

Earthquakes present a threat to publicsafety and welfare in a significantportion of the United States. Damageand loss of life in earthquakes occur asa result of surface displacement alongfaults and ground motion, as well assecondary effects of the shaking such asground or soil failure. Faults alsopresent concerns relating to failure ofcontainment structures for CKDlandfills. Today’s proposed standard isdesigned to protect CKD landfill unitsfrom deformation (i.e., bending andwarping of the earth’s surface) anddisplacement (i.e., the relativemovement of any two sides of a faultmeasured in any direction) of the earth’ssurface that occur when a fault moves.

Available information collected insupport of the MSWLF rule suggeststhat structural damage resulting fromearthquakes is most severe for structureslocated within 60 meters of the faulttrace, and decreases with increasingdistance away from the fault. However,EPA believes that for some geologicformations the 60 meter setbackdistance may be overprotective.Therefore, the Agency has allowed intoday’s proposed rule the opportunityfor demonstrations to be made to theEPA Regional Administrator (or theState, in authorized States), that analternative setback distance of less than60 meters will prevent damage to thestructural integrity of the CKD landfillunit. The Agency requests comment onboth the general concept of a locationrestriction based on fault areas and thespecific 60-meter setback requirement.

e. Seismic Impact ZonesToday’s proposal would require that

any new CKD landfill unit located in aseismic impact zone be designed toresist the maximum horizontalacceleration in lithified material for thesite. The design features affectedinclude all containment structures (i.e.,liners, leachate collection systems, andsurface water control systems). Seismicimpact zones are defined as areashaving a ten percent or greaterprobability that the maximum expectedhorizontal acceleration in lithifiedmaterial for the site, expressed as apercentage of the Earth’s gravitationalpull (g), will exceed 0.10g (i.e., 98.0centimeters per second per second) in250 years. The term ‘‘lithified material’’refers to any consolidated or coherent,relatively hard, naturally occurringaggregate composed of one or moreminerals (e.g., granite, shale, marble,sandstone, limestone, etc.). Thisdefinition explicitly excludes loose,incoherent masses such as soils orregolith, and man-made materials suchas fill, concrete or asphalt. EPA’srationale today is consistent with thesimilar rule regulating MSWLFs, andthe Agency solicits comment regardingwhether it is appropriate to use thesame approach for CKDLFs.

EPA believes that the adverse impactof siting CKD landfill units in seismicareas justifies the need for acomprehensive standard to preventreleases from these facilities. Types offailure that may result from groundmotion are: (1) Failure of structuresfrom ground shaking; (2) failure ofcontainment structures due to soilliquefaction, liquefaction-inducedsettlement and landsliding, and soilslope failure in foundations andembankments; and (3) landsliding and



29 See Livermore Associated Research Group, Inc.1982. Seismic Location Standards. Prepared for U.S.Environmental Protection Agency, Office of SolidWaste, Washington, D.C.

30 To determine whether a CKD landfill unit is ina seismic zone, persons managing CKD wasteshould look at maps depiciting the potentialseismic activity across the United States that havebeen prepared by the United States GeologicalSurvey (Open File Report 82–1033).

31 Darcian flow means ground-water flow whichfollows Darcy’s law, where the specific discharge isproportional to the hydraulic gradient. Darcianground-water flow is typically linear and laminar,travels from 1 × 10¥11 to 1 × 102 centimeters persecond, and is characteristic of ground-water flowthrough granular porous media.

collapse of surrounding structures.29

The background document supportingthis section of the rule providesexamples of the potential adverse effectson CKD landfill units that may occur inseismic impact zones. The Agencybelieves that these failures may result incontamination of air, ground water,surface water and soil. Therefore, inorder to protect human health and theenvironment, all containment structuresmust be designed to withstand thestresses created by peak groundacceleration at the site from themaximum earthquake based on regionalstudies and site-specific analyses.30

The process designing earthquake-resistant components may be dividedinto three steps: (1) Determiningexpected peak ground acceleration atthe site due to a maximum quake, basedon regional studies and site-specificseismic risk analysis; (2) determiningsite-specific seismic hazards (e.g., soilliquefaction); and (3) designing thefacility to withstand peak groundaccelerations. Various methods foraccomplishing the above tasksappropriate to individual CKD landfillunits should be selected by the personmanaging CKD waste, subject toregulatory agency approval.

f. Unstable AreasEPA is also proposing that persons

managing CKD waste in new andexisting CKD landfill units located inunstable areas must demonstrate thestructural integrity of the unit to theEPA Regional Administrator (or theState, in authorized States). Thisdemonstration must show thatengineering measures have beenincorporated into the unit’s design tomitigate the potential adverse structuralimpacts on the structural components ofthe unit that may result fromsubsidence, slope failure, or other massmovements in unstable areas. Forpurposes of this section, structuralcomponents include liners, leachatecollection systems, and final covers.

EPA is particularly concerned withCKD landfill units located in areas ofkarst terrain. For purposes of thissection, karst terrain means an areawhere karst landscape, with itscharacteristic hydrogeology and/orlandforms is developed. In karst terrain,ground-water flow generally occurs

through an open system with bothdiffuse and conduit flow end membercomponents, and typically has rapidground-water flow velocities whichexceed Darcian flow velocities.31

Composed of limestone, dolomite,gypsum and other soluble rock, karstterrain typically has well developedsecondary porosity enhanced bydissolution. Landforms found in karstterrain include, but are not limited to,sinkholes, sinking streams, caves,springs and blind valleys. Karst terrainsalways include one or more springs foreach ground-water basin, andunderground streams except whereground-water flow is diffuse or the hostrock has megaporosity.

The regulatory definition of karstterrain in today’s proposal expandsbeyond the obvious landform featurestypically associated with mature karsttopography (e.g., sinkholes and caves).Not all waste disposal sites overlyingcarbonate aquifers exhibit maturefeatures of well-developed karst, but,nevertheless, may overlie karst aquiferswith well developed conduit systems inwhich turbulent flow regimes dominate.Karst systems are commonly mantled bythick regolith, or partially covered bycaprock which may exhibit atopography that is not characteristic ofa traditional karst setting. If theregulatory definition of karst reliessolely on apparent karst landformfeatures, persons managing CKD wasteat facilities situated in karst settingswith no apparent on-site karst featurescould claim that their facilities are notin karst terrain and, therefore, do notoverlie a karst aquifer. EPA solicitscomment on today’s proposed definitionof karst terrain and the proposedapproach for identifying karst hydrologywithin and around facility property.

The fundamental hydrologicdifference between karst and non-karstterrain is ground-water flow velocity inexcess of velocities that are typical ofporous media (i.e., Darcian flowvelocities). A well developed karstaquifer usually has a ground-water flowvelocity orders of magnitude greaterthan a porous media aquifer. The mostimportant aspect of open karst systemsis that the dominant basin-widecomponent is rapid turbulent ground-water movement, that is non-Darcianflow, through conduits to one or moresprings that can vary in magnitudebased on the size of the basin and

seasonable ground-water conditions.The magnitude of the springs are largelya function of the size of the ground-water basin and aquifer recharge.

Accordingly, before a CKD landfillunit can be sited in a potential karstterrain, a person managing CKD wastemust first verify and certify that thefacility is situated in a karst terrainbased on the revised definition of karstterrain pursuant to § 259.16(b)(1).Today’s rule proposes that prior toconstruction of a CKD landfill incarbonate terrain, a karst ground-waterinvestigation must be conducted todefine the direction of ground-waterflow, and points of discharge for thekarst ground-water basin(s) the facilitymay affect. The karst ground-waterinvestigation shall include a dye tracerstudy to identify springs which arehydrologically related to the karstground-water basin potentially affectedby the unit. The verification of a karstterrain may include, but not necessarilybe limited to, a review of the availableliterature. If the literature fails toprovide conclusive evidence that thefacility does not overlie a karst terrain,a basin-wide field study should beimplemented, even if the dischargepoints of the basin exist beyond thefacility boundary, to identify allpotential springs from which groundwater passing beneath the CKD landfillunit may discharge. Certification may beobtained from an independentprofessional ground-water scientist,from the EPA Regional Administrator,or from the State, in authorized States.

After verification, the personmanaging CKD waste must locatebackground and intermediate samplinglocations, and downgradient springs orground-water monitoring wells fordetection monitoring pursuant to§ 259.44(a) and § 259.45(b) forassessment monitoring. The personmanaging CKD waste must establish aground-water monitoring systempursuant to § 259.41(a) that incorporatesspring monitoring. The Agency believesthat this will generally necessitate: (1) afield study to conduct an inventory ofkarst features and locate springs; (2)quantitative tracer studies to verify flowpath, time-of-travel, and duration of thedye plume; (3) the regular monitoring ofchemographs and hydrographs ofsprings and monitoring wells; and (4)the development of a sampling strategybased on the unique fate and transportcharacteristics of the toxic constituentsin CKD and hydrology of the karstaquifer, that is capable of detectingreleases from the CKD landfill unit.

EPA believes it is important toinclude quantitative dye tracer studiesin any analysis of karst in order to



determine the time of travel andduration of the dye plume. Such dataare essential inputs to construction of amodel of contaminant migrationthrough the aquifer. The contaminantmodel is predicated on the dye behavingsimilarly to a contaminant in itsdissolved phase or in suspensionadsorbed to colloids. Information on thetime of travel and duration of the dyeplume would be compared to data fromthe storm hydrograph and chemographto identify optimum sampling intervals.The Agency solicits comments onpractical difficulties with dye studiesand characterizing karst terrain, andwhether there are other alternativeapproaches to ensure protection ofhuman health and the environment.

Some areas of karst terrain may beprone to subsidence because of naturalsubsurface conditions. Limestone anddolomite are slightly soluble in water,and the solution process can enlargeexisting fractures, joints and other voidscreating sinkholes and caves. Potentialcaverns and karst pinnacles in the soiland bedrock may eventually lead tocollapse or puncture of the landfill linerdue to excessive overburden or settling.Accordingly, today’s rule proposes thatthe ground-water investigation shallalso include an inventory of karstfeatures within and around facilityproperty to identify areas prone tosurface subsidence or mass movement.

4. Performance-Based Standard for theProtection of Ground Water

a. Overview

To provide maximum flexibility whileensuring protectiveness, EPA isproposing two types of standardsrelating to groundwater protection: atraditional technology standard,specifying landfill design and othertechnical requirements, and a moreflexible performance-based standard forfacilities that wish to utilize a design ortechnology that they believe will meetthe performance standard. To ensurethat it is complying with the standards,a person managing CKD waste maychoose either to propose an alternativeapproach to the EPA RegionalAdministrator (or the State, inauthorized States), or may implementthe technology standards. EPA mayapprove the alternative if the Agencyconcludes the alternative will meet amore general performance standarddescribed below.

With respect to ground waterprotection, EPA is proposing that theunit design must ensure thatexceedances of a ground-waterprotection standard not occur at therelevant point of compliance. This

standard would apply to the metalconstituents listed in Appendix VIII ofPart 261 (antimony, arsenic, barium,beryllium, cadmium, chromium (total),lead, mercury, selenium, silver, andthallium). For each constituent, thestandard would be as follows: (1) ifavailable, the maximum contaminantlevel (MCL) established under section1412 of the Safe Drinking Water Act (see40 CFR Part 141); (2) for constituentswith concentration levels lower thanbackground, the background level; and(3) for constituents with no MCLs, analternative risk-based number or, (in anunauthorized State) other appropriatelevel established by the EPA RegionalAdministrator. The Agency solicitscomment on the adequacy of usingMCLs to define limits for metals inground water at the point ofcompliance, and whether or not health-based numbers (HBNs) rather thanMCLs should be used as a primarygroundwater protection standard.While, EPA’s Subtitle D groundwaterprotection standards are based on MCLs,the Agency’s hazardous waste listingdeterminations are traditionally basedon HBNs. The primary differencebetween MCLs and HBNs is that HBNsare derived based solely on healtheffects whereas several factors inaddition to health effects are consideredin the development of MCLs.Development of MCLs requires anevaluation of: (1) The availability andcost of analytical methods; (2) theavailability and performance oftechnologies and other factors relative tofeasibility and identifying those that are‘‘best’; and, (3) an assessment of thecosts of the application of technologiesto achieve various concentrations.Therefore, MCLs may be more or lessconservative than HBNs correspondingto the Agency’s hazardous waste listingrisk range of 10E–4 to 10E–6 forcarcinogens and an HQ of 1 for non-carcinogens.

EPA is proposing today that facilitiesthat wish to propose a design to complywith the performance standard mustsubmit a proposed plan to implementthe performance standard for approvalby a regulatory agency. EPA willprovide such oversight in unauthorizedStates. Authorized States, on the otherhand, may be more stringent and are notrequired to adopt today’s proposedperformance standard approach. If aState chooses not to provide suchreview, compliance with the technologystandards would be required (sincethere is no mechanism for approving analternative approach). EPA stronglyurges States to provide the option of aperformance standard. Such a standard

would protect human health and theenvironment and minimize the cost ofcompliance by allowing facilities totailor ground-water controls to site-specific conditions.

b. Performance Standard and the Pointof Compliance

The MCL is the maximum permissiblelevel of a contaminant in water whichis delivered to any user of a publicwater system, and is a standard forevaluating the potability of water. It isthe traditional measure used by theAgency to protect the nation’s publicdrinking water supplies (see 40 CFRParts 141–143 National Drinking WaterRegulations). MCLs would be measuredat the point of compliance (POC),defined as the closest practical distancefrom the unit boundary, or at analternative point chosen by the EPARegional Administrator (or the State, inauthorized States). The alternative POCmust be on facility property and be nomore than 150 meters from the unitboundary. In allowing for an alternativePOC, the Agency’s rationale is to allowgreater flexibility for a State to setdesign requirements based on the site-specific factors (for example, see§ 257.3–4(b)(1)(i) through (vii)).

5. Technology-Based Standards for theProtection of Ground Water

EPA is proposing that design criteriasimilar to those for MSWLFs under theSubtitle D program (Solid WasteDisposal Facility Criteria, 56 FR 50978,October 9, 1991) be adopted withcertain modifications for ground-watermonitoring (see § 259.40) andremediation. For facilities complyingwith the technology-based standards forthe protection of ground water, any newCKD waste management unit or lateralexpansion of an existing unit must beconstructed with a composite liner anda leachate collection and removalsystem (LCS) that is designed andconstructed to maintain less than a 30cm depth of leachate over the liner. Thecomposite liner must consist of twocomponents: an upper flexiblemembrane liner (FML) with a minimumthickness of 30-mil, and a lowercomponent consisting of at least twofeet of compacted clay with a hydraulicconductivity of no more than 1 × 10¥7

cm/sec. In selecting this uniform design,EPA’s goal was to identify one thatwould provide adequate protection inall locations.

The Agency believes the technology-based standards proposed in today’srule will be protective of ground-waterresources. Liners will prevent leachatefrom seeping from the landfill andentering the aquifer. The FML must



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. LehighPortland Cement Company, Alsen Dust DisposalFacility, Closure Certification Report. Prepared forLehigh Portland Cement Company, Cementon Plant,Cementon, New York. See also letter from ThomasM. Polasek, P.E., Michigan Department ofEnvironmental Quality, to Frank Davis, Lafarge

Corporation, re: Consent Judgment Compliance,October 10, 1996.

have a minimum thickness of 30-milsand be installed in direct and uniformcontact with the lower clay componentto ensure adequate liner performance,including being able to withstand thestress of construction (see U.S. EPARREL, Lining of Waste Containment andOther Impoundment Facilities EPA/600/2–88/052. September 1988). Compactedclay liners must be at least two feetthick to ensure a high probability ofhaving a hydraulic conductivity of 1 x10¥7 cm/sec. Functionally, both theFML and lower clay component arenecessary to retard the migration ofcontaminants into the subsoil. The FMLcomponent would provide a highlyimpermeable layer to maximize leachatecollection and removal. The compactedclay liner would adsorb and attenuatepollutants in the event of FML linerfailure.

A LCS is necessary to relieve thehydraulic pressure within the landfillwhich could drive leachate migrationthrough the base of the landfill. LCSdesign normally consists of a permeablematerial placed on a sloping surface soas to allow leachate to be removed andcollected. Large units may also have apipe drainage system. Sloping the LCStowards a sump minimizes anydownward flow, and reduces theamount of leachate leaving the LCS.

The Agency seeks comments on theeffectiveness of various linerthicknesses and materials in preventingthe migration of the hazardousconstituents of CKD to groundwater. Ofparticular interest to the Agency is theeffectiveness of use of CKD as a liner orcap material. CKD may be a suitablematerial for use as a liner or capmaterial because of its cementitiousproperties. Studies on CKD obtained bythe Agency suggests that very lowhydraulic conductivities (less than 1 ×10¥7 cm/sec) are readily achievable inthe laboratory, and in field trials usingheavy equipment to compress CKD tohigh densities.32 However, the Agencyalso has contravening information fromone site visit and two case studieswhere CKD has been used as a capmaterial 33 which suggests that

compaction control is difficult tomaintain over an area that is acres insize. Nevertheless, EPA is not proposingtoday that CKD be banned from use asa liner or cap material. Rather, it can beused as part of a unit design if theperson managing CKD waste candemonstrate that the design meets theperformance standard for ground water,including establishing that the materialwill maintain integrity over long periodsof time and, therefore, has a lowpotential for release of contaminants.

6. Requirements for Ground-waterMonitoring

EPA is proposing that ground-watermonitoring be required for all new andexisting CKD management units, todetect the presence of regulatedconstituents in the ground water. Theground-water monitoring and correctiveaction requirements proposed today arebased on requirements promulgatedunder Part 258 for MSWLFs andhazardous waste regulations under Part264—Subpart F for Solid WasteManagement Units. The ground-watermonitoring system must include at aminimum one up gradient and threedown gradient wells. The down gradientwells must be located not farther than150 meters from the unit boundary atthe relevant POC specified by the EPARegional Administrator (or the State, inauthorized States). The ground-watermonitoring system must be capable ofascertaining the quality of backgroundground water that has not been affectedby releases from the unit, and assessingthe quality of ground water passing therelevant POC, as certified by a qualifiedground-water scientist. The ground-water monitoring program must includeconsistent sampling and analysisprocedures that are designed to ensuremonitoring results that provide anaccurate representation of ground-waterquality at the background and downgradient wells.

For facilities located in karst terrain,EPA is also proposing that the ground-water monitoring strategy include,where necessary, springs which are theultimate discharge points of the karstground-water basin in which the facilityis situated. In karst terrain, point-of-compliance ground-water monitoringwells may not detect a point sourcerelease from a CKD management unitbased on failure of the monitoring wellsto intersect the conduit through whichthe contaminant plume passes. Whilemonitoring wells are appropriate, theyare not fail-safe. Consequently,discharge points of the karst ground-

water basin should be incorporated intothe overall monitoring strategy to detecta release. In today’s rule, EPA isproposing that the EPA RegionalAdministrator (or the State, inauthorized States), in addition tospecifying the relevant POC, may alsospecify ground-water monitoring atdischarge points of the karst ground-water basin potentially affected byreleases from the CKD wastemanagement unit.

EPA is proposing two types ofmonitoring: detection monitoring andassessment monitoring. Under proposed§ 259.44, persons managing CKD wastein a CKD waste management unit willbe required to undertake a ground-waterdetection monitoring program, similarto that described under § 258.54 of theMSWLF rule. In a departure from theMSWLF rule, EPA is proposing torequire detection monitoring only forthe following parameters: pH,conductivity, total dissolved solids,potassium, chloride, sodium, andsulfate. These detection parameters areeasily measured and should provide areliable indication of inorganic releasesfrom the CKD waste management unit toground water. The Agency solicitscomment on the adequacy of thesedetection parameters for monitoringreleases and whether metal constituentsare necessary.

If detection monitoring indicates astatistically significant increase overbackground for one or more of thedetection parameters listed above, underproposed § 259.45, a person managingCKD waste is required to implement anassessment monitoring program, similarto that described in § 258.55 of theMSWLF rule. In another proposeddeparture from the MSWLF rule, today’sproposed rule does not require a scanfor the hazardous constituents listedunder part 258, Appendix II. Insteadpersons managing CKD under today’sproposed rule would be required tosample and analyze the ground waterfor only the inorganic constituents listedin Appendix VIII of Part 261 (antimony,arsenic, barium, beryllium, cadmium,chromium (total), lead, mercury, nickel,selenium, silver, and thallium).

Because this proposal requiresground-water monitoring at new andexisting CKD landfill units, today’saction effectively prohibits the locationof such units in areas where subsurfaceconditions prevent monitoring ofsubsurface contaminant migration fromthe landfill unit. EPA anticipates thatthe Regional Administrators (orauthorized States) will not issue anoperating permit for CKD landfill unitslocated in areas where subsurfacemonitoring is impossible. Geologic



34 The level of the national primary andsecondary 24-hour ambient air quality standards forPM10 is 150 micrograms per cubic meter µg/m3),and 65 µg/m3 for PM25, 24-hour averageconcentration. The standards are attained when theexpected number of days per calendar year with a24-hour average concentration above 150 µg/m3 forPM10, and above 65 µg/m3 for PM25, as determinedin accordance with Appendix K to 40 CFR part 50,is equal to or less than one. The level of the nationalprimary and secondary annual standards for PM10

is 50 micrograms per cubic meter (µg/m3), and 15µg/m3 for PM25, annual arithmetic mean. Thestandards are attained when the expected annualarithmetic mean concentration, as determined inaccordance with Appendix K to part 50, is less thanor equal to 50 µg/m3 for PM10 and 15 µg/m3 forPM25.

settings that could preclude effectiveground-water monitoring include areasof limestone bedrock in mature karstsettings, with complex networks ofconduits, fractures, and joints whichimpede accurate prediction of ground-water flow. The Agency considers it theresponsibility of the persons managingCKD waste to prove that a landfill canbe effectively monitored.

7. Corrective ActionToday’s proposal establishes

corrective action steps similar to§ 258.56 of the MSWLF rule. Within 90days of finding that any of the part 261inorganic constituents (see previoussection) have been detected at astatistically significant level exceedingthe ground-water protection standardsas defined under § 259.45(h), thepersons managing CKD waste mustinitiate an assessment of correctivemeasures. Such an assessment must becompleted within 90 days, or within analternative period of time decided bythe EPA Regional Administrator, inaccordance with § 259.46. Today’sproposal allows for swift remediation ofa ground-water problem, yet providesflexibility for selecting andimplementing the corrective remedy.

Under proposed § 259.47 and§ 259.48, the selection of a remedy andimplementation of the corrective actionprogram must be completed inaccordance with those procedureswhich are similar to those enumeratedin 40 CFR 258.57 and 258.58 forMSWLFs. These requirements onlyapply to those hazardous constituentsthat are likely to be present in CKD aspreviously described. An exceedance oftoday’s proposed ground-waterprotection standards would notimmediately result in classification ofsuch CKD as mismanaged. If a personmanaging CKD waste, however, failed totake the necessary corrective action afterdetecting an exceedance, CKD would beconsidered mismanaged and, therefore,hazardous waste. The Agency solicitscomment regarding the time periods inwhich remedial activities must beinitiated, and whether or not today’sproposed minimum time periods areappropriate given the widely varyingcircumstances likely to be encounteredat facilities requiring corrective action.

In today’s rule the Agency is notproposing facility-wide corrective actionstandards for the management of CKD.Instead, EPA proposes to requirecorrective action at units which areactively managing CKD. EPA believesthat the costs associated with requiringcorrective action at all solid wastemanagement units that may happen tobe located at a CKD facility make it

inappropriate to impose such arequirement. Where releases from suchunits have occurred, other state lawauthorities and the Federal imminenthazard authorities under section 7003 ofRCRA or section 106 of CERCLA, will beadequate to address any threats tohuman health and the environment.(The handling of corrective action atfacilities that become subject to today’sproposed Subtitle C standards isdiscussed in Section V.B.—Implementation of part 259 and RCRASubtitle C Backup Standards.)

B. Standards for Fugitive CKD Emissions

1. The Need to Limit Fugitive CKDEmissions

In the Agency’s follow-up workleading to the September 1994 NODA(see 59 FR 47133, September 14, 1994),EPA found evidence of possible risk tohuman health due to the fine particulatenature of inhaled dust. Particulatematter is of health concern because fineparticles such as CKD can penetrate intothe sensitive regions of the respiratorytract and cause respiratory illness.Negative effects associated withexposure to particulate matter includepremature death, hospital admissionsfrom respiratory ailments, and increasedrespiratory symptoms such as persistentcoughs, phlegm, wheezing, and physicaldiscomfort. Long-term exposure toparticulate matter may increase the rateof respiratory and cardiovascular illnessand reduce life span. Although theAgency’s direct inhalation exposuremodeling studies described in the RTCdid not indicate significant risk frominhaled chemical constituents in CKD,subsequent screening-level modeling onfive case study plants indicated thatwindblown dust from uncontrolled CKDwaste management units (uncoveredand dry CKD piles) could exceed EPA’shealth-based PM10 fine particulate (10microns or less) National Ambient AirQuality Standard(NAAQS) 34 at plantboundaries, and potentially at nearbyresidences.

Results from a subsequent extensionof this work to a larger sample of 52cement plants suggest that 28 of theplants could exceed NAAQS PM10

standards at plant boundaries, if theplants do not have effective dust controlmechanisms in place. The Agencyrecognizes that dust from mining andquarry operations could contribute tothe particulate emissions from a cementplant; however, other evidence (i.e.,damage cases) indicates that fugitiveCKD emissions are a substantialcontributor to environmental damagesin the form of air quality degradation.

Additionally, particulate emissions offugitive dust are the major contributor ofCKD to EPA’s indirect foodchainpathway model. The Agency’squantitative modeling of ‘‘indirect’’ foodchain pathways, both aquatic andagricultural, indicates potential humanhealth effects, both cancer and non-cancer. A wide range of chemicalconstituents, including arsenic,cadmium, chromium, barium, thallium,lead, and dioxins, were indicated asconstituents of concern at variousplants. Because some CKD disposalunits are located near, and in someinstances immediately adjacent to, farmfields, rural residences with gardens, orsurface waters containing fish, there ispotential for indirect risk from theconsumption of CKD-contaminated beef,vegetables and fish, as well as ingestionof CKD-contaminated water duringrecreational swimming.

Although quantitative risks presentlycan not be estimated, these initialmodeling results relating to fineparticulates suggest cause for concernand argue for further attention to thissource of fugitive dust. Consequently,the Agency believes it is necessary toimpose additional controls on fugitiveemissions under authority provided byRCRA section 3004(n).

2. ApplicabilityEPA is proposing air protection

standards to limit fugitive CKDemissions for all new and existing CKDwaste landfill units, except units closedprior to the effective date of the finalrule. Any expansion of an existing CKDlandfill unit, defined as any lateral orvertical expansion of the wasteboundary of an existing landfill unit,must meet today’s proposedrequirements. Under this proposeddefinition, any area of any existing unitthat receives waste after the effectivedate of this rule is an expansion. EPAis also proposing that interim storageunits, such as containers or buildingswhich contain CKD destined forrecycling or sale, must comply with theair performance standards.



35 Although wetting and watering is a commonfugitive dust suppression practice at CKD landfills,

the persistent releases of fugitive CKD reported inthe RTC suggest that frequent wetting alone is notsufficient to prevent blowing dust.

Consistent with controls proposedtoday for ground water, the Agency isnot proposing to require fugitive dustcontrols for the old, inactive portions ofexisting CKD landfills. However, EPAsolicits comment on applying aircontrols to the entire active unit,including any inactive area of a CKDlandfill with an expansion.

These proposed standards could bemet in one of two ways. First, a personmanaging CKD waste could obtain adetermination from the EPA RegionalAdministrator (or from the State, inauthorized States), that a managementpractice or design meets theperformance standard, providingadequate assurance that the unit ismanaged to control wind dispersal ofparticulate matter. Second, the personmanaging CKD waste could design unitsaccording to technology-based standardsoutlined below, so as to obviate theneed for such a demonstration.

3. Performance Standard for theProtection of Air

Under today’s proposal, unit designmust ensure that wind dispersal ofparticulate material (PM) is controlled.The specific performance standard forair is that the persons managing CKDmust cover or otherwise manage theunit to control wind dispersal of CKDwaste. This standard would apply tosolid PM that becomes airborne directlyor indirectly as a result of CKD handlingprocedures. The most common sourcesof PM at cement manufacturing facilitiesto which this standard applies includesvehicular traffic on unpaved roads or onCKD waste management units, and winderosion from waste management units.This standard would not apply to CKDemitted from an exhaust stack.

The Agency understands thatmethods for controlling fugitive dustwill vary depending on factors such asgeographic location, climate, facilitydesign, and CKD management method.While the technology-based standards ofconditioning CKD, using covers,watering, and use of tanks, containers,or buildings for temporary storage,meets the performance standard, othertechniques and technologies may be asor more effective. Therefore, today’sproposal provides persons managingCKD waste, working with regulatoryagencies, with substantial flexibility todetermine the appropriate method tocontrol fugitive emissions based onfacility-specific conditions.

To demonstrate compliance with theperformance standard for the protectionof air, EPA is proposing that personsmanaging CKD waste in new andexisting CKD landfills, temporarystorage areas, and trucks provide cover

or otherwise manage the CKD such thatequivalent control exists to thatprovided by daily cover of the landfillunit. Additionally, if landfill units,roads, temporary storage areas, andtrucks are managed with no visiblefugitive emissions of CKD, the Agencywould view that the performancestandard is met. The Agency solicitscomment regarding the effectiveness ofvarious fugitive dust control methods indemonstrating compliance with theperformance standard for air so thatEPA can provide comprehensiveguidance to persons managing CKD andto staff at regulatory agencies whowould implement today’s proposedrule.

4. Technology-Based Standards forFugitive Dust Control

a. ConditioningFor facilities complying with the

technology-based standards, EPA isproposing that CKD managed inlandfills must be emplaced asconditioned CKD. For purposes of thissection, conditioned CKD means cementkiln dust that has been compacted in thefield at appropriate moisture contentusing moderate to heavy equipment toattain 95% of the standard Proctormaximum dry density value accordingto ASTM D 698 or D 1557 test methods.Such conditioning can be achieved bymixing the CKD with water on acontinuous or batch basis, such as pug-milling, followed by compaction. Thematerial should be spread in lifts ofuniform thickness and compacted to therequired density with appropriateequipment (e.g., a heavy sheep-footroller). The compaction of moist CKD,coupled with the waste’s naturalcementitious properties, enablesindividual waste particles to bondtogether, thus greatly reducing theavailability of particulate material for airdispersal, and, therefore, this standardis protective for fugitive dust fromlandfills. In addition, the bonding canserve to decrease the leaching ofcontaminants from CKD.

b. CoversThe Agency is also proposing that

disposed CKD be covered with materialat the end of each operating daysufficient to prevent blowing dust. EPAbelieves that cover material applied atthe end of each operating day over theactive face of the CKD landfill willprevent the entrainment of fugitive dust,and is a more effective practice for dustsuppression than frequent wetting andwatering.35 The cover must be

constructed of materials that haveappropriate physical and chemicalproperties, and sufficient strength andthickness to prevent failure due tophysical contact with CKD, climaticconditions, the stress of installation, andthe stress of daily operation. Similarly,EPA is proposing that CKD transportedin trucks on or off the facility be coveredto minimize fugitive emissions of CKD.Alternative materials or actions may beapproved by the EPA RegionalAdministrator (or the State, inauthorized States), as long as the personmanaging CKD waste makes ademonstration that the alternative meetsthe performance standard.

c. Wetting

Wetting of CKD on roads is notrequired in today’s proposedperformance-based standards. EPAbelieves, however, that consistentwetting and watering of unpaved roads,when used in conjunction with other aircontrol technologies, can reducereleases of fugitive emissions fromfacilities that manage CKD. Data from anEPA study of fugitive dust emissionsfrom cement plants and potentialcontrol measures indicates that fugitivedust emissions from unpaved roads canbe significantly reduced by increasingthe moisture content of the dust.However, the wetting of roads by itselfwill not meet today’s proposedperformance standard for air.

The Agency solicits comments on theeffectiveness of these and other methodsfor controlling fugitive emissions ofCKD.

d. Temporary Storage

The Agency today is proposing thatCKD destined for temporary storageprior to recycling, sale, or disposal notbe placed in land-based units, but intanks, containers, or buildings. CKDwould not be considered a hazardouswaste provided the storage that precedessale or recycling provides adequatecontrol of fugitive dust. An acceptablecontainment unit must be a man-madestructure with a foundation constructedof non-earthen materials, have walls(which may be removable), and have aroof suitable for diverting rainwateraway from the foundation. Inconsidering these criteria for containersand buildings, EPA is placing specialemphasis upon practical considerations,such as the need to transport materialsin and out of the unit in a reasonablefashion. The Agency would not requirethat these units meet full Subtitle C



requirements for storage of hazardouswastes as outlined in parts 264 and 265subparts I and J.

C. ClosureIn today’s proposed rule, EPA is

requiring that new and existing CKDlandfill units, including expansions beclosed in accordance with specifiedstandards, and that units be monitoredand maintained after closure. Closureand post-closure plans describing theseactivities are to be prepared to complywith a minimum set of proceduralrequirements. As described in thedamage cases supporting this rule,improperly closed CKD landfills havethe potential for contaminating theenvironment due to inadequate controlsto contain the waste. For example, inone damage case, CKD wastes remainedexposed due, in part, to failure to installa proper cap or insulate the waste fromthe erosive wave action of Lake Huron.

EPA proposes that all personsmanaging CKD waste in CKD landfillunits must install a final cover designedto minimize infiltration and promotedrainage from its surface whileminimizing erosion. It must also bedesigned so that settling and subsidenceare accommodated to minimize thepotential for disruption of continuityand function of the final cover. TheAgency believes that placement of afinal cover over closed portions of aCKD landfill is necessary to minimizethe infiltration of rainwater, minimizethe dispersal of CKD waste throughphysical interaction, and minimize theneed for further maintenance at thefacility through the post-closure periodand beyond. The infiltration layer mustbe a minimum of 18 inches of earthenmaterial that has a hydraulicconductivity of less than or equal to thebottom liner system, or no greater than1 × 10¥5 cm/sec, whichever is less. Theerosion layer must have a sufficientthickness to sustain native plant growth.Alternative final cover designs may beapproved by the EPA RegionalAdministrator (or the State, inauthorized States), if the cover layersachieve the same objectives as thespecified design in this proposed rule.

D. Post-Closure CareToday’s proposed rule also requires

that post-closure care be conducted fora period of 30 years after the closure ofeach CKD landfill unit. Post-closure careconsists of maintaining the effectivenessof the final cover and continuingground-water monitoring and leachatemanagement to control the formationand release of leachate into theenvironment. Routine maintenance ofthe integrity and effectiveness of the

final cover is necessary to preventliquids from penetrating into the closedlandfill and creating the potential forleachate migration.

EPA is proposing in today’s rule togive the EPA Regional Administrator (orthe State, in authorized States),discretion to reduce or extend the lengthof the post-closure period based on site-specific demonstrations. The Agency isconcerned that 30 years may beexcessive or insufficient to detectreleases at some landfills. Therefore, theAgency wants to ensure that anypotential release will be detectedregardless of when it occurs.

Required activities in today’sproposed rule include repairs to thefinal cover to correct the effects ofsettling, subsidence, and erosion, andpreventing run-on and run-off fromdamaging the cover. Cover maintenancealso includes periodic cap replacement,which is necessary to remediate theeffects of routine deterioration. TheAgency believes that these activitieswill minimize liquids in CKD landfillsand are the minimum steps necessary toprotect human health and theenvironment in the long term.

Today’s proposal under § 259.50 alsorequires ground-water monitoring andmaintenance of the ground-watermonitoring system during the post-closure care period. The fundamentalpurpose of monitoring during the post-closure care period is to detect ground-water contamination in a timely fashionshould the CKD waste containmentstructure fail, and to trigger correctiveaction activities as soon ascontamination occurs. Long-termmonitoring is essential to detect releasesdue to catastrophic failure or design andinstallation errors (e.g., tearing of linersdue to ground movement).

E. Closure/Post—Closure PlanningRequirements

Today’s proposed rule also requirespreparation of closure and post-closureplans describing activities that will beundertaken to close each CKD landfillunit properly and maintain them afterclosure. These plans must be preparedand placed in the facility operatingrecord no later than the effective date ofthis rule, or the date of initial receipt ofthe waste, whichever is later.

The closure and post-closure carestandards also include certainprocedural requirements. First, prior toclosing of each landfill unit, the EPARegional Administrator (or the State, inauthorized States) must be notified andthe notification must be placed in thefacility operating record. Second,closure of the landfill unit must beginwithin 30 days after the date of final

receipt of CKD waste and closurecomplete within 180 days of receipt ofthe last shipment of waste. Extensionsto these deadlines may be approved forgood cause by the EPA RegionalAdministrator (or the State, inauthorized States). Third, followingclosure of the facility, a notation in thedeed to the property must be recordedthat indicates the property has beenused for CKD disposal. Finally, the EPARegional Administrator (or the State, inauthorized States) must be notified anda certification must be placed in thefacility operating record that verifiesthat closure and post-closure activitieshave been conducted in accordancewith closure and post-closure plans.The certification must be signed by anindependent registered professionalengineer, or approved by the EPARegional Administrator (or the State, inauthorized States).

F. Financial AssuranceIn today’s proposed rule, a

demonstration of financial assurance isrequired for the costs of conductingclosure, post-closure care, and, ifapplicable, corrective action for knownreleases. The proposed financialassurance requirements are patternedafter the financial assurance provisionsfor municipal solid waste landfillfacilities (MSWLFs) under Subtitle D.(see §§ 258.71 to 258.75).

The purposes of financial assuranceare to ensure that the owner or operatorof a CKD landfill unit adequately plansfor the future costs of closure, post-closure care, and corrective action forknown releases, and to ensure thatadequate funds will be available whenneeded to cover the costs if the owneror operator is unwilling or unable to doso. To demonstrate to the EPA RegionalAdministrator (or the State, inauthorized States) that it has plannedfor future costs, written cost estimatesmust be prepared. These cost estimateswould serve as the basis for determiningthe amount of financial assurance thatmust be demonstrated.

EPA is proposing that personsmanaging CKD waste in new andexisting CKD landfill units, includingexpansions, be required to demonstratefinancial responsibility for closure, post-closure care, and corrective action forknown releases in an amount equal tothe cost of a third party conductingthese activities. The ‘‘third party’’provision ensures that adequate fundswill be available for the regulatoryagency to hire a third party to conductclosure, post-closure care, andcorrective action in the event that theperson managing CKD waste fails tofulfill these obligations.



The cost estimates must be based onthe cost of closing the CKD landfill unitat the point of the landfill’s active lifewhen the extent and manner of itsoperation would make closure the mostexpensive. Similarly, cost estimates forpost-closure care must include estimatesfor both annual and periodic activities,and account for the most expensivecosts of routine post-closure care. EPAis proposing that the cost estimates beupdated annually for inflation andwhenever design changes cause changesin the costs at the CKD landfill unit.Cost estimates may be reduced provideda justification for the reduction is placedin the operating record and the EPARegional Administrator (or the State, inauthorized States) is notified. TheAgency solicits comment on whethercost estimates need prior approval bythe EPA Administrator.

In today’s proposal, any personmanaging CKD waste who is required toundertake a corrective action programwould be required to prepare anestimate of the cost of an appropriatecorrective action program (for example,by multiplying the total annual costs ofremedial actions by the number of yearsrequired to complete the correctiveaction program).

Today’s proposed rule includes a listof specific financial mechanisms thatmay be used to demonstrate financialresponsibility, as well as criteria forjudging whether other mechanisms areacceptable. The rule permits the use ofa trust fund with a pay-in period, suretybond, letter of credit, insurance, State-approved mechanism, and Stateassumption of responsibility.

Today’s proposed rule would alsoallow private owners or operators ofcement kiln dust landfills (CKDLFs) thatmeet certain financial andrecordkeeping and reportingrequirements to use a financial test todemonstrate financial assurance forCKDLF closure, post-closure care andcorrective action costs up to a calculatedlimit. (Costs over the limit must still beassured through a third-partymechanism such as a surety bond ortrust fund, or, in authorized States,through other appropriate mechanismsthe State determines to meet theperformance standard proposed at§ 259.64(l)). The financial test allows acompany to avoid incurring theexpenses associated with the existingfinancial assurance requirements whichprovide for demonstrating financialassurance through the use of third-partyfinancial instruments, such as a trustfund, letter of credit, surety bond, orinsurance policy. With the financialtest, private persons managing CKDwaste may demonstrate that they are

capable of meeting their financialobligations at their CKDLFs through‘‘self insurance.’’

In addition, today’s proposed ruleallows persons managing CKD waste tocomply with financial responsibilityrequirements for CKDLFs using aguarantee provided by another privatefirm (the guarantor). Under such aguarantee, the guarantor promises to payfor or carry out closure, post-closurecare, or corrective action activities onbehalf of the person managing CKDwaste in a CKDLF if the person fails todo so. Guarantees, like other third-partymechanisms, such as letters of credit orsurety bonds, ensure that a third partyis obligated to cover the costs of closure,post-closure care, or corrective action inthe event that the person managing CKDwaste goes bankrupt or fails to conductthe required activities. At the same time,a guarantee is an attractive complianceoption for persons managing CKD wastebecause guarantees are generally lessexpensive than other third-partymechanisms.

Today’s proposed rule releasespersons managing CKD waste fromfinancial responsibility for closure, post-closure care, or corrective action whenthe EPA Regional Administrator (or theState, in authorized States), is notifiedthat a certification has been placed inthe facility operating record that thespecific activities (i.e., closure, post-closure care for a period, correctiveaction) have been completed inaccordance with the appropriate plan.The certification must be signed by aprofessional engineer, approved by theEPA Regional Administrator (or theState, in authorized States).

EPA is also considering requiringpersons managing CKD waste in CKDlandfill units to demonstrate financialassurance for third party liability tocompensate injured third parties. Suchliability requirements are currentlyrequired under RCRA Subtitle C forhazardous waste management facilities(see 40 CFR 264.147). Financialassurance for third-party liabilitypotentially benefits the public health byproviding the incentive of lowerinsurance premiums resulting fromimproved facility design and operation.

Under § 264.147, an operating landdisposal facility must have bothcoverage for sudden accidental releasesin the amount of $1 million peroccurrence and $2 million annualaggregate plus nonsudden coverage.This nonsudden accidental coverage isfor an additional $3 million peroccurrence and $6 million annualaggregate. Thus, were the Agency torequire the same level of liabilitycoverage for CKD landfills as for

hazardous waste land disposal ownersand operators, they would need at least$4 million and $8 million in total.

For municipal solid waste landfillfacilities, EPA has deferred thedevelopment of third party liabilityrequirements under part 258. EPA’sdecision to defer these requirementswas based upon two issues. The firstwas that the Agency had insufficientdata to set appropriate levels for thirdparty liability coverage. Second, theAgency was concerned that owners andoperators of MSWLFs would encounterdifficulty in obtaining financialassurance mechanisms to fulfill thisrequirement. (For more information onthese points please see the Appendix tothe final regulation establishing theSolid Waste Disposal Criteria at 56 FR51108.)

The Agency, however, believes thatthe risks from CKD landfill are closer tothose for from MSWLFs than fromhazardous waste treatment, storage, anddisposal facilities (TSDFs). Therefore,the types of liability requirements forhazardous waste TSDFs may beinappropriate for CKD landfills. Further,the amounts of coverage that EPAshould require may also differ. EPA haslimited data at this time to specify theamount of liability coverage that wouldbe appropriate for a CKD landfill unit.Another consideration is the cost ofimplementing such a requirement. EPAis reluctant to directly adopt the levelsof coverage required for Subtitle Cfacilities without further analysiscomparing the risks and resultant thirdparty claims from CKD landfill unitsand other Subtitle C hazardous wastefacilities. The Agency, therefore,requests comment on whether or not torequire financial assurance for third-party liability for CKD landfill units. Inparticular, EPA requests information onthe risks to third parties from thesefacilities, the amount of claims, and theavailability of liability coverage to assistit in setting appropriate levels ofliability coverage.

G. ImplementationExcept as provided in proposed

§ 259.40, existing CKD managementunits, including vertical expansionswould be required to be in compliancewith the groundwater monitoringrequirements proposed under § 259.40within two years after the effective dateof the final rule. New CKD managementunits, including lateral expansions mustbe in compliance with the ground-watermonitoring requirements proposedunder § 259.41 before CKD can beplaced in the unit. Ground-watermonitoring shall be conductedthroughout the active life and post-



closure care period of the CKDmanagement unit as proposed under§ 259.51.

A unit design which causes anexceedance of the groundwaterprotection standard will be consideredas being in compliance with today’sproposed rule if appropriate correctiveaction is taken. As explained below, ifa person managing CKD waste does notinitiate corrective action to correct thesource of contamination within 270days (unless an alternative schedule forcompliance is set by the EPA RegionalAdministrator under § 259.47(e)), theCKD managed in such a unit will beconsidered a Subtitle C waste, andsubject to standards under 40 CFR part266.

1. Notification, Recordkeeping, andReporting

Record reviews are one of the waysEPA can ascertain whether a facility isin compliance with today’s proposedstandards. Accordingly, in § 259.23 oftoday’s proposal, EPA has included arecordkeeping requirement to ensurethat a historical record of CKD landfillperformance is maintained. The personmanaging CKD waste would be requiredto maintain the following records: (1)Any required demonstration,certification, finding, monitoring,notification, testing, or analytical dataproposed today under Subpart E of part259; (2) required inspection records,training procedures, and regulatoryagency notification procedures asproposed under § 259.20; (3) requiredclosure and post-closure care plans andany monitoring or analytical dataproposed under §§ 259.50 and 259.51;and (4) any required cost estimates andfinancial assurance documentationproposed under subpart G of today’sproposal. The required informationwould be recorded as it becomesavailable, and maintained by thepersons managing CKD waste in newand existing CKD landfill units. EPArequests comment on the timing ofregulatory agency notification andwhether specific time requirements(e.g., 14 days from a finding) should bespecified for placement of documents inthe operating record.

In today’s rule, EPA is proposing thatinformation would be retained in anoperating record near the facility, or inan alternative location approved by theState (or in unauthorized States, by theEPA Regional Administrator). Inaddition, today’s rule proposes that allinformation contained in the operatingrecord must be publicly available. EPAbelieves that these requirements wouldensure the availability of basic types ofinformation that demonstrate

compliance with the requirements oftoday’s proposal, but requests commenton the operating record being kept nearthe facility or in an approved alternativelocation and whether limitations shouldbe placed on this requirement (i.e.,distance the record can be kept from thefacility, access to the record or publicavailability issues with the record beingoff-site.).

2. Permitting RequirementsEPA is proposing to modify the

requirements in 40 CFR part 270 byadding § 270.68 specific to thepermitting of cement manufacturingfacilities which manage CKD. Part 270of the hazardous waste regulationscontains specific requirements forpermit applications, permit conditions,changes to permits, expiration andcontinuation of permits, interim statusand special forms of permits. Facilitiesthat choose not to follow, or fail tomaintain the management standards forcement kiln dust waste proposed todayin part 259 may be required to obtain apermit under rules proposed todayunder 40 CFR 270.68. This Subtitle Cpermit would provide for the operationof the facility in accordance with 40CFR part 259, and may include suchadditional requirements as the EPARegional Administrator deemsnecessary to protect human health andthe environment, including, but notlimited to requirements regardingmonitoring, operation, financialresponsibility, closure and remedialaction. In States with an authorizedRCRA program, all references to theEPA Regional Administrator should beread as referring to the State Director, orother State official responsible forimplementing the State Subtitle C solidwaste permit program. Today’sproposed rule would also allow forFederal oversight and enforcement ofrequirements under Subtitle C.

The Subtitle C permit proposed todayunder § 270.68 is different from otherpart 270 permits. Generally applicablestandards under 40 CFR part 270 andpart 124 for permit application, issuanceand modification, apply to facilities thatare fully subject to the Subtitle Cregulations, including requirements forfacility-wide corrective action. Undertoday’s proposal, however, CKDfacilities subject to a permit to allowoperation in accordance with part 259regulations are not subject to certainregulations applicable to most Subtitle Cfacilities. For example, these facilitieswould not be subject to facility-widecorrective action and would not berequired to submit information tosupport a facility wide corrective actionprogram (see existing § 270.14(d)). The

Agency, therefore, solicits comment ontoday’s proposed approach, andwhether the full range of requirementsnormally imposed under part 270should be required for cementmanufacturing facilities which manageCKD. To address portions of part 270and 124 that would not apply for theseCKD facilities, proposed § 270.68 allowsthe EPA Regional Administrator (or theState, in authorized States), consistentwith the protection of human health andthe environment, to modify or waivepermit application and permit issuancerequirements in parts 124 and 270,except for procedures regarding publicparticipation.

EPA anticipates that few facilities willbe required to seek permits to operate inlieu of the terms of today’s proposedpart 259 standards and is proposingtoday’s standards under § 270.68 ratherthan detailed procedures ormodifications of existing part 270 forthe establishment of these permits. Thisapproach is consistent with that takenfor the Research, Development andDemonstration permits found in§ 270.65. In today’s rule, only thosefacilities that fail to comply with eitherthe performance standards or thetechnology-based standards under 40CFR part 259 will be subject to RCRASubtitle C regulations, and thus willrequire permits proposed under§ 270.68.

H. Applicability of the Boilers andIndustrial Furnaces Rule

On February 21, 1991, the Agencypromulgated a final rule for burning ofhazardous waste in boilers andindustrial furnaces (BIF rule) (see 56 FR7134). The BIF rule expanded controlson hazardous waste combustion toregulate air emissions from burninghazardous waste in boilers andindustrial furnaces. The rule alsosubjected owners and operators of thesefacilities to the general facility standardsapplicable to hazardous wastetreatment, storage and disposal facilities(40 CFR part 264) and subjectedhazardous waste storage units atregulated burner facilities to part 264permit standards.

Three types of facilities that burn orco-combust hazardous waste that areaffected by the BIF rule are: (1) Boilersburning primarily coal or other fossilfuels, (2) industrial furnaces processingprimarily ores and minerals, and (3)cement kilns processing primarily rawmaterials. Because residues from theseprocesses were covered by the Bevillexclusion until special studies werecompleted to determine whether theyshould be regulated under Subtitle C(see section 3001(b)(3)(A)(i-iii)), the BIF



rule requires owners and operators toapply a two-part test to determinewhether the Bevill exclusion continuesto apply. Using the test, owners andoperators are required to determine ona site specific basis whether co-combustion of hazardous waste hassignificantly affected the character ofthe residue. The residue is considered tobe significantly affected if both: (1)Concentrations of toxic (Appendix VIII)compounds in the waste-derivedresidue are significantly higher than innormal residue (i.e., without burning/processing hazardous waste); and (2)toxic compounds are present in thewaste-derived residue at levels thatcould pose significant risks to humanhealth. (For metals, these are set at theRCRA toxicity characteristic leveldefined in Appendix VII to part 266.) Ifthe test demonstrates that the waste-derived residue is significantly affected,or the persons managing CKD waste failto obtain data adequate to demonstratethat the residue has not beensignificantly affected, then the derived-from residues are subject to RCRASubtitle C hazardous waste regulations.Such residues are deemed to be fromtreating hazardous waste rather thanfrom burning fossil fuels, processingores or minerals, or manufacturingcement (see 56 FR 7196, February 21,1991, Section XIII for a discussion of thebasis for the two-part test).

One of the effects of today’s proposalis to replace the exemption of CKD fromhazardous waste regulation under theBevill exemption with specificmanagement standards applicable toCKD. As a result, the two-part testwould be meaningless since, in theabsence of the Bevill exemption, allwaste-derived CKD would be hazardousunder the derived-from rule (see 40 CFR261.3(c)(2)(i)), whether or not it exhibitsa hazardous characteristic. However, theAgency believes subjecting waste-derived CKD that does not exhibit ahazardous characteristic to full SubtitleC requirements would create excessiveburdens and be unnecessary. EPAbelieves that applying the regulationsproposed today under § 261.4(b)(8) tosuch waste will be protective. It shouldbe noted that characteristicallyhazardous waste-derived CKD is alreadysubject to Subtitle C regulation under 40CFR 266.112 and is not within the scopeof this rulemaking.

The Agency, therefore, still believes itis necessary for persons managing CKDwaste at facilities burning hazardouswaste as fuel to test whether their CKDexhibits a hazardous characteristicunder 40 CFR 266.112, and when theCKD tests hazardous, to manage theCKD as a hazardous waste under full

Subtitle C requirements. EPA believesthat subjecting characteristicallyhazardous CKD from hazardous wasteburning kilns to RCRA Subtitle Cregulations will provide an incentive forcement kiln owners and operators toreduce metals levels in their CKD toremain eligible for the tailoredstandards. EPA notes that cementmanufacturing facilities that burnhazardous waste and generate waste-derived CKD are subject to RCRApermitting regardless of the content ofthe CKD they generated, including therequirement to conduct facility-widecorrective action under 40 CFR 264.90,264.101, and part 264, subpart S. To theextent that CKD has higher levels oftoxic metals due to the combustion ofhazardous wastes, facilities may need todo more to achieve today’s proposedperformance standards.

EPA is proposing that the two-parttest for waste-derived CKD and SubtitleC requirements for characteristicallyhazardous residues should continue toapply to waste-derived CKD asdescribed in the BIF rule, but with arevision. EPA is proposing eliminationof part one of the two-part test, as setforth in 40 CFR 266.112(a)(1) becausethe Agency knows of no case whereCKD has passed the second test, butfailed the first. The Agency todaysolicits comments on the need for partone of the two-part test, and solicitsinformation on whether there is anyCKD that passed part one, but failed topass part two, the comparison withhealth-based limits. Additionally, theAgency proposes that waste-derivedCKD that does not test hazardous will besubject to today’s proposed performancestandards and management standards.

I. Exemption From the Definition ofHazardous Waste

1. Waste-Derived Clinker

As discussed in the RTC, CKD is oftenre-introduced into the kiln as asubstitute for raw material in clinkerproduction. In the absence of the Bevillexemption, under certain regulatoryscenarios clinker produced from re-introduced CKD could be considered ahazardous waste under the derived-fromrule (40 CFR 261.3(c)(2)(i)). As part ofthe regulations proposed today, EPA isalso proposing to exclude clinker fromregulation as a derived-from hazardouswaste when CKD is reintroduced to thecement manufacturing process. Whenreintroduced, CKD does not contributeany constituents to clinker productionthat are not already present in theproduction process. Furthermore, at thistime, EPA has no indication that such

clinker poses unacceptable threats tohuman health or the environment.

2. Light-Weight Aggregate Kiln DustAs mentioned in the Phase IV Land

Disposal Restrictions Final Rule onMining and Mineral Processing Wastes(see Land Disposal Restrictions—FinalRule to Phase IV: Clarification of BevillExclusion for Mining Wastes, Changesto the Definition of Solid Waste forMineral Processing Wastes, TreatmentStandards for Characteristic MineralProcessing Wastes, and AssociatedIssues, 63 FR 28556, May 26, 1998), EPAhas decided to defer any decision on theBevill status of air pollution controldusts and sludges generated from light-weight aggregate kilns (LWAKs)pending completion of an evaluation ofissues related to CKD and light-weightaggregate dust handling and use. Light-weight aggregate pollution control dustand sludge, like CKD, are produced asthe result of combustion of rawmaterials within a kiln. Like CKD, light-weight aggregate dust is usually notcharacteristically hazardous because itseldom fails the Toxicity CharacteristicLeaching Procedure (TCLP). In addition,if a LWAK burns RCRA hazardous wasteduring light-weight aggregateproduction, it is subject to the BIF rule,and the aggregate and associatedproducts could be considered hazardouswastes under the derived-from rule (40CFR 261.3(c)(2)(i)).

The Agency is considering providingtailored standards for LWAK dust thatare equivalent to those being proposedfor CKD. Under that scenario, LWAKdust would not be a hazardous wastewhen it is reintroduced to theproduction process, recycled, or usedfor beneficial purposes other thanagricultural use. With little or no LWAKdust disposed, it may be unnecessary toapply the disposal conditions for CKDto LWAK dust. The Agency, however,solicits comment on the appropriatenessof applying all proposed provisions forCKD to LWAK dust. Accordingly, EPAsolicits information on: (1) Thechemistry of aggregate dust and sludgesfrom LWAKs that burn and do not burnRCRA hazardous waste (both total andleachable concentrations of toxicmetals); (2) potential danger to humanhealth and the environment posed bythe management of LWAK dust andsludges; and (3) the current andpotential utilization of LWAK dust andsludges.

3. Use of CKD in Removal andRemediation Actions

In some situations CKD has been usedsafely and beneficially to absorb andstabilize hazardous wastes, oily wastes,



and sludges. When used to stabilize orsolidify wet wastes, CKD reacts verymuch like Portland cement, especiallywhen silica (sand) is present. Thisreaction serves to chemicallyimmobilize any toxic metals present inboth the CKD and the waste. Dependingon the nature of the waste and howmuch CKD is used, the appearance ofthe final product can be anything froma monolithic slab to a dried sludge.

Federal On-Scene Coordinators(OSC’s—see 40 CFR part 300) have usedCKD on a variety of emergency responsesites since the inception of theSuperfund removal program. After theCKD is thoroughly mixed with waste,the mixture is usually transported to anoff-site disposal facility. However,significant amounts of CKD/wastemixture may be left on site after aremoval action is complete. This canoccur when CKD is used to treat largeamounts of low hazard sludge in openlagoons, large amounts of waste-water,or large amounts of minimally-contaminated soil.

In all cases, the OSC ensures that theimmediate threat has been abated. If anOSC must leave CKD on-site after thecompletion of the removal action, he orshe will conduct post-treatmentsampling and analysis to ensure that theconstituents of concern have beenimmobilized and the mixed materialwill not pose a threat to human healthor the environment.

CKD is also used to solidify SewageTreatment Plant (STP) sludge and tostabilize oily sludges and other non-hazardous wastes. Treatment of sewagesludge is currently regulated under theprovisions of 40 CFR part 503. In mostcases, the volumes involved are smalland the CKD is thoroughly mixed withthe waste to ensure effective treatment.Accordingly, EPA is proposing thatnothing in today’s rulemaking wouldprevent, restrict, or regulate thebeneficial use of CKD as a stabilizer orsolidifier during RCRA cleanups undersections 3004(u), 3004(v) and 3008(h),Superfund response actions that arecarried out in accordance with therequirements of 40 CFR part 300—theNational Oil and Hazardous SubstancesPollution Contingency Plan (NCP), orwhen the EPA Region or, in anauthorized State, the State agency, findsthat the use of CKD in remediation isprotective of human health and theenvironment. By statute or regulation,CERCLA and RCRA cleanups must beprotective of human health and theenvironment. Therefore, use of CKD inthese situations would satisfy theprotectiveness requirements of RCRASubtitle C. Such use would fall withinthe general exemption for beneficial

uses, but to avoid any uncertainty withregard to remedial uses, a specificexemption is also being proposed.

J. Final Rule Effective DateEPA is today proposing that the

record-keeping, closure and post-closureplanning, CKD listing, agriculturalapplication standards, and fugitive dustemission standards become effective 90days after publication of the final rulein the Federal Register. The remainingcriteria, including landfill design,ground-water monitoring, correctiveaction, and financial assurancerequirements would become effective 24months after their promulgation.

EPA is proposing to make the record-keeping, closure and post-closureplanning, CKD listing, agriculturalapplication standards, and fugitive dustemission standards effective 90 daysafter publication because theserequirements can be implementedwithin this time frame and an earlyeffective date would be more protectiveof human health and the environment.First, the planning and record-keepingrequirements are self-implementing and,thus, lend themselves to a moreimmediate effective date. Second, 90days is the standard amount of timeprovided by EPA to implementhazardous waste listings under RCRASubtitle C. Third, laboratories capable oftesting CKD are readily accessible, sosignificant additional capital wouldlikely not be required to test CKD orimplement today’s proposedagricultural application standards.Moreover, EPA believes that significantadditional capital is not required tofund facility changes needed toimplement today’s proposed fugitivedust controls, such as the compactionand daily cover requirements for CKDlandfills. The Agency, however, solicitscomment on whether there are technicalfactors which make the 90 day periodfor implementation of today’s proposedfugitive dust emission standardsdifficult to comply with.

The 24 month effective date would belimited to those requirements thatinclude interactions with ordeterminations by the EPA RegionalAdministrator (or the State, inauthorized States), including landfilldesign, ground-water monitoring,corrective action, and financialassurance requirements. EPA believesthe proposed 24 month period wouldprovide persons managing CKD wastesufficient time to perform the studiesand other actions (e.g., conduct a karstinventory, install ground-watermonitoring wells, implement correctiveaction measures) necessary to bringtheir facilities into compliance.

EPA today is also distinguishingbetween those CKD landfill (CKDLF)units that stop receiving CKD wasteprior to the date of today’s proposedrule and those that stop receiving CKDwaste in the window between the dateof today’s proposed rule and theeffective date of the final rule. CKDLFsin the former category will remainoutside the scope of today’s proposedrule. EPA, however, is today proposingthat CKDLFs in the latter category havea final cover installed according toprovisions specified today under§ 259.50. The Agency is proposing thatthe final cover must be installed withinsix months of the last receipt of CKDwaste or the unit will be subject to allof the requirements of part 259—Management Standards for Cement KilnDust Waste.

EPA has decided to distinguishbetween the two categories of closedCKDLFs for several reasons. First, theAgency does not intend to includewithin the scope of today’s rulemakinginactive CKDLFs that stopped receivingwaste prior to the date of today’sproposed rule. Second, the Agencybelieves that some regulatoryrequirements for CKDLFs that stopreceiving waste between the date oftoday’s proposed rule and the effectivedate of the final rule would help preventreleases of CKD waste. Today’sproposed cover requirement wouldrestrict the introduction of rainwaterand surface water into the CKDLF unit,thereby limiting the production ofleachate. If closed without the benefit ofa cover, the CKDLFs would continue tobe exposed to precipitation and wind,which could result in the increasedproduction of leachate and fugitive dust.

V. Subtitle C Backup StandardsIn developing the Subtitle C standards

that would apply to CKD that ismismanaged (or ‘‘backup standards’’),EPA, consistent with the CKD regulatorydetermination, scrutinized specificRCRA Subtitle C components to developa tailored approach for CKD generatedfrom non-hazardous waste burningkilns, and non-characteristicallyhazardous CKD from kilns that burnRCRA hazardous wastes.

A. Subtitle C Requirements forHazardous CKD Waste

EPA is proposing that personsmanaging CKD that fail to comply withthe performance standards or thetechnical standards proposed todayunder 40 CFR part 259 shall be subjectto: (1) The provisions applicable togenerators of hazardous waste (40 CFRpart 262); (2) the EPA administeredwaste permit program proposed today in



§ 270.68; (3) RCRA Subtitle C imminenthazard Sections of Subpart A (§§ 264.4and 265.4); (4) the following Sections ofsubpart B (General Facility Standards):§§ 264.11 and 265.11 (Identificationnumber), §§ 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 (Personneltraining), and §§ 264.19 and 265.19(Construction quality assuranceprogram); (5) RCRA Subtitle C manifest,recordkeeping and reportingrequirements (subpart E—40 CFR parts264 and 265); and (6) all applicableprovisions for the management of CKDproposed in today’s rule under 40 CFRpart 259. EPA believes the provisions ofparts 264 and 265 that are not includedin today’s proposed rule (e.g., subpartW—Drip Pads) appear to be either notrelevant to CKD management or arealready covered by standards proposedtoday under part 259. Theserequirements operate in lieu ofrequirements in 40 CFR parts 263–265,and 268 except where portions of thosesubparts are specifically cross-referenced.

1. 3004(x)—Special CharacteristicsSection 3004(x) of RCRA authorizes

EPA to modify certain Subtitle Crequirements ‘‘to take into account thespecial characteristics of such wastes,the practical difficulties associated withimplementation of such requirements,and site-specific characteristics * * *so long as such modified requirementsassure protection of human health andthe environment.’’ Accordingly, theAgency is today proposing to suspendland disposal restriction requirements(LDRs) under RCRA sections 3004(c),(d), (e), (f), and (g); minimumtechnology standards under RCRAsection 3004(o); and facility-widecorrective action requirements undersection 3004(u) for the followingreasons. First, as long as CKD isdisposed according to the technology-based standards EPA proposes today,the Agency considers such controlsprotective of human health and theenvironment. Therefore, requiringtreatment in accordance with landdisposal restrictions would not benecessary. Second, as explained in thebackground documents to today’s rule,the minimum technologicalrequirements under section 3004(o) forSubtitle C landfills (e.g., double liners;two leak detection systems) would notprovide significant incremental benefitsover the technology-based landfilldesign standards proposed in today’srule, and would add to the practicaldifficulties associated with

implementation of such requirements.The technology-based standardsproposed in today’s rule for CKDlandfills include a composite liner,leachate collection system, and dailycover. A second liner and leachatecollection system, which are requiredfor hazardous waste landfills undersubpart N of 40 CFR part 264, areunnecessary. EPA believes the technicalrecord supporting today’s proposedstandards demonstrates that today’sproposed technology-based standardsare sufficient to protect human healthand the environment. The technology-based standards proposed today can bewaived, but compliance with today’sproposed performance standards meansthe alternative CKD landfill design isprotective of human health and theenvironment. Third, as explained above,EPA believes that it is inappropriate toimpose a requirement for facility-widecorrective action for old CKD disposalunits, and that reliance on RCRA section7003 or CERCLA sections 104 and 106should be adequate to address anysubstantial threats to human health andthe environment (see Section IV.A.7.—Corrective Action).

2. Facility-Wide Corrective ActionRequirement

EPA invites comment on the option ofrequiring facility-wide corrective actionat facilities that fail to maintain theterms of today’s proposed rule. Underthis option, these facilities would berequired to address past and potentialreleases of hazardous waste andhazardous constituents at their facilities,including from solid waste managementunits not covered by today’s proposedrule. Old cement kiln dust piles at CKDfacilities are solid waste managementunits. Based on the 113 cementmanufacturing facilities that were activein 1990, EPA estimates that there were740 inactive CKD disposal pilesnationwide and that approximately 90million metric tons of CKD were storedin these piles. A complete description ofthis study is available from the docketin Chapter 7 of the TechnicalBackground Document on GroundwaterControls at CKD Landfills. In addition,11 out of 13 ground-water damage cases,which form the basis of the CKDregulatory determination and today’srulemaking, involve releases of toxicconstituents from old inactive CKDdisposal piles. Given the number ofCKD disposal units and volume ofassociated CKD waste nationwide, thepotential facility-wide corrective actionresponsibilities are substantial. Underthis option, cement kilns that do notoperate under the terms of today’sproposed rule would fall into the

universe of approximately 3500facilities that are obligated to undergoRCRA facility-wide corrective action ifnecessary to protect human health andthe environment. This universepresently includes approximately 18cement manufacturing facilities thatburn hazardous waste.

The 3500 facilities currently requiredto undergo facility-wide correctiveaction differ greatly in the amount andcomplexity of environmentalcontamination and site conditions. Toaccommodate this diversity, thecorrective action program advocatesflexible, site-specific approaches tocorrective action. For example, althoughall facilities are ultimately held to finalfacility cleanup, EPA’s current programmanagement emphasis is on sourcecontrol and protection of human andenvironmental receptors. If facility-widecorrective action were required, CKDfacilities subject to corrective actionwould not necessarily be required toremove old piles. At many facilities, thistype of activity would be prohibitivelyexpensive and technicallyimpracticable, and other remedies, suchas emplacement of wind and watererosion controls, installation of ground-water removal and containment systemsand supply of alternate drinking watersupplies if necessary, would be moreappropriate. The corrective actionprogram can also accommodatetechnical and cost limitations byphasing in remedies. For moreinformation on the flexibility inherentto the corrective action program, (see 61FR 19432, May 1, 1996—CorrectiveAction for Releases From Solid WasteManagement Units at Hazardous WasteManagement Facilities).

EPA remains concerned about the costimplications if the flexibility providedby RCRA section 3004(x) is not fullyexercised. Imposing additional LDRs orthe landfill design requirementsspecified in RCRA section 3004(o)would create substantive complianceburdens on the regulated community.Corrective action requirements wouldalso increase costs, although asdiscussed above, that program allowsthe use of cost-saving measures. TheAgency’s regulatory determinationunder RCRA section 3001(b)(3)(c) thatadditional control of CKD is warrantedwas based on a balancing of the factorsspecified under RCRA section 8002(o),including cost. That determinationassumed that any regulation imposedunder RCRA could be designed so as tolimit the cost burden while regulatingthe risks of concern. While thedetermination under RCRA section3004(x) is separate from that underRCRA section 3001(b)(3)(c), and is based



on somewhat different factors, EPAwould likely re-evaluate the underlyingregulatory determination if RCRAsection 3004(x) were not interpreted toallow the degree of modificationproposed today. The Agency, however,interprets RCRA to provide the degree offlexibility proposed today and views theresulting regulatory system as fullyconsistent with its regulatorydetermination. EPA seeks comment onthis option in general and on the use offacility-wide corrective action authorityfor CKD that is mismanaged. EPA seekscomment in particular on likely cost,incurred as a result of facility-widecorrective action, taking into accountthe flexibility that the corrective actionprogram allows.

3. Manifest, Recordkeeping, andReporting Requirements

EPA is proposing in today’s rule thatmanifest, recordkeeping, and reportingrequirements established in parts 262,264, and 265 apply to hazardous cementkiln dust that is subject to provisionsproposed under part 266-subpart I. Theprincipal purpose of the manifestsystem is to track hazardous waste fromits point of generation, through its tripwith the transporter, to final dispositionoff-site at a treatment, storage, anddisposal facility. Part 262 also containsgeneral requirements for facilities thatmanage hazardous waste on-site.Subpart E of parts 264 and 265 specifiesrequirements concerning the return ofthe manifest to the facility whichgenerated the waste. These requirementsform the information loop designed toassist the CKD waste generator, who isresponsible for ensuring that hazardousCKD waste actually arrives at theintended facility for disposal.

Subpart E of parts 264 and 265 alsoincludes requirements for recordkeepingand reporting. The purpose of theserequirements is to ensure that theregulated community complies withhazardous waste regulations byproviding the enforcement agency withsufficient information to monitor facilityoperations. Together with the manifestsystem, these requirements are designedto minimize the likelihood of damagecase incidents resulting from impropertracking and waste disposal. In addition,the Agency believes that the variousrecords, reports, and signatures oftransporters, treaters, and disposers arenecessary to allow enforcement officialsto assign responsibility and, ultimately,liability in cases where problems arise.

B. Implementation of Part 259 andRCRA Subtitle C Backup Standards

Today’s proposed standards for theproper management of CKD are

contained in part 259 of the RCRASubtitle D regulations. Subtitle D ofRCRA establishes a framework forFederal and State cooperation incontrolling nonhazardous solid wastes.As discussed above, so long as CKD ismanaged according to the standards ofpart 259, CKD would be managed in away that is protective of human healthand the environment and would not beconsidered hazardous waste. Inproposing standards under part 259,EPA is providing minimum standardsfor protecting human health and theenvironment from the hazards of CKD.The actual planning and directimplementation of the standards underpart 259, however, remain outside theRCRA Subtitle C framework, so long asa facility remains in compliance withthe standards and thereby maintainscompliance with today’s proposed rule.

As discussed earlier, EPA is todayproposing that the EPA RegionalAdministrator (or the State, inauthorized States) be allowed to reviewand consider alternative CKD landfilldesigns and make determinationswhether or not they meet today’sproposed performance standards. Theperformance standards in today’sproposed rule are structured to allowflexibility to consider numerouslocation specific factors in tailoringfacility requirements.

Similarly, EPA is also proposing thatfacility plans for ground-watermonitoring, corrective action, closureand post-closure care, and financialassurance be reviewed and approved bythe EPA Regional Administrator (or theState, in authorized States). BecauseEPA does not directly regulate non-hazardous solid waste under RCRA,today’s proposed rule would not createenforceable requirements for CKDmanagement, but only conditions foravoiding Subtitle C regulation.However, EPA expects that when Statesadopt the part 259 standards they willlikely adopt them, not only asconditions, but also as directlyenforceable requirements in Subtitle Dprograms. In that case, the Subtitle Dprogram would be the primary meansfor regulating CKD.

In authorized States, EPA anticipatesthat there will be a high degree ofcooperation between State RCRASubtitle D programs (which will mostlikely implement the part 259standards) and State RCRA Subtitle Cprograms. For example, because failureto comply or take appropriate correctiveaction within the time frames proposedtoday under §§ 259.41, 259.44, 259.45,259.46, and 259.47 to ensurecompliance with any of the standardsproposed today under part 259 would

mean that the CKD is mismanaged, andconsidered a hazardous waste. If a Stateuses its RCRA Subtitle D program toconduct inspections or oversight ofcement kilns, violations of the standardsand/or failure to take appropriatecorrective action within the specifiedtime frames should be reported to theRCRA Subtitle C program, as well.

1. EnforcementAlthough the Part 259 standards

proposed today would likely be adoptedas a matter of State law, Federalinspection authority would still beavailable for facilities regulated underthose standards. Because significantviolations of the standards wouldconstitute mismanagement of CKD andwould result in designation of such CKDas hazardous waste, EPA (as well asState RCRA Subtitle C programs) wouldhave authority to inspect such facilitiesto determine whether they werehandling hazardous waste (i.e.,mismanaged CKD waste). In today’sproposed regulatory structure EPA hasincluded the list of violations thatwould cause CKD to be designated ashazardous waste in § 261.4 (Exclusions).In this section the Agency has clarifiedthat all CKD managed in compliancewith today’s proposed Part 259standards remains a non-hazardouswaste. CKD becomes a listed hazardouswaste if it fails to comply with theprovisions of § 261.4(b)(8)(ii)(A) and (B)which are described below. Thus, if theperson CKD waste is managing CKDinconsistently or in a manner that doesnot comply with the Part 259 standards,it would be subject to Federalenforcement under regulations proposedtoday in § 261.4(b)(8)(ii), to compelcompliance with RCRA Subtitle Crequirements proposed today in Part266. EPA solicits comment on whetherit would be more appropriate to list theprovisions in another section of theCode of Federal Regulations such as§ 261.3 (Definition of Hazardous Waste).

In general, EPA believes that facilitiesshould not necessarily be fullysubjected to RCRA Subtitle C for everyviolation of today’s proposedmanagement standards. Therefore, EPAdistinguishes between significantviolations which should cause thefacility to be regulated under RCRASubtitle C, and other violations whichshould not have that result if they arepromptly corrected. Proposed§ 261.4(b)(8)(ii)(A) enumerates the‘‘egregious’’ violations that wouldtrigger RCRA Subtitle C regulationimmediately which would include: (1)Failure to make any applicabledemonstration requirements for newCKD landfills as specified under



36 Under either version, today’s proposed rulewould provide the opportunity to implementcorrective action for releases to ground water. Anexceedance of ground-water standards by itselfwould not cause be considered mismanaged; onlyif a person managing CKD waste failed to meet thecorrective action requirements in the rule would itbecome subject to Subtitle C regulation.

§§ 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 saleor beneficial use in a suitablecontainment structure, as specifiedunder § 259.20, within two years afterthe effective date of the final rule,unless granted approval by the EPARegional Administrator (or the State, inauthorized States) under § 259.20(c) toimplement alternative measures forfugitive dust control; (3) failure to coveror dispose of CKD in a conditioned stateby 90 days after the effective date of thefinal rule, as specified under § 259.22,unless granted approval by the EPARegional Administrator (or the State, inauthorized States) under § 259.22(d) toimplement alternative measures forfugitive dust control; and (4) failure toinstall a composite landfill liner orground-water monitoring system, asspecified by §§ 259.30 and 259.41, bytwo years after the effective date of thefinal rule, unless granted approval bythe EPA Regional Administrator (or theState, in authorized States) for a unitdesign under the provisions of§ 259.30(h), or a finding is made of nopotential for migration under§ 259.40(b); (5) failure to undertakeappropriate corrective action within thetime frames specified under §§ 259.41,259.44, 259.45, 259.46, and 259.47; and(6) failure to comply with anyrequirement identified in a noticereceived from the RegionalAdministrator (or State) because ofrepeated violations of Part 259, otherthan those specified in subparagraphs(1) through (5) of this paragraph.

Under proposed § 261.4(b)(8)(ii)(A)(7),EPA will also consider repeatedviolations of Part 259’s lesserrequirements as a significant violation.Under this provision, if EPA determinesthat a person managing CKD wasterepeatedly violates one or more lesserrequirements under Part 259, theAgency can send notice to that personinforming him or her that the nextviolation of such lesser requirementswill constitute a violation of§ 261.4(b)(8)(ii)(A), thereby causing anymanaged CKD to be consideredmismanaged and a hazardous waste.EPA believes this provision is warrantedbecause it provides the appropriateincentive for facilities to comply withall of Part 259 requirements, includingnotice and recordkeeping requirements.

In proposed § 261.4(b)(8)(ii)(B),violations of any standards of Part 259other than those listed in§ 261.4(b)(8)(ii)(A), will only triggerSubtitle C regulation if the personmanaging CKD waste fails to complywith those standards within 30 days ofreceiving a written notice of non-

compliance from the RegionalAdministrator (or State). This provisiongives the regulatory agency anintermediate enforcement responsemechanism for violations of lesser Part259 requirements that have not risen toa level that would trigger notice under§ 261.4(b)(8)(ii)(A)(7).

As an alternative to allowing 30 daysafter receiving a written notice, EPAsolicits comments on adopting aminimum period (for example, 90 days)to correct violations as a matter ofenforcement policy. Under theenforcement policy approach, EPAwould generally not commit to take anyenforcement action that would result inRCRA Subtitle C regulation for a periodof 90 days after the date of violation,unless there were unusual oraggravating circumstances. If theviolation is corrected in that period oftime (or, in the case of a violation thatcannot be corrected, if steps are taken toprevent recurrence), EPA would nottake enforcement action.

Under the regulatory approach, if aState adopted today’s proposedapproach, EPA would not havejurisdiction to bring an enforcementaction for a lesser violation (that is, aviolation not listed in§ 261.4(b)(8)(ii)(A)) until 90 days hadpassed from the date of violation. Underthe enforcement policy approach, EPAwould have jurisdiction to bring anenforcement action, but would commitnot to do so. EPA’s enforcement policywould not bind the State, but EPAwould encourage States to adopt asimilar approach. (In this respect, thetwo approaches are similar: if EPAadopted today’s proposed approach, itcould not preclude a State fromadopting regulations that did not allowthe 90-day window to correct lesserviolations. 36

EPA seeks comment on these twoapproaches as well as on the generalapproach of distinguishing betweenlesser and egregious violations. Inparticular, EPA asks commenters toaddress the issues of regulatoryjurisdiction, appropriate incentives todiscover and correct violations, whatconstitutes egregious and lesserviolations (e.g., whether certainpaperwork violations, such as thefailure to notify the regulatory authorityof a violation, should be consideredegregious), and the handling of cases

where violations are discovered wellafter they occurred. The Agency alsoseeks comment on the question ofwhether or not the proposedenforcement structure, with the tworegulatory categories of egregious andlesser violations, provides an incentivefor persons managing CAD waste toinform the Regional Administrator ofviolations. If not, the Agency seekscomment on alternative structures; forexample, on whether there is a categoryof violations intermediate betweenegregious and lesser. Additionally, theAgency also seeks comment on theproposed 90 day time frame to correctlesser violations before CKD isconsidered mismanaged.

As with all environmental issues,citizens are encouraged to be involved.Where citizen’s bring a concern to EPA’sattention, the Agency will respond on acase-by-case basis. In addition, RCRAauthorizes citizens to enforcerequirements pursuant to section7002(a)(1)(A): ‘‘any person. * * * to bein violation of any permit, standard,regulation, condition, requirement,prohibition, or order which has becomeeffective pursuant to this Act’’. Thisprovision allows citizens to enforce bothSubtitle C and Subtitle D requirements.Therefore, citizens could commence acivil action to enforce the Subtitle Crequirements applicable to CKD that isnot managed in compliance with today’sproposed Part 259 standards.

Where a violation occurs that can becorrected, the Agency believes a personmanaging CKD waste who promptlycorrects the problem should notnecessarily be subjected to hazardouswaste requirements on a permanentbasis. In some cases, the nature of theviolation may be such that it only affectsa distinct batch of waste. For example,if a person managing CKD waste failedto manage a particular truckload of CKDaccording to the transportationrequirements proposed today in Part259, that truckload would become non-exempt and would have to be managedas a hazardous waste (e.g., manifestedand sent to a landfill meeting thetailored Subtitle C requirements of Part266 for final disposal). However, if thepractice did not continue, the personmanaging CKD waste would not have tomanifest other shipments or have thefacility become permitted under SubtitleC. Other types of violations could resultin the CKD becoming subject to SubtitleC generally.

2. Removal of a Hazardous WasteDesignation

EPA believes that in some cases itmay be appropriate for CKD that hasbeen mismanaged to be again



37 If a person managing CKD waste submits apetition for reinstatement that is subsequentlyrevoked, it would be Agency policy to consider

such a default reinstatement to be prospective; thatis, beginning at the point the decision is made.

considered non-hazardous waste. Forexample, if a person managed CKDwaste in a landfill that released metalsenough to raise levels in ground waterabove appropriate MCLs, but laterrepaired the landfill and did not haveother violations of the standards,requiring a RCRA Subtitle C permitmight not be warranted. For these cases,EPA today proposes a procedure in§ 266.121 under which the designationas hazardous waste would be removed.Under this process, if any CKD wastebecomes mismanaged (i.e., loses theexclusion under § 261.4(b)(8)) andbecomes subject to § 266.120, the personmanaging such waste may apply to theRegional Administrator (or the State, inauthorized States) for removal of thehazardous waste designation for suchCKD. The application must include: (1)A statement that the CKD waste is nowbeing managed in accordance with§ 259; (2) a statement explaining thecircumstances of the non-compliance;and, (3) a demonstration that the non-compliance is not likely to recur andthat removal of the hazardousdesignation would not pose a threat tohuman health and the environment. TheRegional Administrator may reinstatethe § 261.4(b)(8) exclusion if theRegional Administrator finds that theperson managing CKD waste hassatisfactorily explained thecircumstances of the non-compliance,has demonstrated that the non-compliance is not likely to recur andthat removal of the hazardous wastedesignation will not pose a threat tohuman health or the environment. TheRegional Administrator may reinstatethe § 261.4(b)(8) exclusion withadditional conditions if the RegionalAdministrator finds that such additionalconditions are necessary to ensureprotection of human health and theenvironment.

Removal of the hazardous designationis not automatic, but the Agency istoday proposing that if the RegionalAdministrator does not take action onthe application within 60 days, then theapplication for removal of the hazardouswaste designation is deemed granted,retroactive to the date of the application.However, the Regional Administratormay terminate a removal (i.e., areinstatement of the § 261.4(b)(8)exclusion) by default under thissubsection if the Regional Administratorfinds that the removal of the hazardouswaste designation is not appropriatebased on analysis of the factors includedin the application.37 Today’s proposed

approach is patterned on that adoptedin the conditional exemption formilitary munitions, promulgatedFebruary 12, 1997 (see 62 FR 6637–38,February 12, 1997, Military MunitionsRule: Hazardous Waste Identificationand Management; ExplosivesEmergencies; Manifest Exemption forTransport of Hazardous Waste on Right-of-Ways on Contiguous Properties; FinalRule). EPA solicits comment on whetherthis procedure should be provided forCKD, and under what circumstances(and for what violations) it should orshould not be available. For example,EPA would want to assure that theprocedure could not be used repeatedlyby a person managing CKD waste whowas making no serious effort to complyuntil violations were called to itsattention by inspectors.

EPA notes that releases from a CKDdisposal unit do not, under today’sproposed rule, automatically constitutea violation of the Part 259 standards. Ifthe unit was designed and constructedin accordance with the designrequirements, but a release neverthelessoccurs, the CKD remains exempt so longas it complies with the corrective actionrequirements in the Part 259 standards.In implementing today’s proposed rulein authorized States, EPA anticipatesthere will be a high level of cooperationbetween State Subtitle D and StateSubtitle C programs. Based onconversations with State environmentalrepresentatives, the Agency anticipatesthat State D programs will generally takethe lead in assuring compliance withtoday’s proposed standards byconducting inspections of CKD landfillsand their associated facility operatingrecords. If a violation of today’sproposed standards is documented as aresult of a State inspection, or a facilityreports to the State that a release ofcontaminants to the environment hasoccurred, under provisions of § 259.46,today’s rule would allow personsmanaging CKD waste 90 days to assesscorrective measures. Under § 259.47, theperson managing CKD waste must selecta remedy within 90 days of completingthe assessment, and specify a schedulefor initiating and completing remedialactivities. Under regulations proposedtoday in § 259.47(e), the State wouldhave flexibility to set an alternativeschedule for compliance.

Once a State program makes a finaldetermination of non-compliance, (thatis, after allowing a minimum of 270days from the date of violation ornotification of the State for the personmanaging CKD waste to begin

implementation of corrective measures,the State program director makes adetermination that a person managingCKD waste has mismanaged CKD), theCKD managed at such a facility wouldbe hazardous waste, and subject to theproposed provisions of Part 266.Accordingly, responsibility forimplementation and enforcement of theprovisions of today’s rule shifts to thehazardous waste program authority(either the EPA Regional Administratoror, in an authorized State, the StateSubtitle C program). The EPA RegionalAdministrator (or the State, inauthorized States) would review andapprove Subtitle C permits under 40CFR 270.68, assure compliance with thehazardous waste generator requirementsof 40 CFR Part 262, and assurecompliance with the hazardous wastemanifest, recordkeeping, and reportingrequirements of 40 CFR Parts 264 and265.

3. Alternative Approach to Structuringthe Performance Standards

Today’s proposed standards aregenerally written in the form ofperformance standards. In complyingwith the performance standards, aperson managing CKD waste wouldhave to develop an approach, make ademonstration to the RegionalAdministrator (or the State inauthorized States) that the intendedapproach will achieve today’s proposedperformance standards, and receiveapproval by the regulatory authorityprior to implementing the approach.Representatives from the cementindustry have suggested an alternativeregulatory structure in which theAgency would establish a generalperformance standard to be achieved bythe person managing CKD wastewithout a requirement that the approachreceive prior approval by the RegionalAdministrator. The Agency seekscomment on the appropriateness andspecifics of such an approach.

Stakeholders have expressed concernsabout the industry’s suggestedalternative structure regarding theuncertainty of the public participationprocess, specifically about whether andhow the affected public would be ableto participate in decisions made bypersons managing CKD waste regardingcompliance with today’s proposedperformance standards. EPA believesthat the public has a vital role to playin decisions that affect their health andthe environment. Additionally, whenappropriate, the Agency has beensupportive of self-implementationbecause such an approach can lead toregulatory compliance within a shortertime frame than might otherwise be



possible. Thus, EPA is solicitingcomments on alternative regulatorystructures that would allow personsmanaging CKD waste to implementpollution controls designed to meet theperformance standards without theprocedural burden of seeking approvalfrom the regulatory authority. TheAgency is interested in information onhow such an alternative structure wouldallow persons managing CKD waste todemonstrate their design is adequate tomeet today’s proposed performancestandards, while ensuring opportunitiesfor the public to participate in thedeliberations and decision makingundertaken by the persons managingCKD. EPA believes that a process whichexpeditiously identifies and resolvescompliance issues prior to constructionis in the best interest of all parties.

The Agency is aware of one suchapproach. In 1995, as part of itsproposed approach to establishing anenforceable agreement (see SectionII.C.2—Proposed EnforceableAgreement), the cement industrysubmitted to EPA a draft plan for site-specific public participation. Their planwas designed to allow self-implementation of the provisions of theenforceable agreement with citizeninput, but without the time-consumingprocess of permitting (or seekingapproval by the Regional Administratoror the State). The industry’s commentand appeal process included thefollowing elements: (1) Notification ofcitizens when a person managing CKDhas prepared a design plan and intendsto submit a certification to theregulatory authority that their proposeddesign plan will meet a specificperformance standard; (2) a 45 daycomment period in which the publiccould submit relevant comments to thefacility (for example, commentsgermane to the performance of theproposed design); (3) preparation byfacility representatives of a documentresponding to the substance of allrelevant comments; (4) announcementby facility representatives of theavailability of the final design plan andcomment response document; (5)opportunity for appeal to theappropriate regulatory authority within30 days after the date of announcementof the final design plan; (6) arbitrationby the regulatory authority affordingboth the commenter and facilityrepresentatives an opportunity topresent their positions, and a finaldetermination by the regulatoryauthority, no more than 60 days afterfacility representatives have filed aresponse to the commenter’s appeal onwhether the commenter has

demonstrated that the proposed designplan would fail to provide forcompliance with the performancestandard; and (7) opportunity forjudicial review of the regulatoryauthority’s decision in federal districtcourt.

Representatives of local citizen groupscriticized this public participationprocess as being inadequate, bothstructurally and substantively. Theircomments on the public participationprocess include the following: (1) Allsignificant decisions regarding design,monitoring, and cleanup are left tofacility owners and operators; (2) publiccomments and appeal rights are limitedin both time and scope; (3) access todocuments is limited only to the designplan and not to other importantinformation such as data used tosupport the design plan, monitoringdata, and inspection reports; and (4)involvement by the regulatoryauthority’s staff is limited to a 60 daytime period and consideration ofcomments specific to the design plan.

A second alternative regulatorystructure would be similar to EPA’sapproach proposed in today’s rule, butwould establish a time frame for designapprovals within which the regulatoryauthority must make a determination ofthe appropriateness of the technicalapproach proposed by the personmanaging CKD waste. A time frame ofsix months might be sufficient, andwould add a degree of certainty to theprocess of prior approval. If theregulatory authority failed to take actionwithin the specified time frame, theproposed approach for controlling CKDwaste would be presumed adequate toensure compliance with theperformance standard. The Agency isseeking general comment on these twoalternative regulatory structures and onother potential approaches to protectinghuman health and the environmentwhile minimizing procedural burdensthat could delay implementation ofappropriate means of controlling risksposed by CKD.

VI. Standards for CKD Used as a LimeSubstitute

A. Summary

EPA is proposing to exclude fromregulation under RCRA CKD that is usedas a liming agent on agricultural fieldsprovided that such CKD meet specifiedlevels for concentrations of certainhazardous constituents. As explained inSection II.D. (Beneficial Use of CementKiln Dust) in this preamble, CKD iscurrently being used as a substitute foragricultural liming agents. Limingmaterials are added to agricultural soils

to maintain optimum pH for cropproduction and offset the effects offertilizers that lower soil pH. EPAencourages environmentally soundbeneficial use of production processwaste streams, including CKD.However, the benefits associated withthe recycling of CKD must be balancedagainst the potential hazards which theuse of CKD in this manner may alsopresent. CKD contains toxic metals andchlorinated dioxins and furans whichcan, at high exposure levels, presentadverse human health effects. In aneffort to determine whether use of CKDfor pH adjustment on agricultural soilpresents a potential threat to humanhealth and the environment, the Agencyconducted an assessment of the risk toindividuals from the use of CKD as aliming agent. A summary of the riskanalysis and results is provided below.Further description of the riskassessment is presented in the technicalbackground document titled RiskAssessment for Cement Kiln Dust Usedas an Agricultural Soil Amendment inthe docket for this rule.

Based on the risk analysis, EPAcalculated concentration limits that areprotective of human health forhazardous constituents in CKD that isused as an liming agent on agriculturalfields and home gardens. The numericallimits derived from the exposureassessment models are designed toprotect human health and theenvironment from reasonablyanticipated adverse effects. The Agencycalculated risk-based protective limitsfor all hazardous metals and dioxinspresent in CKD. By comparing the risk-based concentrations derived for eachconstituent with data on thecomposition of CKD, EPA identifiedconstituents that may be present in CKDabove levels that may pose risk tohuman health. Those constituents arearsenic, thallium, lead, cadmium andchlorinated dioxins and furans. EPA’sanalysis showed that all other toxicconstituents in CKD are present atconcentrations that are well belowprotective levels. Based on thesefindings, EPA is today proposing tolimit the concentrations of arsenic,thallium, lead, cadmium andchlorinated dioxins and furans that canbe present in CKD that is usedagriculturally for pH adjustment. Inother words, EPA is proposingstandards to limit the concentrations ofarsenic, thallium, lead, cadmium, anddioxins that can be contained in CKDthat is used as a substitute foragricultural lime because the Agency’srisk analysis indicates that thesecompounds are present in CKD in



excess of levels that may pose risk tohuman health when CKD is applied atrates necessary to attain the desiredincrease in pH. The Agency isconcerned that unregulated use of CKDas an agricultural liming agent maycause adverse effects on human health.

B. CKD Agricultural Use RiskAssessment

1. Risk Assessment MethodologyThis section describes the

methodology used to evaluate humanhealth risk to individuals from use ofCKD as an agricultural liming agent.EPA’s risk analysis evaluated exposuresto metals and dioxin congeners in CKDfor the following receptor scenarios;farmer, fisher, home gardener, and childof farmer. The assessment includes apreliminary sensitivity analysis toidentify risk-driving parameters, adeterministic analysis to estimatecentral tendency and high end risk, anda quantitative uncertainty analysis.Initial estimates of potential risk fromagricultural use of CKD were estimatedusing the deterministic method, whichproduces point estimates of risk toindividuals based upon single values forinput parameters (e.g., waste streamcharacteristics, environmental fate andtransport properties, exposureassumptions, etc). The deterministicrisk estimates for this analysis werederived using a double high-end riskassessment methodology. In thismethod, the input parameters are variedbetween the central tendency (50thpercentile) value and the high end (90–95th percentile) value both individuallyand in combination of any twoindependent variables to produce aseries of point risk estimates. The pointestimate in which all variables are set atcentral tendency is assumed to be thecentral tendency risk estimate and thehighest risk estimate for anycombination of double-high-endvariables is assumed to be the high endestimate (approximately 95th percentile)of risk. High-end risk descriptors areplausible estimates of the individualrisks for those exposed persons at the90th percentile or greater end of the riskdistribution. High-end risk is intendedto depict the risks that are expected tooccur in 10 percent or less of theexposed population.

The Agency also conducted aprobabilistic analysis of uncertainty/variability in support of thedeterministic analysis. The Agency haslong acknowledged the importance ofadequately characterizing variabilityand uncertainty in fate, transport,exposure and dose-responseassessments for human health risk

assessment as indicated in EPA’s May15, 1997 policy memorandum on Use ofProbabilistic Techniques in RiskAssessment. The probabilistic analysisundertaken for this analysis has beenconducted in accordance with theguidance set forth in the May 15, 1997memorandum. The first step of theprobabilistic analysis is a sensitivityanalysis using the deterministicmethodology to determine the risk-driving parameters. Results of thesensitivity analysis are provided in thetechnical background document for thisassessment. After the risk-drivers aredetermined, the quantitativeuncertainty/variability analysis isconducted by performing a Monte Carlosimulation by randomly varying therisk-driving parameters. A more detaileddiscussion of parameters that wereincluded in the Monte Carlo analysisand selection of data distributions foreach parameter is provided in thetechnical background documentdescribing the risk assessmentsupporting this rule.

2. Human Health Criteria and EffectsThe risk analysis uses chemical

composition data collected and used forthe 1993 Report to Congress on CKD, the1994 NODA on CKD and backgrounddocument supporting the 1995 CKDRegulatory Determination. Individualconstituents of concern evaluated in theassessment included dioxins and thefollowing metals: antimony, arsenic,barium, beryllium, cadmium,chromium, lead, nickel, mercury,selenium, silver and thallium. Theseconstituents were evaluated based onchemical specific health based levelsestablished and/or verified by EPAusing prescribed methodologies forevaluating human effects data. Thehuman health toxicity benchmarks usedin this analysis include Agency-verifiedoral reference doses (RfDs) andreference concentrations (RfCs) fornoncancer effects and oral cancer slopefactors (CSFs) and inhalation unit riskfactors (URFs) for carcinogenic effects.Agency-verified RfDs, RfCs, CSFs, andthe bases for these values are presentedin the EPA’s Integrated Risk InformationSystem (IRIS). The benchmarks for thedioxin and furan congeners are based onthe Toxicity Equivalent Factor (TEF) for2,3,7,8-tetrachlorodibenzo dioxin(TCDD2). The methodology forcalculating TEFs for dioxin and furancongeners is presented in the 1994 EPApublication entitled EstimatingExposures to Dioxin-Like Compounds.(EPA publication number EPA/600/6–88/005Ca)

3. Agricultural Use PracticeAssumptions

Agricultural use practices (i.e.,application rate and frequency) used inthe analysis are determined based onchemical and physical properties of soiland CKD that influence use of CKDagriculturally as well as economicconsiderations that affect CKD use. Thequantity of liming material required peracre to raise the pH to an acceptablelevel is determined by several factorsincluding desired change in pH,buffering capacity of the soil, chemicalcomposition of the liming agent andparticle size of the liming material.When these factors are considered, therate of application is usually 2 to 5 tonsper acre and the application frequencyis once every 2 to 5 years for all limingagents, including CKD. EPA solicitscomment on the appropriateness ofusing this rate and frequency ofapplication as assumptions in itsanalyses.

4. Fate and Transport of ChemicalConstituents in the Environment

The application of CKD as a limingagent is assumed to occur only in areaswith initial soil pH of less than 6 andareas that are near active cement kilnsgenerating large quantities of CKD.Based on these criteria, three sites,Holly Hills, South Carolina, Alpena,Michigan, and Ravena, New York wereselected for modeling. Site specificmeteorologic and soil properties datafrom these locations were used in boththe deterministic and uncertaintyanalysis. While meteorologic conditionswere evaluated in the sensitivityanalysis and were not shown to be aprimary risk driver, the three locationsmodeled represent a range ofmeteorologic conditions.

The Agency relied on the followingmodels to simulate movement ofpollutants into and through theenvironment. Speciation of metals inCKD applied agriculturally wasdetermined through MINTEQ modelingusing available site specific soil andmeteorologic data identified for eachgeographic setting. Equations developedby Jury, et al., were used in aspreadsheet calculation model todetermine contaminant loss from CKDdue to degradation, volatilization,leaching, and rainwater runoff ofdioxins and metals. The model tracksthe average annual soil concentrationand the annual mass of contaminantvolatilized for a period of 100 yearsfollowed by 40 years of inactive use.While the Agency assumed that CKDcan be applied to a field over a periodof 100 years, modeling indicates that thesystem will reach steady stateconcentrations over a period of 40 to 50years for persistent chemicals such as



most metals and dioxins. The UniversalSoil Loss Equation (USLE) as modifiedby EPA’s Offices of Solid Waste andResearch and Development was used toestimate soil erosion and overlandtransport of sediment from agriculturalfields amended with CKD acrossintervening areas to nearby waterbodies. Air emissions from CKD due towind erosion were estimated usingmethods and equations from EPA’sCompilation of Air Pollutant EmissionFactors, Volume I: Stationary Point andArea sources, Fifth Editions (commonlyreferred to as AP–42). Air dispersion ofparticulates was modeled using theEPA’s Industrial Source Complex ShortTerm, version 3 (ISCST3).

5. Uptake of Contaminants in Plants andAnimals

Plants may absorb contaminantsthrough air-to-plant biotransfer andthrough soil-to-plant uptake through theroots. Air-to-plant movement of dioxinswas estimated using constituent-specificbiotransfer factors specificallydeveloped for dioxin congeners byEPA’s Office of Research andDevelopment (ORD). Plant-to-soilbioconcentration factors were used toaccount for root uptake of constituentsfrom the soil. The bioconcentrationfactors for metals were obtained fromthe assessment conducted for EPA’sStandards for the Use or Disposal ofSewage Sludge. EPA recognizes thatthese biouptake factors were developedbased on field studies of sewage sludgeapplication and pertain specifically tosewage sludge. Uptake of metals isparticularly sensitive to soil pH and thedegree of binding to the sludge matrix.The sewage sludge values may not,therefore, be appropriate for evaluatingplant uptake of metals from CKD. TheAgency requests comment on whetherthe use of these biotransfer values isappropriate for assessing risks fromagricultural use of CKD. Biotransferfactors not available from the sewagesludge assessment were obtained fromthe published literature. Empiricalcorrelations were used to estimatetransfer of dioxins from the soil to planttissue using the methodology developedfor dioxins by ORD. Metals, dioxin, andfuran concentrations in beef and dairyfed on vegetation amended with CKDwere estimated using constituentspecific beef and milk biotransfer factorsavailable in the literature.

6. Receptor Scenarios and ExposurePathways

Receptor scenarios evaluated for thisassessment include farmer, fisher, homegardener, and child of farmer. Exposurepathways evaluated for each receptor

scenario are as follows. For the child offarmer, pathways evaluated includeincidental ingestion of contaminatedsoil, ingestion of plants grown onamended soil and ingestion of productsfrom animals raised on feed from CKDamended fields. Pathways evaluated forthe farmer include those evaluated forthe child of farmer and, in addition,direct inhalation of vapors andparticulates during application of CKDto the field. For the home gardener,pathways include incidental ingestionof contaminated soil and ingestion ofplants grown on amended soil.Exposure from ingestion ofcontaminated fish is evaluated for thefisher receptor scenario. Thegroundwater exposure pathway (i.e.,ingestion of contaminated groundwater)was not evaluated for this analysisbased on the results of the previouslyconducted analyses of risk from storageand disposal of CKD waste. Previousground-water modeling resultsindicated limited potential for thetransport of constituents bound in aCKD matrix. Although new ground-water modeling indicates that metals,including lead, barium, beryllium,chromium, and cadmium, may be moremobile under highly alkalineconditions, the Agency does not believethese conditions will occur in CKD-amended soils. CKD is added to raisethe pH of acidic soils to neutral pHs. ApH range of 6.0–7.2 is optimal for mostcrops. Highly acidic or highly alkalinesoils, on the other hand, have beenassociated with phytotoxicity and/ornutrient imbalance. Consequently,highly alkaline conditions are unlikelyto occur in CKD-amended agriculturalsoils. Furthermore, the ground-wateranalyses conducted in support of theReport to Congress and the RegulatoryDetermination analyzed risks from thestorage, management and disposal ofCKD. Under neutral pHs, thegroundwater risks associated with themanagement of large volumes of CKD innon-karst areas was estimated to be low.The volume of CKD applied inagricultural soils is far less than thevolume typically managed in a disposalunit. Therefore, EPA believes that therisks from the ground-water pathwaywill be negligible based on the typicalpH of CKD-amended soils and thelimited volume of CKD applied to soils.

The exposure factors used in this riskanalysis are from the Draft 1996Exposure Factors Handbook. This is oneof the first EPA risk assessments to usethese factors in either a deterministic orprobabilistic analysis. Therefore, theAgency used conservative consumptionand exposure distributions in instances

where there was uncertainty regardinghow the data presented in thisdocument should be used. The Agencyspecifically requests comment on theexposure factors used in this analysis.

7. Lead Risk AssessmentThe human health risk assessment

conducted for lead is unique. Theprimary indicator of exposures to lead iselevated blood lead levels. Therefore,exposure to lead is estimated based oncomparison of predicted blood leadlevel in exposed individuals to a targetblood lead level. In addition, evaluationof lead exposure focuses specifically onyoung children (birth to 7 years of age)because this age group is known to behighly sensitive to lead exposure. Giventhe unique nature of lead, EPAdeveloped the Integrated ExposureUptake Biokinetic Model (IEUBK) toevaluate child lead exposure from birthto age 7. EPA used the IEUBK model toassess lead risks from agriculturallyapplied CKD. This model integrates leadexposures from diet, soil, dust, drinkingwater, and air and considers eliminationof lead from the body to predict bloodlead levels. For the CKD agricultural useanalysis for lead, estimates of risk tochildren are determined by comparingtotal blood lead level estimated by theIEUBK model with a threshold value of10 µg Pb/dL. Adverse health effects fromlead exposure have been observed tooccur at or above this level.

For this analysis, blood lead levelswere estimated using the default soilintake rates provided in the IEUBKmodel. Default IEUBK soil ingestionrates differ from those used elsewhere inthis analysis to estimate risk from otherhazardous constituents in CKD. Soilingestion rates used for lead arepresented in Section 6.0 of the technicalbackground document. Soil ingestionrates used for other constituents arepresented in Section 5.0 of thebackground document. With theexception of soil ingestion rates, EPAused the same model inputs (e.g.,constituent concentrations, dietaryingestion rates, application rates) toestimate risks from exposures to bothlead and other hazardous constituentsin CKD.

8. Ecological Risk and PhytotoxicityThe Agency did not conduct a

separate assessment of potentialecological risks or phytotoxic effectsposed by use of CKD as a liming agenton agricultural fields. Rather, EPA reliedon the assessment conducted by EPA’sOffice of Water for the Standards for theUse or Disposal of Sewage Sludge (40CFR Part 503 et al.) as a basis forevaluating potential risks to ecological



receptors and/or toxic effects on plantsresulting from land application of CKD.For this analysis, the range of soilconcentrations for metals in soilestimated in the CKD risk analysis iscompared to the phytotoxicity and soilorganism benchmarks reported in theTechnical Support Document for LandApplication of Sewage Sludge—VolumeI (NTIS publication number PB93–110575). Values for ecologicalbenchmarks are only available for 4constituents in CKD, lead, nickel,chromium, and cadmium. Results ofthis analysis are provided in the RiskAssessment for Cement Kiln Dust Usedas an Agricultural Soil Amendment inthe docket for this rule. In summary, acomparison of these ecologicalbenchmarks to the constituentconcentrations in CKD amended soilestimated by the CKD risk analysisshows that the CKD soil concentrationsare well below these benchmarks in allcases. The Agency requests comment onwhether phytotoxicity and ecologicalrisk are adequately addressed by thisanalysis.

9. Risk Assessment Results

The results of the risk assessmentshow an estimated high-end individuallifetime cancer risk of 3×10¥5 due toarsenic and an exceedance of the non-cancer effect threshold or hazardquotient for thallium for a farmer andchild of farmer consuming productsfrom animals raised on feed grown onCKD-amended fields. Based on thesefindings, EPA believes there is a need toestablish standards to protect publichealth and the environment fromadverse effects of certain constituentsthat may be present in CKD usedagriculturally.

C. Approach to Establishing LimitingConcentrations

1. Risk-based Approach—ProposedLimiting Concentrations for Cadmium,Lead, and Thallium

The Agency used the exposureassessment modeling methodologydescribed above to establish constituent-specific numerical limits for hazardousconstituents (metals and chlorinateddioxins and furans) in CKD that is usedin lieu of agricultural lime. As a firststep, potential human health risks fromexposure to hazardous constituentswere evaluated for specified exposurescenarios using the constituentconcentrations, toxicity data, exposureassumptions, soil property data and fateand transport models outlined in theprevious section. The limitingconcentrations for individualconstituents were then derived using a

point estimate approach as follows. Allapplication parameters (rate, frequency,depth of incorporation) were set atconstant at high end values (i.e., valuesthat are at the upper end of thedistribution of application practices).CKD was assumed to be applied over aperiod of up to 100 years. The Agencybelieves this to be a reasonablyconservative assumption based onconsultation with agricultural expertsknowledgeable in the use of soilamendments. All other variables (e.g.,exposure parameters) were variedbetween central tendency and high endvalues one or two at a time in order toobtain the highest risk value for eachhazardous constituent. The highest riskvalue was then used to back calculatemaximum constituent concentrations atwhich adverse health effects from anysingle constituent do not exceed a1×10¥5 individual lifetime cancer riskor a non-cancer hazard quotient of 1 forany potential human exposure route(e.g., air, food chain, etc.). For lead themaximum constituent concentrationwas back-calculated based on a targetblood lead level of 10 µg Pb/dL.

EPA conservatively assumed a highrate and frequency of CKD application(within the range of application ratesand frequencies that are considered tobe agronomically viable) to setregulatory limits for hazardousconstituents in CKD. The Agencyassumed that CKD application will notexceed a high-end rate of 5 tons per acreevery 2 years, and that CKD may beapplied continually over a period of 100years. EPA believes these assumptionsensure that limiting concentrations areprotective given standard agriculturalpractices used for application andreasonably expected long term repeatedapplications of CKD.

Additionally, the Agency believes thatestablishing concentration limits thatare protective at plausible high endapplication practices will makeimplementation of regulatory limits lessburdensome on both the regulatedcommunity and EPA. Use of high endapplication assumptions allows theAgency to establish a singleconcentration that is considered to beprotective for all reasonably expectedapplication parameters.

As an alternative approach, theAgency could have established limitingconcentrations that would vary based onthe rate and frequency of CKDapplication. This approach would haveresulted in higher (i.e.,less stringent)cut-off concentrations in some cases,depending on application practicesemployed. However, under thisapproach, the Agency would have toimpose tracking and recordkeeping

requirements as a means of ensuringcompliance with limits that would varybased on varying application rates. Suchadditional requirements wouldsignificantly increase the complexity ofthe proposed regulations and theimplementation burden on the regulatedcommunity. By using conservativeassumptions regarding applicationpractices, the Agency will substantiallyreduce the recordkeeping burdenassociated with the implementation oftoday’s proposal. Furthermore, theAgency believes that the constituentconcentration limits so established willnot unduly restrict the beneficial use ofCKD for agricultural purposes (i.e.,based on EPA’s data, most CKD meetsthe proposed regulatory cut-off levels).In selecting this approach, the Agencyalso considered the fact that use of a lessconservative methodology (in whichapplication parameters were set atcentral tendency values) would stillresult in limits that, while higher or lessrestrictive, are still exceeded in someCKD for these five constituents. Inessence, use of the conservative riskassessment methodology describedabove to establish maximum regulatoryconstituent concentrations enables EPAto reduce the recordkeeping andeconomic burden associated withregulation of agricultural use of CKD butdoes not result in levels that are sostringent that they prohibit substantialbeneficial use of CKD as a substitute foragricultural lime. For these reasons,EPA chose to develop a single set ofconstituent concentrations that areprotective at high-end application rates.The Agency recognizes that thisapproach represents a trade-off thatfavors reduction of recordkeeping andreporting burden over establishment ofless restrictive standards. The Agencyrequests comment on the proposedapproach.

Today’s proposed rule assumes thatCKD will be applied at rates needed toattain the required pH adjustment andwill not be applied in excess of suchrates. Based on consultation withagricultural experts, review of theliterature, and considering physical andchemical properties of soil and CKD,EPA believes that application of 5 tonsof CKD per acre every 2 yearsconstitutes the maximum rate ofagronomically viable applicationnecessary to properly control pH inagricultural soils. Therefore, EPA’sanalysis assumes that CKD use will notexceed 5 tons per acre every two years.Given the inherent limitations on theamount of CKD that can be appliedbeneficially for the purpose of pHcontrol, EPA is not proposing to impose



38 Kanare, H.M., 1997 Comparison of Trace MetalConcentrations in Cement Kiln Dust, AgriculturalLimestone, Sewage Sludge, and Soil. Report to theAmerican Portland Cement Alliance byConstruction Technology Laboratories, Inc., Skokie,Illinois. 15p.

regulatory controls on the agronomicallyviable application of CKD. However,agronomic use of CKD to control pH inexcess of 5 tons of CKD per acre every2 years will be considered a form ofwaste disposal subject to RCRAregulation, rather than a legitimatebeneficial use exempted under today’sproposal.

As previously noted, a comparisonbetween the risk-based limitsestablished by the Agency using theabove methodology and theconcentrations of hazardousconstituents known to be present inCKD indicates that four metals, arsenic,thallium, lead and cadmium, may bepresent in CKD at levels that poseunacceptable human health risk(adverse health effects in excess of a 1× 10¥5 individual lifetime cancer risk ornon-cancer hazard quotient of 1 incertain instances). Therefore, EPA isproposing to establish regulatory limitsfor cadmium, lead, thallium, andarsenic in CKD that is applied toagricultural soil for purposes of pHadjustment. EPA is proposing to use themethodology described above to setprotective limiting concentrations forcadmium, lead, and thallium. EPA isproposing to use a differentmethodology to establish a limit forarsenic, as explained later in thissection. The Agency is not proposinglimits for those constituents for whichmaximum concentrations in CKD arebelow concentrations determined byEPA to be protective of human health.

The proposed risk-basedconcentration limits for cadmium, lead,and thallium are: 22 mg/kg forcadmium, 1500 mg/kg for lead, and 15mg/kg for thallium. Under today’sproposal, CKD that exceeds theproposed concentration limits for theseconstituents cannot be used as a limingagent on agricultural soils. Based onEPA’s data on the composition of CKD,most CKD meets the risk-basedprotective levels being proposed forthese metals and would therefore not beprohibited from agricultural use basedon the proposed limits.

2. Risk-Based Approach—ProposedLimiting Concentration for ChlorinatedDioxins and Furans

The process used for setting risk-based limiting concentrations forchlorinated dioxins and furans(hereafter referred to as dioxins) issimilar to that used for metals. However,unlike metals, dioxins are comprised ofmultiple individual dioxin and furancongeners. Therefore, in order to derivea single limiting concentration forpurposes of this regulation, the risksfrom individual dioxin and furan

congeners were estimated using the TEFmethodology referenced above (seeSection VI.B.2—Human Health Criteriaand Effects) and the risks from specificdioxin and furan congeners weresummed to produce a singleconcentration in terms of 2,3,7,8-TCDDtoxicity equivalents (TEQ). Based onEPA’s risk modeling using themethodology described above, theestimated total indirect cancer risks forthe farmer scenario from the averageNorth American soil backgroundconcentrations of dioxins in theenvironment is approximately 1×10¥5.The average TEQ backgroundconcentration of dioxin and furancongeners in soil is 8 parts per trillion(ppt).

Therefore, to ensure that agriculturaluse of CKD does not pose risks fromdioxins in excess of a 1×10¥5 individuallifetime cancer risk, EPA used a targetsoil concentration of 8 ppt TEQ toderive risk-based limitingconcentrations of dioxins in CKD. TheAgency back-calculated maximum TEQlevels for dioxins in CKD used as a limesubstitute that, when mixed with soil,would result in dioxin levels in soillevels at or below 8 ppt TEQ. For thisanalysis, the distribution of congenersin CKD was assumed to be the same asthe congener composition or congenerprofile of background soil. This isessentially a default assumptionbecause, based on available data onlevels and distributions of dioxincongeners in CKD, there is no ‘‘typical’’distribution of dioxin and furancongeners in CKD. Additionally,consistent with the methodology used todevelop limiting concentrations formetals, EPA fixed all applicationparameters at high-end values in settinglimiting concentrations for dioxins. Inthis manner, a limiting TEQconcentration for dioxins in CKD wasestablished so that when CKD is appliedat high application rates and frequency,soil concentrations do not exceed 8 pptTEQ. Assuming high-end applicationparameters, the maximum TEQconcentration of dioxins in CKD thatwill result in soil concentrations at orbelow 8 ppt TEQ was determined to be0.04 parts per billion (ppb). Based onthis analysis, EPA is proposing to setprotective limiting concentrations fordioxins in CKD that is used as a limingagent at 0.04 ppb TEQ. Under today’sproposal, CKD that exceeds theproposed concentration limit for dioxinscannot be used as a liming agent onagricultural soils. Based on availabledata on dioxins in CKD, the Agencydoes not believe that the proposedlimiting concentrations will

significantly restrict use of CKD as aliming agent. EPA requests comment onthe methodology and assumptions usedto develop the risk-based limitingconcentration for dioxins in CKD that isused as a substitute for agriculturallime.

3. Comparison to Agricultural Lime—Proposed Limiting Concentration forArsenic

The Agency is not proposing to usethe limit derived for arsenic using therisk-based methodology outlined above.Instead, EPA is proposing an alternativelimit for arsenic based on arsenicconcentrations found in commerciallyavailable agricultural liming materials.Total arsenic concentrations inagricultural lime range from < 1 to 13mg/kg.38 Based on this information, EPAis proposing a limiting concentration of13 mg/kg for arsenic in CKD that isapplied agriculturally to adjust soil pH.

Use of the risk-based approach resultsin a cut-off level for arsenic that isbelow concentrations typically found inagricultural lime and is in fact at orbelow background concentrations forarsenic in soils in many parts of thecountry. EPA believes that it isimpractical and illogical to prohibit theuse of a CKD as a liming agent if itcontains levels of arsenic at lowerconcentrations than agricultural limebecause such use would not increaseany risks faced by anyone who usesCKD as a substitute for agricultural lime.

Agricultural limestone (aglime) isfinely pulverized, naturally occurring,relatively pure limestone or dolomiticlimestone. Aglime is added toagricultural soils to maintain optimumpH for crop production and is needed tooffset the effects of fertilizers that lowersoil pH. Aglimes are produced and soldthroughout the United States. Statestypically regulate aglime by settingstandards for minimum calciumcarbonate equivalent and particle sizebut not for other properties such asmetal concentrations. Since CKD is usedas a substitute for aglime (i.e., it is usedto control pH for production of crops),EPA is proposing to use arsenic levelstypically found in agricultural lime as abasis for setting a regulatory limit forarsenic in CKD that is used in lieu ofagricultural lime. The Agency believesthat this approach provides a practical,common sense means of minimizing therisk from arsenic used as an agriculturalliming agent. The alternative would be



to effectively preclude the use of CKDas a liming agent without any reductionin environmental risk. The Agencyrequests comment on its proposedapproach for setting regulatory limits forarsenic in CKD that is used as asubstitute for agricultural lime. EPA alsorequests comment on whether it shouldconsider setting limits for arsenic thatare based on existing backgroundconcentrations of arsenic in areas wherethe CKD is applied.

4. Peer Review of the Risk AssessmentAn external peer review of the

agricultural use risk analysis and themethodology used to establishprotective constituent concentrationwas conducted prior to publication oftoday’s rule. The peer review wasconducted by the United StatesDepartment of Agriculture’s W–170Committee, which is comprised ofnationally known experts onagricultural use of soil amendments.Unfortunately, the Agency did not havetime to revise the assessment based onpeer review comments prior topublication of the CKD proposal. Thecommittee’s review is available in thedocket for this rule for public reviewand comment. The Agency also requestspublic comments on all aspects of therisk assessment including the pathwaysevaluated, exposure assumptions,assumptions used regarding agriculturalpractices, etc.; and on all aspects of themethodology used to establishprotective levels for hazardousconstituents in CKD used agriculturally.EPA anticipates undertaking revisionsto the risk assessment based onrecommendations received through thepeer review process as well ascomments received from the public. TheAgency also requests information onother existing and/or potentialagricultural uses of CKD that may needto be evaluated. EPA requests commenton whether CKD used for otheragricultural purposes should be subjectto the same standards as those proposedfor CKD used as an agricultural limingagent.

D. Implementation of Controls for theAgricultural Use of CKD

In today’s proposed rule, § 259.17defines agricultural use of cement kilndust as use of CKD as an agriculturallime substitute for the purpose ofamending the soil to optimize pH or topromote the growth of crops or otherfoodstuffs. The Agency restricts thisdefinition of use to CKD produced foruse by the general public and not for theexclusive use of the owner or operatorof the facility which generates the CKDwaste. EPA believes that when an owner

or operator applies CKD solely to hisown land, the practice is actuallydisposal.

The Agency intends to ensure there isa high degree of confidence that anyCKD sold for purposes as an agriculturallime substitute complies with today’sproposed standards. Therefore, today’srule also proposes that for CKD sold foragricultural use, the persons managingCKD waste (e.g., the owner or operatorof the facility which generated thewaste) shall place in the operatingrecord a notation listing the amount ofCKD shipped as an agricultural limesubstitute and a letter of certificationsigned by a company representativeverifying compliance with the limitingconcentrations specified under§§ 259.17(a) and (b). In today’s rule,EPA is not proposing to imposeregulatory limits or recordkeepingrequirements on the rate and frequencyof application of CKD used as anagricultural lime substitute because theAgency believes that today’s proposedstandards are protective across the rangeof anticipated, agronomically viableapplication parameters.

Today’s rule also proposes that CKDdestined for agricultural use be sampledand analyzed by the person managingthe CKD waste whenever such CKDwaste is destined for shipment. SuchCKD waste must be tested prior toshipment to determine whether it hasconcentrations of toxic constituents inexcess of the limiting concentrationsproposed in § 259.17(a). EPA believesthat CKD waste destined for agriculturaluse must be analyzed prior to shipmentfor the person managing the CKD wasteto determine whether or not such wastecan be used for pH adjustment. TheAgency is not specifying a samplingfrequency in today’s proposed rule. Ifthe sampling frequency is less oftenthan on a daily basis, however, andsubsequent analysis determines that theCKD fails the test, then the Agencyconsiders that all CKD transported foragricultural use since the previoussuccessful analysis to have beenmismanaged, and, therefore, would behazardous waste absent documentationotherwise.

E. Alternative Standard to LimitChlorinated Dioxins and Furans in CKD

As part of EPA’s development of airemission standards for the Portlandcement industry, the Agency hasproposed operational and monitoringmethods for cement kilns that burnhazardous waste (see 61 FR 17358,Hazardous Waste Combustors; RevisedStandards; Proposed Rule, April 19,1996 and 62 FR 24226, RevisedTechnical Standards for Hazardous

Waste Combustion Facilities; ProposedRule, May 2, 1997) and standards forhazardous air pollutants for cementkilns that do not burn hazardous waste(see 63 FR 14182, March 24, 1998,National Emission Standards forHazardous Air Pollutants; ProposedStandards for Hazardous Air PollutantsEmissions for the Portland CementManufacturing Industry). Thesestandards for air emissions includeuniform technology-based standards forchlorinated dioxins and furans, andreflect the performance of MaximumAchievable Control Technologies(MACT) as specified under the CleanAir Act.

To limit the emission of thesecompounds, EPA has proposed in bothrules a baseline air emission level for allcement kilns of 0.20 ng TEQ/dscm ofchlorinated dioxins and furans, or 0.4ng TEQ/dscm, and temperature at theinlet to the air pollution control deviceof less than or equal to 400°F. TheAgency believes temperature control to400°F or lower is an appropriatebaseline control at the air pollutioncontrol device because: (1) Theoptimum temperature window forsurface-catalyzed formation ofchlorinated dioxins and furans is 450–750°F; and (2) Below 350°F, kiln gas canfall below the dew point which canincrease corrosion in ESPs and fabricfilters and reduce performance of the airpollution control devices. Available airemissions data from cement kilns showall but one data point of dioxins andfurans at or below 0.2 ng TEQ/dscm atthe air pollution control device whenoperating the device at temperaturesless than or equal to 400°F. Thus, EPAbelieves a standard of 0.20 ng TEQ/dscm, or 0.4 ng TEQ/dscm andtemperature at the inlet to the airpollution control device of less than orequal to 400°F is both reasonable andreadily achievable.

The Agency solicits commentregarding whether the emissionstandards for dioxins and furansproposed for the cement industry areadequate to control the formation ofdioxins and furans on CKD destined foragricultural use, and consequentlywhether dioxin and furan standards forCKD used for agricultural purposes arenecessary.

VII. Relationships Between This Actionand Other Regulatory Programs

A. Stormwater Regulations

As stated in its RegulatoryDetermination, the Clean Water Act,through existing effluent limitationsguidelines, NPDES permits, waterquality standards, and existing storm



39 A ‘‘modification’’ is any physical or operationalchange to an existing facility that results in anincrease in the emission rate of any air pollutant towhich the standard applies.

40 ‘‘Best Available Control Technology’’ (BACT) isdefined as the best system of emission reductiondetermined by EPA to have been adequatelydemonstrated.

41 42 U.S.C. 7412(b)(1); The Act lists 189pollutants, but the Agency has since delisted one.

42 Under the revised NAAQS for particulatematter, States which currently are in attainmentregarding existing PM standards must submit toEPA for approval a new SIP which meets newlyadopted standards for PM (See 62 FR 38651, July18, 1997).

water permits, provides considerableauthority to control risks associatedwith the contamination of surfacewaters by the management of CKD.EPA’s multisector stormwater generalpermit under the National PollutantDischarge Elimination System (NPDES)program (see 60 FR 50804, September29, 1995) contains limits to controleffluent discharges specific to thecement industry (among otherindustries) and requires each plant todevelop facility-specific pollutionprevention plans and demonstrate bestmanagement practices (BMPs) tominimize the contact between stormwater runoff and CKD or other pollutantsources, or else remove CKD (or otherconstituents) before the stormwater isdischarged. These permits will be inaddition to previously issued andeffective storm water baseline generalpermits that were issued in 1992 by EPAand between 1991 and 1993 by the 40States with authorized NPDESprograms. The Agency believes thatonce the storm water permits are fullyimplemented, no further water permitsor regulations will be needed to addressCKD releases to surface water.

B. Clean Air Act

On the Federal level, air quality hasbeen improved through implementationof controls on releases of CKD throughkiln stacks and via fugitive dustemissions. Under the New SourcePerformance Standards (NSPS) forcement plants, a facility must complywith specific emission limitations forparticulate matter. Prevention ofSignificant Deterioration (PSD) reviewalso is required before a cement plantcan be built in a geographic area that isclassified as an attainment area. Inaddition, cement plants are subject toNonattainment Review if they arelocated in an air quality control areathat is not in compliance with theNational Ambient Air Quality Standards(NAAQS) for a given pollutant (e.g.,particulate matter or sulfur dioxide).Today’s proposed rule augmentsregulations applicable to cementmanufacturing facilities that have beenissued under Clean Air Act mandates byaddressing fugitive emissions from CKDstorage areas, transportation, anddisposal sites.

The NSPS for Portland cement plantsin 40 CFR part 60, subpart F apply toplants that were constructed ormodified after August 17, 1971.39

Components of cement plants (referred

to as ‘‘facilities’’) specifically affectedare kilns, clinker coolers, raw millsystems, finish mill systems, raw milldryers, raw material storage facilities,clinker storage facilities, finishedproduct storage facilities, conveyortransfer points, and bagging and bulk-loading and unloading systems. Forthese plants, EPA has establishedperformance standards that reflect thedegree of emission limitation achievablethrough application of the best availablecontrol technology.40

In accordance with the NSPS, noPortland cement plant owner oroperator may cause an affected facilityto exceed the particulate matteremission limits. Owners or operatorsmust monitor each kiln and clinkercooler stack using a continuous opacitymonitoring (COM) system (or a certifiedvisible emissions observer when a COMis not technically feasible). In all cases,each owner or operator must submitsemi-annual reports of excess emissions,defined as all 6-minute periods duringwhich the average opacity exceeds thestandard, and of equipmentmalfunctions. The emission standardsfor these facilities are listed in of 40 CFRpart 60, subpart F (Standards ofPerformance for Portland CementPlants). In addition, owners or operatorsmust record daily production rates andkiln feed rates and monitor the opacityof emissions.

The 1990 Clean Air Act Amendmentsestablished a program to regulateemissions of 189 toxic air pollutantsthrough technology-based standards (theNational Emission Standards forHazardous Air Pollutants (NESHAPs)).41

EPA is currently developing NESHAPsfor Portland cement plants that willaddress stack emissions and fugitiveemissions for the same facilities aslisted under the NSPS. The NESHAPs,however, will not apply totransportation, storage, or disposal ofCKD. Fugitive emissions from CKDlandfills, trucks and storage piles aresubject to today’s proposed rule.

In its 1995 Regulatory Determination,EPA stated that it would use asappropriate the various authoritiesunder the Clean Air Act to improveregulations for CKD to limit releases tothe air (61 FR 7375, February 7, 1995).EPA did consider the use of itsauthorities under the Clean Air Act inits rulemaking approach to address theair pathway of potential contaminantrelease. However, existing Clean Air Act

regulations do not fully addressemissions from CKD piles. Accordingly,EPA is proposing to establish RCRArequirements to address emissions fromtransportation, storage, and disposal ofCKD. To this extent, EPA is proposingto modify the conclusions of the 1995Regulatory Determination, and solicitscomment on that change. However, theAgency is not reversing the 1995 CKDRegulatory Determination entirely. EPAwill continue to rely on its authoritiesunder the Clean Air Act to control CKDemissions from stacks and pollutioncontrol devices (e.g., electrostaticprecipitators and baghouses).Subsequent examination, however,revealed that current implementation ofthese authorities, do not specificallyaddress CKD waste management.

Particulate emissions from cementmanufacturing facilities are potentiallysubject to requirements adopted as partof a State Implementation Plan (SIP),adopted by States in order to achieve ormaintain attainment of the NAAQS forPM, which are national standardsapplicable on a regional area basis.42

However, SIPs do not routinely addressemissions from landfills and storagepiles and, thus, would likely notprevent local PM10 exceedances such ascould result from fugitive CKDemissions. EPA believes that the risksfrom fugitive CKD from landfills, piles,and transportation, warrants control.Accordingly, EPA is today proposing toestablish air emission requirements forCKD under its RCRA authorities.

As mentioned earlier, cement kilnsthat burn hazardous waste currently areregulated under RCRA, andimplementing regulations found at 40CFR Part 266, Subpart H. The Clean AirAct Amendments of 1990 require EPAto develop technology-based emissionstandards for sources listed by theAgency, including cementmanufacturing plants. In April 1996, theAgency proposed revised stack emissionstandards and controls for cement kilnsthat burn hazardous waste. Thisproposal, which the Agency anticipatesfinalizing in late 1998, will requirecement kilns to control stack emissionsof mercury and dioxins and furans, aswell 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 proposedrule will improve air quality and reducehealth risks at and near CKD



43 Because the listing of mismanaged CKD is morestringent than the current Federal hazardous wasteregulations, States with base authorization mustrevise their Subtitle C program and seekauthorization for the CKD listing. However,although the States can use their existing solidwaste laws to comply with the requirements for theregulation of CKD, States are not required to seekplan approval for a CKD program under Subtitle D.

management units by reducing fugitiveemissions of CKD from these facilities.

VIII. State Authority

A. Statutory Authority

Under section 3006 of RCRA, EPAmay authorize qualified States toadminister and enforce the RCRAprogram within the State. (See 40 CFRPart 271 for the standards andrequirements for authorization.) Afterreceiving authorization, the State hasprimary enforcement responsibility,although EPA retains enforcementauthority under RCRA sections 3007,3008(a)(2), 3013, and 7003.

As mentioned above, although thePart 259 standards proposed todaywould likely be adopted as a matter ofState law, Federal inspection authoritywould still be available for facilitiesregulated under those standards.Because significant violations of thestandards would result in CKD beingconsidered mismanaged and, therefore,hazardous waste, EPA (as well as StateRCRA Subtitle C programs) would haveauthority to inspect such facilities todetermine whether they were handlinghazardous waste (i.e., mismanaged CKDwaste). If the person managing CKDwaste is managing CKD inconsistentlyor in a manner that does not complywith the Part 259 standards, it would besubject to Federal enforcement underregulations proposed today in§ 261.4(8)(ii), to compel compliancewith RCRA Subtitle C requirementsproposed today in Part 266.

Prior to the Hazardous and SolidWaste Amendments of 1984 (HSWA), aState with final authorizationadministered its hazardous wasteprogram entirely in lieu of the Federalprogram in that State. The Federalrequirements no longer applied in theauthorized State, and EPA could notissue permits for any facilities located ina State with permitting authorization.When new, more stringent Federalrequirements were promulgated orenacted, the State was obligated to enactequivalent and no less stringentauthority within specified time frames.These new Federal requirements did nottake effect in an authorized State untilthe State adopted the requirements asState law and received authorization toimplement the new requirements.

In contrast, under section 3006(g) ofRCRA, 42 U.S.C. 6926(g), newrequirements and prohibitions imposedby HSWA take effect in authorizedStates at the same time as they do inunauthorized States, if the newrequirements are more stringent thanthe previous requirements. EPA

implements these new requirementsuntil the State is authorized for them.

Authorized States are required tomodify their programs only when EPApromulgates Federal standards that aremore stringent than existing Federalstandards. Section 3009 of RCRA allowsStates to impose standards morestringent than those in the Federalprogram (see 40 CFR 271.1(I)). Federal(both HSWA and pre-HSWA)regulations that are considered lessstringent are optional for the authorizedStates to adopt, and do not go into effectin authorized States until those Statesadopt them and are authorized toimplement them.

B. Effect of Today’s Proposed RuleThe RCRA sections of today’s

proposal are promulgated in partpursuant to pre-HSWA, and in partpursuant to HSWA. Pursuant to pre-HSWA authority, the proposal modifiesthe rule exempting CKD from hazardouswaste regulation under § 261.4(b)(8),exempts from Subtitle C CKD that iseither (a) managed in accordance withcertain standards, or recycled or usedfor certain other beneficial purposes(§ 261.4(b)(8)), and lists as hazardouswaste CKD that is not managed incompliance with the proposedstandards. The proposal also includestailored Subtitle C regulations fornonexempt CKD (noncharacteristic CKDand characteristic CKD from kilnsburning non-hazardous waste which donot meet the proposed managementstandards) under Subpart I of 40 CFRPart 266. Characteristic CKD from kilnsburning hazardous waste is not affectedby this proposed rule and still is subjectto full RCRA Subtitle C requirements asset forth in 40 CFR 266.112. The tailoredSubtitle C standards are promulgated inpart based on EPA’s general pre-HSWAauthority to set management standardsfor facilities that manage hazardouswaste, and in part on the authority insection 3004(x), a HSWA provision, tomodify certain requirements that wouldotherwise apply to any hazardous waste.

The portion of this proposal that listsnonexempt CKD as hazardous waste ismore stringent than the current Federalrequirements. Section 271.21(e)(2) ofEPA’s State authorization regulations(40 CFR Part 271) requires that Stateswith final authorization modify theirprograms to reflect Federal programchanges and submit the modifications toEPA for approval. The States mustmodify their programs and obtainauthorization to include CKDrequirements that are equivalent and notless stringent than the EPA’srequirements for CKD. The proceduresand time frames for State program

modifications are described in 40 CFR271.21. The deadline by which theStates must modify their programs toadopt this proposed regulation, if it isadopted as a final rule, will bedetermined by the date of promulgationof the final rule in accordance with§ 271.21(e)(2). Once EPA approves themodification, the State requirementsbecome RCRA Subtitle C requirements.

Because the tailored regulationspromulgated under both pre-HSWA andHSWA authorities are less stringentthan full RCRA Subtitle C, States are notrequired to adopt the tailoredregulations. While HSWA aspects of arule usually become effectiveimmediately, the only effect of thetailored regulations here is to relax fullRCRA Subtitle C requirements for CKDfailing to meet management standards inStates authorized to regulate CKD. Theflexibility provided by these tailoredregulations is irrelevant until the Statesrevise their programs and becomeauthorized to regulate CKD.

Although the States do not have toadopt the tailored regulations proposedtoday under Part 259, EPA stronglyencourages States to do so. The tailoredregulations would contribute to moreefficient State programs because theyminimize the cost of compliance whileproviding sufficient protection ofhuman health and the environment.

States seeking authorization underSubtitle C do not have to adopt newlaws and regulations before submittingtheir authorization package to EPA forapproval. States may use their existinglaws and regulations, such as their solidwaste laws,43 as long as those laws andregulations cover all of the requiredelements for regulating CKD as part ofthe RCRA Subtitle C program.

IX. Regulatory Requirements

A. Regulatory Impact Analysis Pursuantto Executive Order 12866

Under Executive Order No. 12866 (58FR 51735, October 4, 1993), EPA mustdetermine whether a regulatory action is‘‘significant.’’ The Order defines a‘‘significant’’ regulatory action as onethat ‘‘* * * is likely to result in a rulethat may: (1) Have an annual effect onthe economy of $100 million or more oradversely affect, in a material way, theeconomy, a sector of the economy,productivity, competition, jobs, the



44 A small number of additional facilities could beaffected if they were to loose off-site markets forCKD due to the Agency’s proposed standards foruse as an agricultural lime substitute.

environment, public health or safety, orState, local, or tribal governments orcommunities; (2) create seriousinconsistency or otherwise interferewith an action taken or planned byanother agency; (3) materially alter thebudgetary impact of entitlements,grants, user fees, or loan programs or therights and obligations of recipients; or(4) raise novel legal or policy issuesarising out of legal mandates, thePresident’s priorities, or the principlesset forth in the Executive Order.’’

Pursuant to the terms of ExecutiveOrder 12866, the Agency hasdetermined that this rule is a significantregulatory action because it raises novellegal or policy issues arising out of legalmandates, the President’s priorities, orthe principles set forth in the ExecutiveOrder. Changes made in response toOMB suggestions or recommendationsare documented in the public recordand are available in the docket for thisrule. Although today’s rule is expectedto affect the economy by substantiallyless than $100 million per year, theAgency conducted a relatively detailedcost and impact study to evaluate theeffects of the rule on the U.S. Portlandcement industry and the economy.

1. Scope and Approach for EstimatingEconomic Costs and Impacts

As described in Section III.G. (Today’sApproach—Exclude Properly ManagedCKD From Hazardous Waste Listing) ofthis preamble, today’s proposed rulecalls for a flexible approach to managingland-disposed CKD, a policy tailored tosite-specific cement plant, climate, andgeophysical conditions. In this context,the Agency has attempted to estimate,individually for each plant, the changesin management practices that might berequired to meet the performance-basedobjectives of the proposed policy, andthen to estimate the costs for carryingout these changes. This requires: first, areasonably detailed understanding ofcurrent ‘‘baseline’’ CKD wastegeneration and management practices;second, a means of simulating likelyplant-specific practice changes; andthird, an approach to estimate the costsof the projected changes.

a. The Regulatory BaselineThere are currently 110 Portland

cement plants in the United States andPuerto Rico. Based on previous work forthe Report to Congress and RegulatoryDetermination, the Agency had acquiredan extensive data base on generalcement plant characteristics, CKDgeneration and management practices,and locational circumstances. Generalplant-specific data on the types,location, and capacity of cement plants

is cataloged and updated annually bythe American Portland CementAssociation (APCA). In addition, theAPCA conducted a detailed industrysurvey of plant CKD generation andmanagement practices for the year 1995,and information from this survey,together with follow-up informationfrom member companies of the Non-Hazardous Burner CKD Coalition, wasused to update and expand the Agency’sfacility-specific data base on wastegeneration. Thus, the combined 1990and 1995 survey data on CKDgeneration and disposition wasavailable for 108 of the 110 cementplants in the cost study.

The 1995 baseline survey resultsindicated that 24 of the 110 plants(22%) recycle all collected dust back tothe kiln, and an additional 12 plants(11%) reported shipping all generateddust off-site for beneficial use. For thepresent impact analysis, the Agencythus defined the potentially affectedcement plant universe to include theremaining two-thirds of the plants, i.e.,the 74 facilities currently disposing ofCKD on-site, with a combined annualCKD land-disposal requirement of 3.3million metric tons in 1995.44 Thesefacilities employ on-site disposal forCKD quantities ranging from less than1,000 metric tons per year up to morethan 200,000 tons per year. It is alsopossible that some off-site CKD marketchanges could result from the proposedpolicy, thus altering CKD disposalrequirements for individual plants. Thispossibility is discussed further below.

With respect to baseline managementpractices at individual plants, theAgency had to rely primarily on theearlier 1990 survey information whereavailable, or to assume typical baselinepractices for many plants based onAPCA-provided summaries of industry-wide 1995 survey information whichcharacterized the general distribution oftypical current practices but not plant-specific information. Based on availableinformation, EPA then categorized eachof the 74 potentially affected plants intoone of nine prototype baseline groupsfor purposes of estimating baseline CKDmanagement costs. The nine baselinegroups differed according to threegeneric types of disposal configuration(placement in a quarry, land pile, orcombination in-ground and land pile)and three degrees of engineering andoperational complexity (‘‘low,’’‘‘medium,’’ or ‘‘high’’), depending on

the types and degrees of release-prevention practices employed.

b. Projecting Plant-Level ComplianceResponses

Under a tailored management policy,the new compliance requirements forindividual cement plants could varysubstantially from State to State,depending on current baselineregulations, or from plant to plant evenwithin a given State, depending onplant-specific waste quantities andmanagement practices and localgeological conditions. Thus, someplants will require little or no change inpresent practices while others mayrequire an extreme change fromessentially simple open dumping oftheir CKD up to and including anengineered land disposal designequivalent to the Federal municipalsolid waste landfill technical standards.In rare situations, plants with noavailable on-site landfill space or plantslocated in areas of highly adversegeological conditions may be required todispose of CKD in off-site municipal orapproved industrial landfills.

For purposes of simulating plant-specific compliance responses underthese highly variable and in many casesuncertain conditions, the Agency madethe simplifying assumption that thefinal compliance outcome for each plantwould fall into one of four compliancegroups or scenarios. Three compliancedesigns varied primarily by degree ofcontrol measure required to meet theregulatory performance criteria. A ‘‘CKDLow’’ design requiring relatively simplebut comprehensive measures forcontrolling releases to the air, groundwater and surface water, could besatisfactory, for example, under localconditions with high depth to groundwater and low rainfall. A ‘‘CKD High’’design, employing a more extensiveliner and closure-cover configuration,was assumed as an intermediate designto limit or prevent infiltration ofleachate. The most extensive design isthe ‘‘Subtitle D Default,’’ equivalent tothe municipal landfill defaultrequirement defined by today’s rule. Allthree of these designs were costed in amono-pile configuration as the least-costly available option. As a fourthgeneric option for cost-estimatingpurposes, the Agency estimated off-sitedisposal in a commercial landfillcertified for contaminated media toaccommodate facilities with inadequatelandfill space or extremely adverseenvironmental locations that mightpreclude continued on-site disposal.

In assigning each of the 74 plants toone of these four compliance options,the Agency applied judgements based



on general knowledge and primarilypublic information regarding localgeological conditions that would affectthe need for groundwater protection. Inaddition, two specifically conservativeassumptions affecting compliance costswere employed. The first assumed thatdisposal in quarries would not beallowed; the second assumed that insituations where karst terrain underliesa potential on-site land disposallocation, the most extensive Subtitle Ddefault design would be required forcompliance. Since most baselinedisposal is in quarries and a majority ofcement plants are located over karstconditions, these assumptions will tendto overstate the degree of changerequired and the Agency’s estimatedcost of compliance for some fraction ofthe plants.

c. The Cost and Impacts ModelsTo estimate individual plant CKD

disposal costs for both baseline andcompliance scenarios, EPA adapted andupdated the engineering costing modeloriginally developed for the municipallandfill regulatory impact assessment.Essentially, the revised model sizes,designs, and calculates the capital andoperating costs for specified landdisposal options, including quarries,monopiles, and combination landfill/pile alternatives, and a wide variety ofpossible leachate and air emissionrelease/control technologies, during theactive-life, closure, and post-closureproject phases. To estimate the costs ofcomplying with today’s rule, CKDmanagement costs were estimated twicefor each plant, first for the chosenbaseline practice and then for theprojected compliance design. Thedifference in cost between the two

estimates is the Agency’s incrementalcompliance cost estimate for each plant,the results of which are summarizedbelow.

Additional details regarding the studydesign, baseline data, and engineeringand costing assumptions for the study,as well as the estimated baseline costsand compliance costs for each of the 110Portland cement plants, are presented inthe technical background documenttitled Compliance Cost Estimates for theProposed Land Management Regulationof Cement Kiln Dust (April 10, 1998)located in the RIC docket for today’srule.

In a second phase of the economicimpact assessment, the Agencyemployed a Portland cement industrymarket impacts model designed toproject regional cement price changes,plant capacity use changes, kilnclosures, and shifts in internationalshipments. This industry or market-level impacts model was originallydeveloped by the Agency’s Office of AirQuality Planning and Standards for usein assessing cement industry impacts ofproposed national emission standardsfor hazardous air pollutants. Themethodology for estimating cementindustry impacts, together with theresults for 20 cement marketing regionsand the United States as a whole, iscontained in the document titledRegulatory Impact Analysis of theCement Kiln Dust Rulemaking (June1998) located in the RIC docket for thisrule.

2. Summary of Cost and Impact Results

a. Nationwide Compliance Costs

Using the methods and data describedabove, the Agency estimates that today’s

rule would require incrementalcompliance costs for the Portlandcement industry of about $44 millionper year. These cost increases wouldinitially fall on 68 of the 110 U.S. andPuerto Rican plants that currentlymanage CKD on site. Thirty-six of theremaining 42 plants would not have toundergo changes in managementpractices, either because they canrecycle all collected dust back to thekiln or because they have off-sitemarkets for all generated dust. In thecase of the six remaining plants—allwith small CKD quantities—the Agencyestimates that off-site Subtitle D landfilldisposal could be obtained at costsapproximately at or below their currentbaseline costs. For the 68 negatively-affected plants, the average added costper plant would be approximately$646,000 per year, or just over $13 permetric ton of CKD. For these 68 plants,estimated annual compliance costsranged from under $100 thousand toover $3.5 million per year. Relative toits annual value of cement sales, theaverage affected plant would faceadditional costs of just under twopercent of sales revenues.

Due to the wide variability in plantcapacities, net CKD-to-clinker ratios,and required management practicechanges, these costs would fall veryunevenly among plants in the industry.The following table summarizes thedistribution of costs across all plants inthe industry, expressed as thepercentage ratio of incrementalcompliance cost to annual Portlandcement sales revenues at 1995 pricesand capacity utilization levels.

TABLE 3.—INDUSTRY DISTRIBUTION OF COST AS A PERCENT OF SALES

$Cost/$sales Number ofplants

Percent ofplants

Cumulativepercent

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 plantsmay be either over-or understated, forvarious reasons the Agency believes thatthe pattern of compliance costsestimated here represents a ‘‘high end’’projection for the industry as a whole.First, due to a lack of detailed site-specific geophysical data, the defaultassumption was made that any plant

currently disposing of dust in a quarrywould no longer be able to continuemanaging in the quarry. In reality, theproposed rule would only apply, on asite-specific basis, to management in aquarry where the natural (unpumped)ground-water level would lie above thebase of the disposal area. Similarly, forplants located in areas of karst terrain

(based on generally available regionalgeological mapping), the defaultassumption was made that all suchplants would need to utilize a fullmunicipal solid waste landfill defaultdesign, the most costly complianceoption. In practice, many such plantsmay face less expensive compliancedesigns based on more detailed local



knowledge of the existence andhydrology of the underlying karsttopography. Since a substantial majorityof potentially affected cement plants fallinto one or both of these categories, theassumed compliance option forpurposes of the costing study wasbiased towards the high-end engineeringdesign. In a few instances, it appearedfrom available information that no on-site option might be viable. In anotherrespect, the Agency’s costs are alsobiased upwards due the fact that plant-specific data on current managementpractices was lacking for most plantsand, as noted above, reliance was placedprimarily on information from a 1990survey. Some States have been activelyregulating CKD placement in theinterim, or are in the process of activelyupgrading disposal regulations. Thus,EPA’s outdated information on baselinepractices for those plants means that, foran unknown but not insignificantnumber of plants, the incrementalcompliance costs will have beenoverstated in this analysis becauseseveral of these plants would alreadyhave become partially or substantiallyin compliance with the performancestandards being proposed today.

b. Economic ImpactsThe second phase of industry cost and

impact assessment employed a Portlandcement industry impacts model toproject regional cement market shiftsand impacts that could be expected toresult from the estimated pattern ofindividual plant-level compliance costincreases. In general, a major part of thecompliance cost burden will be shiftedto cement consumers (in both theprivate and public sectors) in the formof higher prices for construction goodsand to government in the form ofsomewhat reduced corporate taxes. Theremaining burden will be born by thatsegment of the industry most directlyaffected by the highest compliancecosts. On average, cement industryprofits will be reduced, at least for someperiod of time, but several plants andfirms—those with little or nocompliance cost burden—will seehigher capacity utilization and profitsdue to the upward shift in regionalprices brought about by the shifting ofcosts by affected plants.

Based on this model, which projectsintermediate term effects but does notaccount for longer term technologyinnovation or new capacity expansionsat lower cost units, the Agencyestimated the following cement marketeffects from the proposed rule.

Cement Prices. Nationally, cementprices are projected to increase overtheir 1995 baseline by less than one

dollar per metric ton, or about 1.3percent. Regionally, price increaseswould range from about 1.1 to 3.8percent across the twenty cementmarket regions of the country.

Cement Capacity and ProductionChanges. Five to seven kiln closures,including one possible plant closure,could result from today’s rule. All told,these capacity reductions together withnet capacity utilization changes in eachregion, associated with or in response tothe market price increases noted above,could result in domestic outputreductions of about 2.6 percent of the1995 baseline production on a nationalbasis.

Cement Imports. Price increases byaffected domestic cement producers willbe tempered by increased foreignimports, which are projected to increaseby over 800 thousand metric tons (6.2percent).

Employment Effects. Nationally,employment reductions in the primarycement industry equivalent to about 500full-time jobs would be associated withthe production changes noted above.

Again, it bears emphasis that theAgency believes these impact estimatesto be high end estimates, both becauseof the default assumptions employed inthe plant-level engineering costestimates themselves and because themarket impacts model does not accountfor longer-term industry responses tothe initial compliance cost effects.

3. Benefits of the RulemakingThe Agency has undertaken several

efforts to estimate the impacts from thebaseline management of CKD and, thus,identify the benefits from today’s rule.In support of the Report to Congress onCement Kiln Dust and the RegulatoryDetermination, the Agency performedan individual risk analysis to determinewhether current CKD managementpractices may impact nearbyindividuals, including highly exposedindividuals (e.g., subsistence farming).For today’s proposed rulemaking, theAgency built upon the previousindividual risk analysis to estimatepopulation-level impacts associatedwith current management practices (seeSection II.C.4.a.—Population Risks). TheAgency also conducted a screening levelanalysis to determine whether currentmanagement practices may result ineffects to ecological receptors. TheAgency, however, has not quantitativelyassessed how the proposed standardswill reduce the human health,ecological, and other damagesassociated with current CKDmanagement. For the purposes of thisanalysis, an upper-bound estimate of thebenefits provided by this rule is to

assume that all of the impacts describedbelow are avoided.

For the 1993 Report to Congress and1995 Regulatory Determination, theAgency modeled individual risks fromdirect and indirect pathways for 83plants. The Agency concluded that therisks from direct pathways (i.e.,drinking water ingestion, incidentalingestion, and chemical inhalation)were low or negligible. The Agencycaveated these conclusions by notingthat (1) about half of the plants areunderlain by limestone formations inareas of karst landscape and may besusceptible to fissures and hydrauliccharacteristics that allow leachate todirectly enter groundwater withoutdilution or attenuation and cannot bemodeled with current techniques; (2)empirical evidence indicatedgroundwater contamination in areas ofboth karst and non-karst terrain; and (3)modeling results for fine particulateemissions for 28 cement plants out of 52modeled may have exceedances ofNAAQS at plant boundaries and mayresult in risks from fine particulateinhalation at nearby residences. Today’sproposed rule addresses each of theseareas and should result in the avoidanceof these individual-level impacts. Forthe indirect pathways, the Agencyconcluded that releases from about 12percent of the 83 plants studied mayresult in cancer risks greater than1×10¥5 for highly exposed individuals(i.e., subsistence fishers and subsistencefarmers). Similarly, the Agencyconcluded that releases from about 12percent of the 83 plants may result innoncancer hazard ratios greater than 1.0for highly exposed individuals. Today’sproposed action should help preventthese risks to highly exposedindividuals.

As described in Section II.C.4.a.—Population Risks, the Agency expandedthe individual risk assessmentconducted for the 1993 Report toCongress and 1995 RegulatoryDetermination to evaluate population-level risks. Based on this expandedanalysis, the proposed rule may resultin a reduced risk of 0.0004 to 0.003cancer cases per year (best estimate—0.0006) and 29 to 315 fewer persons(best estimate—43) exposed to potentialnon-cancer health effects due to foodchain exposures (i.e., vegetables, beef,and/or milk) to ‘‘backyard’’ gardenersand subsistence farmers. In addition, thepopulation analysis indicated thatbetween 669 and 5,895 recreationalfishers (best estimate—999) would avoidexposure to contaminant levels that mayresult in noncancer health effects. Thepopulation analysis indicated that 18 to4,118 individuals (best estimate—2,378)



would avoid exposure to particulatematter in excess of the NAAQS.

As described in Section II.C.4.b.—Additional Ground-water Modeling, theAgency conducted additionalgroundwater analyses to determinewhether the high alkalinity leachateassociated with CKD may result inelevated groundwater concentrations ofconstituents of concern. The analysisindicated that the highly alkaline natureof CKD leachate resulted in elevatedlevels of lead, chromium, and cadmiumin the groundwater and suggested thatberyllium and barium also may be moremobile in CKD leachate. The analysisalso indicated that all of these metalswere more likely to be transported to thegroundwater. Thus, today’s actionshould help prevent contaminated CKDleachate from impacting groundwaterresources.

The proposed rule will provide otherbenefits that have not been estimatedquantitatively, but can be qualitativelydescribed. These include protectinggroundwater resources near cementplants, including resources located inareas of karst terrain; preventing thecorrosion of water distribution pipes bysource waters with pHs elevated by CKDleachate; and protecting ecologicalreceptors from adverse effects resultingfrom the atmospheric deposition andgroundwater discharge of CKD.

B. Regulatory Flexibility AnalysisPursuant to the Regulatory Flexibility

Act (5 U.S.C. 601 et seq.) as amended bythe Small Business RegulatoryEnforcement Fairness Act of 1996(SBREFA), whenever an agency isrequired to publish a notice ofrulemaking for any proposed or finalrule, it must prepare and make availablefor public comment a regulatoryflexibility analysis that describes theeffect of the rule on small entities (i.e.,small businesses, small organizations,and small governmental jurisdictions).However, no regulatory flexibilityanalysis is required if the head of anagency certifies the rule will not have asignificant adverse economic impact ona substantial number of small entities.

SBREFA amended the RegulatoryFlexibility Act to require Federalagencies to provide a statement of thefactual basis for certifying that a rulewill not have a significant economicimpact on a substantial number of smallentities. The following discussionexplains EPA’s determination.

1. Identification of Small CementCompanies

The Small Business Administration(SBA) has defined small companies inthe Portland cement industry to include

independent companies with less than750 employees. At the time of the CKDRegulatory Determination, the Agencyhad identified and published a list ofpossible small cement companies basedon initial research in Dun andBradstreet and similar corporatebusiness publications. Subsequently,both the APCA and the Non-HazwasteBurner CKD Coalition reviewed thisinitial list and provided changes basedon their own research and consultationswith member companies. This resultedin a mutually agreed-upon list of eightsmall U.S. cement companies, eachoperating a single plant, in an industrycomprised of 42 companies operating110 plants in the U.S. and Puerto Rico.

2. OutreachIn addition to working with industry

groups to identify small cementcompanies, in July 1997 the Agency senta letter to the president of each of theeight small companies explaining theSBREFA process, outlining severalpossible CKD regulatory approaches,and requesting comments andsuggestions regarding these options. Inaddition, those small companies thathad not previously responded to the1995 APCA CKD generation andmanagement practices survey wereurged to return a completed APCAquestionnaire to EPA to facilitate a morerealistic cost and impact assessment. Inresponse, all eight companies eitherreturned their comments andquestionnaires directly or provided theirinput indirectly through the Non-Hazwaste Burner CKD Coalition. Inaddition, six of the companies presentedtheir own estimates of compliance costsfor the most stringent of the EPAregulatory options. The Coalitionsubsequently presented SBREFA policyarguments and recommendations to theOSWER Deputy AssistantAdministrator.

3. The Agency’s RFA ScreeningAnalysis

Based on the APCA Survey responsesand the cost analysis describedpreviously, the Agency completedplant-specific compliance cost estimatesfor each of the eight small companies.Where relevant for individual plants,major compliance costs includedengineered land disposal units withground water monitoring, pelletizingand compaction of the CKD, closure andpost-closure management for disposalunits, and covers on trucks and thewatering of plant roads to controlairborne dust. The Agency did notinclude costs for storage sheds and silosthat might be required at some plants forcontrolling dust that could be blown

from CKD stored prior to shipment foroff-site use. If needed, the cost of suchtemporary storage units should berelatively modest, under $10,000 peryear on an annualized basis. Insummary, for the eight small companies:

• Four would not be negativelyaffected (unless they were to lose off-siteCKD markets).

• Three would have incrementalcompliance costs as a percent ofbaseline sales between 0.3% and 1.0%.

• One small-company would havecosts greater than 1.0%, but still lessthan 2% of baseline sales.

As noted, six of the eight smallcompanies also compiled and presentedindependent cost estimates in responseto EPA’s letter requesting comments onalternative regulatory approaches. Thecompanies’ worst case incrementalcompliance cost projections weresomewhat higher than EPA’s estimates,with one company under one percent ofsales, four in the one-to-two percentrange, and one between three and fourpercent. The greatest part of thedifference between these and the EPA’sestimates stems from the companies’assumption that all of the five smallcompanies that presently market CKDfor off-site uses would lose their entireoff-site CKD markets as a result of therule. This assumption is particularlycritical for three of the six plants thatcurrently ship all of their CKD to off-siteuses. In addition, the companies’projections also assumed the worst-case:that full municipal solid waste landfilldesign standards would be required,rather than the site specific controlmeasures, tailored to local conditions,which are proposed in today’s rule. Onthis basis, the companies’ estimatesprojected an implicit compliance costdistribution in which at least four of thesix companies would have costsbetween one and two percent of salesrevenue, and one would see costs inexcess of three percent.

While this double worst-casecombination can not unequivocally beruled out for each and every small plantindividually, the Agency believes that itrepresents an extremely unlikelyscenario for projecting impacts of therule on the small companies as a group.In particular, there is little reason toassume a total loss of off-site marketsdue to the Subtitle C ‘‘stigma.’’ TheAgency is not proposing to list orotherwise regulate off-site beneficialuses generally. The only off-site useproposed for regulation is that of anagricultural lime substitute, and theAgency does not have informationindicating that any of the smallcompanies currently ship off-site forthis use. Furthermore, current levels of



45 This report is available in the RIC docket (No.F–4–C2A–0016).

off-site CKD uses are continuing underthe specter of EPA’s RegulatoryDetermination decision to regulate CKD,and thus one might argue that anystigma associated with Federalregulation of CKD could already be ineffect. For these and other reasonspreviously discussed, the Agencybelieves that its approach, based oncontinuance of off-site use markets andassuming location-specific flexibility inState program implementation, providesfor a more realistic high end projectionof initial compliance cost effects.Although the Agency believes that thestigma of Subtitle C will not result inthe loss of off-site markets, EPA requestscomment specifically on whether thisrule will affect the availability ofmarkets for beneficial use of CKD, andif so, to what extent and for whichparticular uses.

4. Agency Findings and ConclusionsRegarding SBREFA Impacts

The Agency’s RFA screening studydoes not indicate a significant negativeimpact on a substantial number of smallcompanies as a likely outcome of theproposed rule. With respect to the per-cent-of-sales cost criterion, EPA’s highend engineering cost estimates projectthat not more than one or two smallcompanies will experience initialcompliance costs greater than onepercent of baseline sales. In addition,the economic impact analysis projectsthat regional cement price increases dueto shifting of initial compliance costs tocement consumers will partially, if nottotally, offset higher costs for smallcompanies that might be required toalter their CKD management practices.In fact, several of the small companies—articularly those that do not land-dispose any wasted dust—ould thusrealize higher net annual profits as aresult of these market impacts.

For the reasons discussed above, Ihereby certify that this rule will nothave a significant adverse economicimpact on a substantial number of smallentities. This rule, therefore, does notrequire a regulatory flexibility analysis.

C. Environmental Justice—Applicabilityof Executive Order 12898

As part of its analysis of risks tohuman health posed by CKD, theAgency investigated whether there areenvironmental justice issues associatedwith the management of CKD. ExecutiveOrder 12898, dated February 11, 1994,and titled ‘‘Federal Actions to AddressEnvironmental Justice in MinorityPopulations and Low-IncomePopulations,’’ provides for Federalagencies to consider environmentaljustice issues. As explained in its

Regulatory Determination (60 FR 7371,February 7, 1995), EPA announced theavailability of a report titled Race,Ethnicity, and Poverty Status ofPopulations Living Near Cement Kilnsin the United States. 45 In the report, theAgency examined the demographicsaround cement plants in order todetermine if there exist any trends at thenational level which indicate theremight be environmental justiceconsiderations with respect to cementkiln dust. EPA’s study includesnumerous analyses and summaries ofdemographic data, and is available inthe RCRA docket. The results of thedemographic studies of populationssurrounding cement kilns indicate thatcement plants are for the most partlocated in rural areas populated byvaried types of communities. While thedata do indicate that there areindividual communities with highpercentages of minority or low incomepopulations surrounding specificcement kilns, they do not suggest thatspecific minorities or poverty-levelpopulations are overly represented atthe national level.

Today’s rule is intended to reducerisks from the management of CKD andto benefit all populations. It is notexpected to cause anydisproportionately high and adversehuman health and environmental effectson minority or low income communitiesversus affluent or non-minoritycommunities. The Agency solicitscomment and input on the implicationsof this rule for environmental justice,from all interested persons, includingmembers of the environmental justicecommunity and members of theregulated community. The Agencyencourages all interested parties toprovide comments or furtherinformation that might assist the Agencyin further assessing impacts on minorityor low-income populations.

D. Protection of Children—Applicabilityof Executive Order 13045

The Executive Order 13045, entitled‘‘Protection of Children fromEnvironmental Health Risks and SafetyRisks (62 FR 19885, April 23, 1997)applies to any rule that EPA determines(1) is ‘‘economically significant’’ asdefined under Executive Order 12866,and (2) the environmental health orsafety risk addressed by the rule has adisproportionate effect on children. Ifthe regulatory action meets both criteria,the Agency must evaluate theenvironmental health or safety effects ofthe planned rule on children; and

explain why the planned regulation ispreferable to other potentially effectiveand reasonably feasible alternativesconsidered by the Agency.

This proposed rule is not subject toE.O. 13045 because this is not aneconomically significant regulatoryaction as defined by E.O. 12866.

However, the Agency has reason tobelieve that the environmental healthrisk addressed by this action may havean effect on children. The Agency hasevaluated the environmental healtheffects of CKD on children. Thesedocuments are are summarized anddiscussed below and copies have beenplaced in the RCRA docket for thisaction.

Children’s Health Protection. Inaccordance with § 5(501), the Agencyhas evaluated the environmental healtheffects for CKD on children, and foundthat generally the risks to children aresimilar to risks estimated to adults.However, the Agency noted thatexposure to CKD may result in elevatedblood-lead levels in children that livenear cement plants that manage CKD.The Agency evaluated children’s healththrough three mechanisms: the riskassessment to support the Report toCongress, the examination of healtheffects associated with lead, and theassessment to set risk-basedconcentration limits for hazardousconstituents in CKD used as anagricultural liming agent.

In the risk assessment to support theReport to Congress, the Agencyevaluated the risks from exposure toCKD through incidental ingestion of soiland dermal absorption of contaminantsin CKD. For these exposure pathways,the Agency adjusted exposureparameters (e.g., ingestion rate, bodyweight) to reflect a five-year childhoodexposure. Based on this analysis, theAgency concluded that health effects tochildren through these exposure routeswere negligible. The analysis isdescribed in detail in the TechnicalBackground Document for the HumanHealth and Environmental RiskAssessment in Support of the Report toCongress on Cement Kiln Dust Waste—December 1993.

The Agency also evaluated effects ofexposure to CKD on blood-lead levels.For this analysis, the Agency estimatedconcentrations in air, soil, ground water,surface water, and diet using a fate andtransport model and then input theseconcentrations in the IntegratedExposure Uptake Biokinetic Model(IEUBK) to estimate potential blood-leadlevels for children near a cement plant.The analysis indicated that two of thefive modeled plants may result in blood-levels above 10 ug of lead/dL of blood,



46 Errata for this document are identified in theSupplemental Errata for this document areidentified in the Supplemental Errata Document forthe Technical Background Document for the Noticeof Data Avialability on Cement Kiln Dust—September 30, 1994.

47 Burden means the total time, effort, or financialresources expended by persons to generate,maintain, retain, or disclose or provide informationto of for a Federal Agency. This includes the timeneeded to review instructions; develop, acquire,install, and utilize technology and systems for thepurposes of collecting, validating, and verifyinginformation, processing and maintaininginformation, and disclosing and providinginformation; adjust the existing ways to complywith any previously applicable instructions andrequirements; train personnel to respond to acollection of information; search data sources;complete and review the collection of information;and transmit or otherwise disclose the information.

a level at which adverse effects tochildren may occur. Based on thisanalysis, the Agency noted that CKDmay contribute to elevated blood-leadlevels in children living nearuncontrolled CKD piles. This analysis isdescribed in detail in TechnicalBackground Document for the Notice ofData Availability to Support theRegulatory Determination on CementKiln Dust—August 31, 1994. 46

For the agricultural use riskassessment, EPA conducted a separateassessment of risk from hazardousconstituents (metals and dioxins) inCKD for the child of farmer receptorscenario. A detailed description of thisanalysis is provided in the RiskAssessment for Cement Kiln Dust Usedas an Agricultural Soil Amendment.Pathways evaluated for the child offarmer scenario include incidentalingestion of contaminated soil, ingestionof plants grown on amended soil, andproducts from animals raised on feedfrom CKD amended fields. For theseexposure pathways, the Agencyadjusted exposure parameters (e.g.,ingestion rate, body weight) to reflect an18-year childhood exposure. Exposuresto lead were evaluated separately forthis analysis. The IEUBK model wasused to evaluate lead exposure in youngchildren (birth to 7 years of age). Theconstituent concentration limitproposed for lead in todays rulemakingis based on EPA’s analysis of predictedblood lead levels in children due toingestion of CKD amended soil. Risksfrom other hazard constituents inagriculturally applied CKD did notdiffer significantly between childrenand adult exposure scenarios.

Although the Agency has noted thepotential for adverse effects to childrenbased on the current management ofCKD, today’s proposed rule will providemeasures to ensure the protection ofchildren’s health. In particular, theproposed management standards willlimit exposures via the ground waterroute and air pathway. In addition, theAgency believes that the storm-waterrun-off regulations will be adequate toprotect from exposures via the overlandrunoff routes. These measures will limituncontrolled releases from CKD piles,preventing children’s exposures, andthus, protecting children’s health.Finally, the development of risk-basedconcentration limits for hazardousconstituents in CKD used agriculturallywill ensure that children are adequately

protected against potentialenvironmental health risks from CKDused in this manner.

E. National Technology Transfer andAdvancement Act

Under section 12(d) of the NationalTechnology Transfer and AdvancementAct, the Agency is directed to usevoluntary consensus standards in itsregulatory activities unless to do sowould be inconsistent with applicablelaw or otherwise impractical. Voluntaryconsensus standards are technicalstandards (e.g., materials specifications,test methods, sampling procedures,business practices, etc.) that aredeveloped or adopted by voluntaryconsensus standard bodies. Whereavailable and potentially applicablevoluntary consensus standards are notused by EPA, the Act requires theAgency to provide Congress, throughthe Office of Management and Budget,an explanation of the reasons for notusing such standards. The Agency is notaware of any available or potentiallyapplicable voluntary consensusstandards that would be applicable tothe CKD issues addressed in thisproposed rule.

F. Unfunded Mandates Reform ActTitle II of the Unfunded Mandates

Reform Act of 1995 (UMRA), PublicLaw 104–4, establishes requirements forFederal Agencies to assess the effects oftheir regulatory actions on State, local,and tribal governments and the privatesector. Under section 202 of the UMRA,EPA generally must prepare a writtenanalysis, including a cost-benefitanalysis, for proposed and final ruleswith ‘‘Federal mandates’’ that mayresult in expenditures to State, local,and tribal governments, in the aggregate,or to the private sector, of $100 millionor more in any one year. Beforepromulgating an EPA rule for which awritten statement is needed, section 205of the UMRA generally requires EPA toidentify and consider a reasonablenumber of regulatory alternatives andadopt the least costly, most cost-effective, or least burdensomealternative that achieves the objectivesof the rule. The provisions of section205 do not apply when they areinconsistent with applicable law.Moreover, section 205 allows EPA toadopt an alternative other than the leastcostly, most cost-effective, or leastburdensome alternative if theAdministrator publishes with the finalrule an explanation why that alternativewas not adopted. Before EPA establishesany regulatory requirements that maysignificantly or uniquely affect smallgovernments, including tribal

governments, it must have developedunder section 203 of the UMRA a smallgovernment agency plan. The plan mustprovide for notifying potentiallyaffected small governments, enablingofficials of affected small governmentsto have meaningful and timely input inthe development of EPA regulatoryproposals with significant Federalintergovernmental mandates, andinforming, educating, and advisingsmall governments on compliance withthe regulatory requirements.

EPA’s analysis of compliance withUMRA found that the proposed actionimposes no enforceable duty on anyState, local, or tribal governments andtherefore does not include a Federalmandate that may result in estimatedcosts of $100 million or more to eitherState, local, or tribal governments in theaggregate. EPA also has determined thatthis rule contains no regulatoryrequirements that might significantly oruniquely affect small governments. Inaddition, as discussed above, the privatesector is not expected to incur costsexceeding $100 million. EPA hasfulfilled the requirement for analysisunder the Unfunded Mandates ReformAct.

G. Paperwork Reduction ActThe information collection

requirements in this proposed rule havebeen submitted for approval to theOffice of Management and Budget(OMB) under the Paperwork ReductionAct, 44 U.S.C. 3501 et seq. AnInformation Collection Request (ICR)document has been prepared by EPA(ICR No. 1870.01) and a copy may beobtained from Sandy Farmer by mail at:OPPE Regulatory Information Division,U.S. Environmental Protection Agency(2137), 401 M Street S.W., WashingtonD.C. 20460, or by calling the Agencydirectly at (202) 260–2740. A copy mayalso be obtained by email [email protected], ordownloaded off of the internet at http://www.epa.gov/icr.

The bottom line annual burden 47 torespondents over three years is about4,000 hours with a cost ofapproximately $21 million.



Approximately 88%, or $18.5 million ofthe total cost is attributable to O&Mcosts (consultant fees, sampling fees,and mailing costs). The capital costsincurred by facilities for the installationof ground-water monitoring systems,and the acquisition of new filingcabinets are approximately $206thousand and $69 thousand per year,respectively. The bottom line annualburden to the Agency is about 1000hours, with a cost of approximately $43thousand, of which capital costs areinsignificant.

EPA estimates that for each cementkiln dust landfill unit, there will be anaverage reporting burden of about 30hours annually, which includes time forpreparing and submittingdemonstrations, notifications, andcertifications to the EPA RegionalAdministrator. EPA estimates that eachCKD landfill unit will incur an averageannual recordkeeping burden of about150 hours. This estimate includes timefor reading regulations, and preparingdemonstrations, notifications, andcertifications to be placed in theoperating record.

EPA estimates that cementmanufacturing facilities that do notoperate CKD landfills will incur anaverage reporting burden of less thanone hour annually, and a recordkeepingburden of about three hours annually.The recordkeeping burden estimateincludes time for reading theregulations, sampling and analyzingdust, and placing notations,certifications, and demonstrations in theoperating record.

EPA may not conduct or sponsor, anda person is not required to respond toa collection of information unless itdisplays a currently valid OMB controlnumber. The OMB control numbers forthe Agency’s regulations are listed in 40CFR Part 9 and 48 CFR Chapter 15.

Comments are requested on EPA’sneed for this information, the accuracyof the provided burden estimates, andany suggested methods for minimizingrespondent burden, including the use ofautomated collection techniques. Sendcomments 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 ofInformation and Regulatory Affairs,Office of Management and Budget, 72517th Street N.W., Washington D.C.20503 marked ‘‘Attention: Desk Officerfor EPA.’’ Please include the ICRnumber in any correspondence. SinceOMB is required to make a decisionconcerning the ICR between 30 and 60days after August 20, 1999, a commentto OMB is best assured of having its full

effect if OMB receives it by September20, 1999. The final rule will respond toany OMB or public comments on theinformation collection requirementscontained in this proposal.

H. Executive Order 12875: Enhancingthe Intergovernmental Partnership

Under Executive Order 12875, EPAmay not issue a regulation that is notrequired by statute and that creates amandate upon a State, local or tribalgovernment, unless the Federalgovernment provides the fundsnecessary to pay the direct compliancecosts incurred by those governments, orEPA consults with those governments. IfEPA complies by consulting, ExecutiveOrder 12875 requires EPA to provide tothe Office of Management and Budget adescription of the extent of EPA’s priorconsultation with representatives ofaffected State, local and tribalgovernments, the nature of theirconcerns, any written communicationsfrom the governments, and a statementsupporting the need to issue theregulation. In addition, Executive Order12875 requires EPA to develop aneffective process permitting electedofficials and other representatives ofState, local and tribal governments ‘‘toprovide meaningful and timely input inthe development of regulatory proposalscontaining significant unfundedmandates.’’

Today’s proposed rule implementsrequirements specifically set forth bythe Congress in RCRA without theexercise of any discretion by EPA.Accordingly, the requirements ofsection 3(b) of Executive Order 13084do not apply to this proposed rule.

I. Executive Order 13084: Consultationand Coordination with Indian TribalGovernments

Under Executive Order 13084, EPAmay not issue a regulation that is notrequired by statute, that significantly oruniquely affects the communities ofIndian tribal governments, and thatimposes substantial direct compliancecosts on those communities, unless theFederal government provides the fundsnecessary to pay the direct compliancecosts incurred by the tribalgovernments, or EPA consults withthose governments. If EPA complies byconsulting, Executive Order 13084requires EPA to provide to the Office ofManagement and Budget, in a separatelyidentified section of the preamble to therule, a description of the extent of EPA’sprior consultation with representativesof affected tribal governments, asummary of the nature of their concerns,and a statement supporting the need toissue the regulation. In addition,

Executive Order 13084 requires EPA todevelop an effective process permittingelected officials and otherrepresentatives of Indian tribalgovernments ‘‘to provide meaningfuland timely input in the development ofregulatory policies on matters thatsignificantly or uniquely affect theircommunities.’’

Today’s proposed rule implementsrequirements specifically set forth bythe Congress in RCRA without theexercise of any discretion by EPA.Accordingly, the requirements ofsection 3(b) of Executive Order 13084do not apply to this proposed rule.

List of Subjects

40 CFR Part 259

Environmental protection,Administrative practice and procedures,Air pollution control, Reporting andrecordkeeping requirements, Wastetreatment and disposal, Water pollutioncontrol.

40 CFR Parts 261 and 266

Environmental protection, Hazardouswaste, Recycling, Reporting andrecordkeeping 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—Justificationfor CKD Listing

Subtitle C of RCRA, as amended,establishes a Federal program for thecomprehensive regulation of hazardouswastes. Hazardous waste is defined at section1004(5) of RCRA, 42 U.S.C. 6903(5) as: (1)those solid wastes which may cause orsignificantly contribute to an increase inmortality, serious irreversible illness, orincapacitating reversible illness; and (2)those solid wastes which may pose asubstantial present or potential hazard tohuman health or the environment whenimproperly managed.

Section 3001 of RCRA requires that EPAdefine which solid wastes are hazardous byeither identifying the hazardouscharacteristics of hazardous wastes or listingparticular hazardous wastes. Section 3001(a)of RCRA provides the Agency with flexibilityin deciding whether to list or identify a wasteas hazardous and to consider the need forregulation. Specifically, RCRA section 3001requires that EPA, in determining whether tolist a waste as hazardous waste, or tootherwise identify a waste as hazardouswaste, decide whether a waste ‘‘should besubject to the requirements of Subtitle C.’’Hence, RCRA section 3001 authorizes EPA todetermine when Subtitle C regulation isappropriate. The Agency may evaluate



wastes from either specific or nonspecificsources and decide to list a waste ashazardous if it meets one of the three criteriacodified at 40 CFR 261.11. The criteria foridentifying characteristics and for listingwastes as hazardous are: (1) wastes may beclassified as ‘‘characteristic’’ wastes if theyhave the properties described at 40 CFR261.21–261.24 which would cause them to beclassified as having the characteristics ofignitability, corrosivity, reactivity or toxicity;(2) wastes may be classified as acutelyhazardous if they are fatal to humans at lowdoses, lethal in animal studies at particulardoses designated in the regulation, or

otherwise capable of causing or significantlycontributing to an increase in serious illness;and (3) wastes may be listed as hazardous ifthey contain hazardous constituentsidentified in Appendix VIII of 40 CFR Part261 and the Agency concludes, afterconsidering eleven factors enumerated in 40CFR 261.11(a)(3), that the waste is capable ofposing a substantial present or potentialhazard to human health or the environmentwhen improperly managed. A substance islisted in Appendix VIII if it has been shownin scientific studies to have toxic,carcinogenic, mutagenic, or teratogeniceffects on humans or other life forms. One of

the factors the Administrator is to consideris the potential of the constituent (fromAppendix VIII to 40 CFR Part 261) or anytoxic degradation product of the constituentto migrate from the waste into theenvironment under the plausible types ofimproper management to which the wastecould be subjected (see 40 CFR261.11(a)(3)(iii)).

EPA has evaluated CKD against the listingcriteria and determined that CKD meets thecriteria at § 261.11(a)(3), as summarized inTable 1 follows:

TABLE 1.—CKD LISTING DETERMINATION RATIONALE

Criteria at § 261.11(a)(3) Rationale

Nature of the Toxicity Presented by the Constituents (§ 261.11(a)(3)(i)) CKD contains toxic metals and organics listed in Appendix VIII to Part261 for which non-cancer and cancer RfDs have been established.

Concentration of the Constituent in the Waste (§ 261.11(a)(3)(ii)) .......... Amount of Appendix VIII constituents in CKD are high due to massloadings into the cement manufacturing process.

Potential of the Constituent or Any Toxic Degradation Product of theConstituent to Migrate From the Waste Into the Environment UnderSpecified Types of Improper Management (§ 261.11(a)(3)(iii)).

The 13 cases of documented damage to ground water which are dis-cussed in today’s proposal, the Technical Background Document onGround Water Controls at CKD Landfills, the 1993 Report to Con-gress, and subsequent NODA, demonstrate a high potential for Ap-pendix VIII constituents to migrate from CKD into ground water. Asdiscussed in the EPA’s 1995 Regulatory Determination (60 FR7370), Agency modeling of risks to human health due to fine particu-late dust (10 microns or less) and 36 cases of documented damageto air demonstrate a high potential for contaminants to migrate intothe environment via fugitive dust emissions. Modeling results dis-cussed in the NODA on human health and environmental risk as-sessment (59 FR 47133) indicate human health risks of concernfrom CKD-derived chemical contaminants via indirect food chainpathways.

The Persistence of the Constituent or Any Toxic Degradation Productof the Constituent (§ 261.11(a)(3)(iv)).

Metals found in CKD are highly persistent in the environment.

The Potential for the Constituent or Any Toxic Degradation Product ofthe Constituent to Degrade Into Non-Harmful Constituents and theRate of Degradation (§ 261.11(a)(3)(v)).

Constituents of concern in CKD are primarily metals which, unlikeorganics, do not have the potential to degrade into non-harmful con-stituents.

Degree to Which the Constituent or Any Degradation Product of theConstituent Bioaccumulates in Ecosystems (§ 261.11(a)(3)(vi)).

Where CKD is used in agricultural applications, there is a potential for2,3,7,8-substituted dioxin and 2,3,7,8-substituted dibenzofuran, whichare found in CKD, to bioaccumulate in living tissue.

Plausible Types of Improper Management to Which the Waste CouldBe Subjected (§ 261.11(a)(3)(vii)).

As discussed in the Report to Congress and subsequent RegulatoryDetermination (60 FR 7368), CKD is typically managed on-site in un-lined and uncovered landfills and piles located in abandoned quar-ries, retired portions of operating quarries or nearby ravines. Someactive piles are also managed underwater or adjacent to surfacewater and/or agricultural lands. A review of 1995 CKD managementpractices suggested that, overall, management practices had notsubstantially changed from those reported in the 1993 Report toCongress. Current management practices are similar to past man-agement scenarios, which are inadequate to limit contaminant re-leases from CKD management units. Moreover, additional damagecases have been identified which suggest current management prac-tices are inadequate.

Quantities of the Waste Generated at Individual Generation Sites or ona Regional or National Basis (§ 261.11(a)(3)(viii)).

Cement plants average 47,000 metric tons CKD generated per year(1995 average). In 1995, the cement industry generated an esti-mated 4.1 million metric tons of CKD.

Nature and Severity of the Human Health and Environmental DamageThat Has Occurred as a Result of the Improper Management ofWastes Containing the Constituent (§ 261.11(a)(3)(ix)).

As of 1997, EPA has documented evidence of damage to groundwater and surface water at 16 sites, three of which have been listedon the Superfund NPL under CERCLA, and one of which remains onthe NPL. 36 cases of damage to air have been documented at dif-ferent sites.

Action Taken By Other Governmental Agencies or Regulatory Pro-grams Based on the Health or Environmental Hazard Posed by theWaste or Waste Constituents (§ 261.11(a)(3)(x)).

Some States have recognized that mismanagement of CKD can causesubstantial environmental problems, including Michigan, Pennsyl-vania, Texas, and Washington; however, the Agency believes Stateregulatory controls need to be improved as existing requirementsvary substantially from State to State. Problems with repeated re-leases of CKD to the environment suggest that the implementation ofexisting regulations is uneven.



48 To review these sampling data, see AppendixE of the Technical Background Document—Analysis of CKD Characteristics and GenerationData, Office of Solid Waste, U.S. EPA, August 1994;

Continued

TABLE 1.—CKD LISTING DETERMINATION RATIONALE—Continued

Criteria at § 261.11(a)(3) Rationale

Such Other Factors As May Be Appropriate (§ 261.11(a)(3)(xi)) ............ When mixed with water, CKD often exhibits the characteristic ofcorrosivity (40 CFR 261.22).

Based on the § 261.11(a)(3) criteria, theAgency believes that additional control ofimproperly managed CKD is warranted toprotect the public from human health risksand to prevent environmental damageresulting from current management practicesfor this waste. The primary concerns to beaddressed through the additional controls aredocumented damages to ground water andpotable water supplies, and potential humanhealth risks from inhalation of airborne CKDand ingestion via food chain pathways. Thereis the potential for ground-watercontamination in both karst and non-karstareas, however, and EPA is particularlyconcerned about areas underlain bylimestone with karst features. The Agencybelieves these potential risks can beeliminated through the implementation ofmore comprehensive management standards.

Although improperly managed CKD cancreate significant risks, the Agency believesthat these risks can effectively be addressedby adopting certain basic managementtechniques. CKD poses risks to human healthand the environment only in specificcircumstances under particular conditions(e.g., disposal of uncompacted CKD inunlined, uncovered landfills exposed towinds and the influx of ground water andrain water). Therefore, EPA is proposing toexclude from listing as hazardous waste CKDthat is properly managed according tostandards specified in today’s proposal (e.g.,disposal of wet, compacted CKD, otherwiseknown as ‘‘conditioned’’ CKD, in covered,lined landfills located above the naturalwater table), or in a landfill with analternative design that meets the performancestandard and has been approved by the EPARegional Administrator (or the State Director,in authorized States).

Appendix II to the Preamble—ReportableQuantities

All hazardous wastes listed under RCRAand codified in 40 CFR 261.31 through261.33, as well as any solid waste that is notexcluded from regulation as a hazardouswaste under 40 CFR 261.4(b) and thatexhibits one or more of the characteristics ofa RCRA hazardous waste (as defined in§§ 261.21 through 261.24), are hazardoussubstances under the ComprehensiveEnvironmental Response, Compensation, andLiability Act of 1980 (CERCLA), as amended(see CERCLA section 101(14)(C)). CERCLAhazardous substances are listed in Table302.4 at 40 CFR 302.4 along with theirreportable quantities (RQs). If a hazardoussubstance is released in an amount thatequals or exceeds its RQ, the release must bereported immediately to the NationalResponse Center (NRC) pursuant to CERCLAsection 103.

A. Reporting Requirements

Under CERCLA section 103(a), the personin charge of a vessel or facility from whicha hazardous substance has been released ina quantity that is equal to or exceeds its RQmust immediately notify the NRC as soon asthat person has knowledge of the release. Thetoll-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 reportingrequirement under CERCLA, section 304 ofthe Emergency Planning and CommunityRight-to-Know Act of 1986 (EPCRA) requiresowners or operators of certain facilities toreport releases of extremely hazardoussubstances and CERCLA hazardoussubstances to State and local authorities.EPCRA section 304 notification must begiven immediately after the release of an RQor more to the community emergencycoordinator of the local emergency planningcommittee for any area likely to be affectedby the release and to the State emergencyresponse commission of any State likely to beaffected by the release.

Under section 102(b) of CERCLA, allhazardous substances (as defined by CERCLAsection 101(14)) have a statutory RQ of onepound, unless and until the RQ is adjustedby regulation. In today’s rule, EPA isproposing to list cement kiln dust waste thatis not beneficially used and not managed inaccordance with 40 CFR Part 259, or cementkiln dust waste that is beneficially used foragricultural purposes and does not meet therequirements in 40 CFR 259.17. Such CKDwould be added to the CERCLA list ofhazardous substances and would have anunadjusted statutory RQ of one-pound. TheAgency is also proposing today to adjust theone-pound statutory RQ for CKD hazardouswaste.

B. Basis for Proposed RQ Adjustment

EPA’s methodology for adjusting the RQsof individual hazardous substances beginswith an evaluation of the intrinsic physical,chemical, and toxicological properties ofeach hazardous substance. The intrinsicproperties examined, called ‘‘primarycriteria’’, are aquatic toxicity, mammaliantoxicity (oral, dermal, and inhalation),ignitability, reactivity, chronic toxicity, andpotential carcinogenicity.

Generally, for each intrinsic property, EPAranks the hazardous substance on a five-tierscale, associating a specific range of valueson each scale with an RQ value of 1, 10, 100,1,000, or 5,000 pounds. Based on the variousprimary criteria, the hazardous substancemay receive several tentative RQ values. Thelowest 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 itssusceptibility to certain degradative

processes, which are used as secondary RQadjustment criteria. These naturaldegradative processes are biodegradation,hydrolysis, and photolysis (BHP). If ahazardous substance, when released into theenvironment, degrades relatively rapidly to aless hazardous form by one or more of theBHP processes, its primary criteria RQ isgenerally raised one level. Conversely, if ahazardous substance degrades to a morehazardous product after its release, theoriginal substance is assigned an RQ equal tothe RQ for the more hazardous substance,which may be one or more levels lower thanthe RQ for the original substance.

The standard methodology used to adjustthe RQs for RCRA hazardous waste streamsdiffers from the methodology applied toindividual hazardous substances. Theprocedure for assigning RQs to RCRA wastestreams is based on an analysis of thehazardous constituents of the waste streams.The constituents of each RCRA hazardouswaste stream are identified in 40 CFR part261, Appendix VII. EPA determines an RQfor each constituent within the waste streamand establishes the lowest RQ value of theseconstituents as the adjusted RQ for the wastestream. Therefore, in today’s rule, the Agencyis proposing a one-pound RQ for listedhazardous CKD waste based on the one-pound RQs for arsenic and mercury (i.e., thetwo constituents within this waste with thelowest RQ).

C. Application of the CERCLA Mixture Ruleto Listed Hazardous CKD Waste.

Although in today’s rule EPA is proposinga one-pound RQ for listed hazardous CKDwaste, EPA is also proposing to modify itsinterpretation of the mixture rule, asdescribed below, to allow facilities to use themaximum observed concentrations of theconstituents within listed hazardous CKDwaste in determining when to report releasesof this waste.

For listed hazardous CKD waste, where theactual concentrations of the hazardousconstituents are not known, EPA is todayproposing that persons managing CKD wastehave the option of reporting on the basis ofthe maximum observed concentrations thathave been identified by EPA (see Table 2below). Thus, although actual knowledge ofconstituent concentrations may not beknown, constructive knowledge of the EPA-identified maximum concentrations has beenassumed. This assumption is based on actualsampling data, specifically the maximumobserved concentrations of hazardousconstituents in Listed hazardous CKDwaste.48 Table 2 below identifies the



The document is located in the EPA RIC docket NoF–94–RCKA–FFFFF.

hazardous constituents for Listed hazardousCKD 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 RQof each constituent.

TABLE 2.—POUNDS REQUIRED TO CONTAIN RQ FOR EACH CONSTITUENT OF LISTED HAZARDOUS CKD WASTE

Waste stream constituent Maximumppm RQ (lb) Pounds required

to contain RQ

CKD ............................................................................................................................................... .................... 1 ..............................antimony ........................................................................................................................................ 360 5,000 13,888,889arsenic ........................................................................................................................................... 518 1 1,931barium ............................................................................................................................................ 1,402 1,000 713,267beryllium ......................................................................................................................................... 12 10 817,661cadmium ........................................................................................................................................ 1,540 10 6,494chromium ....................................................................................................................................... 450 5,000 11,111,111lead ................................................................................................................................................ 7,390 10 1,353mercury .......................................................................................................................................... 60 1 16,667nickel .............................................................................................................................................. 110 100 909,091selenium ......................................................................................................................................... 307 100 325,733silver ............................................................................................................................................... 58 1,000 17,271,157thallium ........................................................................................................................................... 776 1,000 1,288,660

For example, if Listed hazardous CKDwaste is released from a facility, and theactual concentrations of the waste’sconstituents are not known, it may beassumed that the concentrations will notexceed those listed above in Table 2. Thus,applying the mixture rule, the RQ thresholdfor lead in this waste is 1,353 pounds,assuming the maximum concentration listedin Table 2. Reporting would be required onlywhen an RQ or more of any hazardousconstituent is released.

Where the concentration levels of allhazardous constituents are known, thetraditional mixture rule would apply. Underthis scenario, if the actual concentration oflead is 100 ppm, 100,000 pounds of theListed hazardous CKD waste would need tobe released to reach the RQ for lead. Asapplied to Listed hazardous CKD waste,EPA’s proposed approach reduces the burdenof notification requirements for the regulatedcommunity and adequately protects humanhealth and the environment.

The modified interpretation of the mixturerule as it applies to Listed hazardous CKDwaste in today’s proposal is consistent withEPA’s approach in a recent final rule listingfour petroleum refining wastes (K169, K170,K171, and K172) as RCRA hazardous wastesand CERCLA hazardous substances (See 63FR 42110, August 6, 1998). In that rule, theAgency promulgated a change in itsinterpretation of the mixture rule to allowfacilities to consider the maximum observedconcentrations for the constituents of thepetroleum refining wastes in determiningwhen to report releases of the four wastes.EPA codified this change to its mixture ruleinterpretation in 40 CFR 302.6(b)(1) as a newsubparagraph (iii). If the Agency should takethe rule final, EPA will revise this samesubparagraph to extend the modifiedinterpretation of the mixture rule to includeListed hazardous CKD waste.

D. Unlisted RCRA Characteristic Waste

Kiln dust waste that is beneficially used(other than for agricultural purposes) ormanaged in accordance with 40 CFR Part

259, would not be listed as a RCRAhazardous waste or CERCLA hazardoussubstance by this rulemaking. Nevertheless,such wastes may be a listed hazardous wasteif there is a significant violation of the 40CFR Part 259 standards, or consideredunlisted CERCLA hazardous substances (asdescribed in 40 CFR 302.4(b)) when all of thefollowing conditions are met:

(1) the waste is a solid waste, as definedby 40 CFR 261.2;

(2) the waste is not excluded fromregulation as a hazardous waste under 40CFR 261.4(b); and,

(3) the waste exhibits any of thecharacteristics (i.e., ignitability, corrosivity,reactivity, or toxicity) of a RCRA hazardouswaste (defined in 40 CFR 261.20 through261.24).

Under proposed revisions to 40 CFR261.4(b) included in today’s rule, most CKDwastes have been excluded from regulationas a hazardous waste. Of the CKD wastes thatare not excluded, few are expected to exhibitRCRA characteristics. As stated elsewhere inthis preamble, cement kiln dust itself doesnot exhibit the RCRA hazardous wastecharacteristic of corrosivity, and the wasteexhibits the toxicity characteristicinfrequently, and only for certain metals.Therefore, CKD waste only rarely is expectedto qualify as a RCRA characteristic wasteand, thus, an unlisted CERCLA hazardoussubstance.

For the reasons set out in thispreamble, title 40, chapter I of the Codeof Federal Regulations is proposed to beamended as follows:

1. Part 259 is added to read as follows:

PART 259—MANAGEMENTSTANDARDS FOR CEMENT KILNDUST WASTE

Subpart A—General Provisions

Sec.259.1 Purpose, scope, and applicability.259.2 Definitions.259.3–259.9 [Reserved]

Subpart B—Location Restrictions259.10 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 Criteria259.20 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 Criteria259.30 Design criteria.259.31–259.39 [Reserved]

Subpart E—Ground-Water Monitoring andCorrective Action259.40 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 Care259.50 Closure criteria.259.51 Post-closure care requirements.259.52–259.59 [Reserved]

Subpart G—Financial Assurance Criteria259.60 Applicability.259.61 Financial assurance for closure.259.62 Financial assurance for post-closure

care.



259.63 Financial assurance for correctiveaction.

259.64 Allowable mechanisms.259.65 Discounting.

Appendix I to Part 259—Constituents forDetection Monitoring

Authority: 42 U.S.C. 6912(a), 6912(b)(3)(C)and 6924(x).

Subpart A—General Provisions

§ 259.1 Purpose, scope, and applicability.

(a) The purpose of this part is toestablish minimum national criteria forall cement kiln dust waste landfill(CKDLF) units. These minimumnational criteria ensure the protection ofhuman health and the environment.

(b) Regulations in this part apply toany cement kiln dust (CKD) wasteactively managed [90 days after theeffective date of the final rule], exceptas otherwise specifically provided inparagraph (d) of this section, includingCKD managed in new CKDLF units,existing CKDLF units, and expansions.

(c) These criteria do not apply to CKDmanaged prior to 90 days after the dateof publication of the final rule, exceptas otherwise specifically provided inparagraph (d) of this section.

(d) CKDLF units that receive wasteafter the date of publication of thisproposal, but stop receiving wastebefore [the effective date of the finalrule], are exempt from all therequirements of this part 259, except thefinal cover requirement specified in§ 259.50. The final cover must beinstalled within six months of lastreceipt of CKD waste. Units described inthis paragraph that do not have acomplete cover installation within thissix month period will be subject to allof the requirements of this part 259,unless otherwise specified.

(e) The compliance date for allrequirements of this part 259, unlessotherwise specified, is [two years afterthe effective date of the final rule], forall CKDLF units that receive waste after[the effective date of the final rule].

(f) Nothing in this part prevents,restricts, or regulates the beneficial useof CKD as a stabilizer or solidifierduring RCRA cleanups under sections3004(u), 3004(v) and 3008(h), CERCLAresponse actions that are carried out inaccordance with the requirements of 40CFR Part 300—the National Oil andHazardous Substances PollutionContingency Plan (NCP), or when theEPA Regional Administrator (or theState, in authorized States) finds thatthe beneficial use of CKD in other casesfor remedial purposes is protective ofhuman health and the environment.

§ 259.2 Definitions.This section contains definitions for

terms that appear throughout this part;additional definitions appear in thespecific sections to which they apply.

Active life means the period ofoperation beginning with the initialreceipt of CKD waste and ending atcompletion of closure activities inaccordance with § 259.50.

Active management means a facilityor unit that receives CKD waste and thathas not been closed in accordance with§ 259.50.

Aquifer means a geological formation,group of formations, or portion of aformation capable of yielding significantquantities of ground water to wells orsprings.

Beneficial Use of CKD means thesubstitution of CKD for another productbased on similar properties. Forpurposes of today’s proposed rule,beneficial use of CKD includes, but isnot restricted to, waste stabilization andgeneral construction (e.g., off-sitemanagement of CKD as surface materialin unpaved roads and parking lots).

Carbonate terrain means terraincomposed of carbonate bedrock (e.g.,limestone or dolomite) that consistschiefly of carbonate minerals such ascalcite and dolomite. In addition tolimestone and dolomite, carbonateterrains may also contain variableamounts of aluminous shale, calcareousmuds, and sands.

Cement kiln dust waste (CKD) meansthe fine particulate solids, associatedwith the production of Portland cement,which are collected by air pollutioncontrol devices used to clean the kilnexhaust.

Cement kiln dust waste landfill(CKDLF) unit means a discrete area ofland or an excavation that receives CKDwaste, and that is not a land applicationunit, surface impoundment, waste pile,as those terms are defined under § 257.2of this chapter, or injection well asdefined by 40 CFR Parts 144 and 146.A CKDLF unit may receive other typesof non-hazardous industrial wastes,such as kiln brick, construction debris,mining overburden and othercommercial solid waste (as defined in§ 258.2 of this chapter). A CKDLF unitmay be a new CKDLF unit, an existingCKDLF unit, or an expansion of anexisting CKDLF unit.

EPA Regional Administrator meansthe chief administrative officer of theEPA Region responsible forimplementing the Subtitle C solid wastepermit program. This reference onlyapplies to a State that has not chosen tocreate a CKD regulatory program underState law. In States with an authorizedRCRA program, all references to the

EPA Regional Administrator should beread as referring to the State Director, orother State official responsible forimplementing the CKD regulatoryprogram.

Existing CKDLF unit means anycement kiln dust waste landfill unit thatis receiving CKD as of 90 days after theeffective date of the final rule. Wasteplacement must be consistent with pastoperating practices or operatingpractices modified to ensure goodmanagement.

Facility means all contiguous landand structures, other appurtenances,and improvements on the land used forthe disposal of CKD.

Ground water means water below theland surface in a zone of saturation.

Expansion means a lateral or verticalexpansion of the waste boundaries of anexisting CKDLF unit.

Leachate means a liquid that haspassed through or emerged from CKDand contains soluble, suspended, ormiscible materials removed from suchwaste.

New CKDLF unit means any cementkiln dust landfill unit or lateralexpansion of an existing CKDLF unit,that has not received waste prior to 90days after the effective date of the finalrule.

Person(s) managing CKD waste meansany person responsible for transport,disposal or sale of any CKD waste,including owners and operators of CKDwaste landfills.

Run-off means any rainwater,leachate, or other liquid that drains overland from any part of a facility.

Run-on means any rainwater,leachate, or other liquid that drains overland onto any part of a facility.

Saturated zone means that part of theearth’s crust in which all voids are filledwith water.

Uppermost aquifer means the geologicformation nearest the natural groundsurface that is an aquifer, as well as,lower aquifers that are hydraulicallyinterconnected with this aquifer withinthe facility’s property boundary. Thisdefinition specifically includesdiscontinuous aquifers which areperched.

Waste management unit boundarymeans a vertical surface located at thehydraulically downgradient limit of theunit. This vertical surface extends downinto the uppermost aquifer.

§§ 259.3–259.9 [Reserved]

Subpart B—Location Restrictions

§ 259.10 Placement above the naturalwater table.

(a) CKD must be managed in a CKDLFunit with a base that is located above



the upper limit of the natural watertable.

(b) For purposes of this sectionnatural water table means the naturallevel at which water stands in a shallowwell open along its length andpenetrating the surficial deposits justdeeply enough to encounter standingwater at the bottom. This level isuninfluenced by ground-water pumpingor other engineered activities.

§ 259.11 Floodplains.(a) CKD shall not be managed in a

CKDLF unit located in a 100-yearfloodplain unless a demonstration ismade to the EPA RegionalAdministrator that the unit will notrestrict the flow of the 100-year flood,reduce the temporary water storagecapacity of the floodplain, or result inwashout of solid waste so as to pose ahazard to human health and theenvironment. The person managingCKD waste must place a demonstrationin the operating record and notify theEPA Regional Administrator that thedemonstration has been placed in theoperating record.

(b) For purposes of this Section:(1) Floodplain means the lowland and

relatively flat areas adjoining inland andcoastal waters, including flood-proneareas of offshore islands, that areinundated by the 100-year flood.

(2) 100-year flood means a flood thathas a 1-percent or greater chance ofrecurring in any given year or a flood ofa magnitude equaled or exceeded oncein 100 years on the average over asignificantly long period.

(3) Washout means the carrying awayof solid waste by waters of the baseflood.

§ 259.12 Wetlands.(a) CKD shall not be managed in

CKDLF units located in wetlands,unless the following demonstrations aremade to the EPA RegionalAdministrator:

(1) Where applicable under section404 of the Clean Water Act or applicableState wetlands laws, the presumptionthat a practicable alternative to theproposed landfill is available whichdoes not involve wetlands is clearlyrebutted;

(2) The construction and operation ofthe CKDLF unit will not:

(i) Cause or contribute to violations ofany applicable State water qualitystandard,

(ii) Violate any applicable toxiceffluent standard or prohibition undersection 307 of the Clean Water Act,

(iii) Jeopardize the continuedexistence of endangered or threatenedspecies or result in the destruction or

adverse modification of a criticalhabitat, protected under the EndangeredSpecies Act of 1973, and

(iv) Violate any requirement under theMarine Protection, Research, andSanctuaries Act of 1972 for theprotection of a marine sanctuary;

(3) The CKDLF unit will not cause orcontribute to significant degradation ofwetlands. The integrity of the CKDLFunit and its ability to protect ecologicalresources must be demonstrated byaddressing the following factors:

(i) Erosion, stability, and migrationpotential of native wetland soils, mudsand deposits used to support the CKDLFunit;

(ii) Erosion, stability, and migrationpotential of dredged and fill materialsused to support the CKDLF unit;

(iii) The volume and chemical natureof the waste managed in the CKDLFunit;

(iv) Impacts on fish, wildlife, andother aquatic resources and their habitatfrom release of the solid waste;

(v) The potential effects ofcatastrophic release of waste to thewetland and the resulting impacts onthe environment; and

(vi) Any additional factors, asnecessary, to demonstrate thatecological resources in the wetland aresufficiently protected.

(4) To the extent required undersection 404 of the Clean Water Act orapplicable State wetlands laws, stepshave been taken to attempt to achieveno net loss of wetlands (as defined byacreage and function) by first avoidingimpacts to wetlands to the maximumextent practicable as required byparagraph (a)(1) of this Section, thenminimizing unavoidable impacts to themaximum extent practicable, and finallyoffsetting remaining unavoidablewetland impacts through all appropriateand practicable compensatorymitigation actions (e.g., restoration ofexisting degraded wetlands or creationof man-made wetlands); and (5)Sufficient information is available tomake a reasonable determination withrespect to these demonstrations.

(b) For purposes of this section,wetlands means those areas that aredefined in 40 CFR 232.2(r).

(c) Nothing in this section affects theapplicability of any other statute orregulation affecting management of CKDin wetlands, including the permittingrequirements under section 404 of theClean Water Act.

§ 259.13 Fault areas.(a) CKD shall not be managed in a

CKDLF unit located within 200 feet (60meters) of a fault that has haddisplacement in Holocene time unless a

demonstration is made to the EPARegional Administrator that analternative setback distance of less than200 feet (60 meters) will prevent damageto the structural integrity of the CKDLFunit and will be protective of humanhealth and the environment.

(b) For the purposes of this section:(1) Fault means a fracture or a zone

of fractures in any material along whichstrata on one side have been displacedwith respect to that on the other side.

(2) Displacement means the relativemovement of any two sides of a faultmeasured in any direction.

(3) Holocene means the most recentepoch of the Quaternary period,extending from the end of thePleistocene Epoch to the present.

§ 259.14 Seismic impact zones.

(a) CKD shall not be managed inCKDLF units located in seismic impactzones, unless a demonstration is madeto the EPA Regional Administrator thatall containment structures, includingliners, leachate collection systems, andsurface water control systems, aredesigned to resist the maximumhorizontal acceleration in lithified earthmaterial for the site. The personmanaging CKD waste must place thedemonstration in the operating recordand notify the EPA RegionalAdministrator that it has been placed inthe operating record.

(b) For the purposes of this Section:(1) Seismic impact zone means an

area with a ten percent or greaterprobability that the maximumhorizontal acceleration in lithified earthmaterial, expressed as a percentage ofthe earth’s gravitational pull (g), willexceed 0.10g (i.e., 98.0 centimeters persecond per second) in 250 years.

(2) Maximum horizontal accelerationin lithified earth material means themaximum expected horizontalacceleration depicted on a seismichazard map, with a 90 percent or greaterprobability that the acceleration will notbe exceeded in 250 years, or themaximum expected horizontalacceleration based on a site-specificseismic risk assessment.

(3) Lithified earth material means allrock, including all naturally occurringand naturally formed aggregates ormasses of minerals or small particles ofolder rock that formed by crystallizationof magma or by induration of loosesediments. This term does not includeman-made materials, such as fill,concrete, and asphalt, or unconsolidatedearth materials, soil, or regolith lying ator near the earth surface.



§ 259.15 Unstable areas.(a) CKD shall not be managed in

CKDLF units located in an unstable areaunless a demonstration is made to theEPA Regional Administrator thatengineering measures have beenincorporated into the CKDLF unit’sdesign to ensure that the integrity of thestructural components of the CKDLFunit will not be disrupted. The personmanaging CKD waste must place thedemonstration in the operating recordand notify the EPA RegionalAdministrator that it has been placed inthe operating record. The followingfactors, at a minimum, must beconsidered when determining whetheran area is unstable:

(1) On-site or local soil conditionsthat may result in significant differentialsettling;

(2) On-site or local geologic orgeomorphologic features; and

(3) On-site or local human-madefeatures or events (both surface andsubsurface).

(b) For purposes of this Section:(1) Unstable area means a location

that is susceptible to natural or human-induced events or forces capable ofimpairing the integrity of some or all ofthe landfill structural componentsresponsible for preventing releases froma landfill. Unstable areas can includepoor foundation conditions, areassusceptible to mass movements, andkarst terrains.

(2) Structural components meansliners, leachate collection systems, finalcovers, run-on/run-off systems, and anyother component used in theconstruction and operation of theCKDLF that is necessary for protectionof human health and the environment.

(3) Poor foundation conditions meansthose areas where features exist whichindicate that a natural or human-induced event may result in inadequatefoundation support for the structuralcomponents of a CKDLF unit.

(4) Areas susceptible to massmovement means those areas ofinfluence (i.e., areas characterized ashaving an active or substantialpossibility of mass movement) wherethe movement of earth material at,beneath, or adjacent to the CKDLF unit,because of natural or human-inducedevents, results in the downslopetransport of soil and rock material bymeans of gravitational influence. Areasof mass movement include, but are notlimited to, landslides, avalanches,debris slides and flows, soil fluction,block sliding, and rock fall.

§ 259.16 Karst terrains.(a) CKD shall not be managed in

CKDLF units located in karst terrain

unless a demonstration is made to theEPA Regional Administrator thatengineering measures have beenincorporated into the CKDLF unit’sdesign to ensure that the integrity of thestructural components of the CKDLFunit will not be disrupted. The personmanaging CKD waste must place thedemonstration in the operating recordand notify the EPA RegionalAdministrator that it has been placed inthe operating record. The followingfactors, at a minimum, must beconsidered when determining whether aterrain is karstic:

(1) On-site or local geologic orgeomorphologic features;

(2) On-site or local soil conditionsthat may result in significant differentialsettling, collapse, or puncture of alandfill liner;

(3) On-site hydrology, including thecharacter and direction of ground-waterflow and points of discharge for thekarst ground-water basin the facilitymay affect; and

(4) On-site or local human-madefeatures or events (both surface andsubsurface).

(b) For purposes of this Section:(1) Karst terrains means areas where

karst landscape, with its characteristichydrogeology and/or landforms aredeveloped. In karst terrain, ground-water flow generally occurs through anopen system with both diffuse andconduit flow end member components,and typically has rapid ground-waterflow velocities which exceed Darcianflow velocities. Composed of limestone,dolomite, gypsum and other solublerock, karst terrain typically has welldeveloped secondary porosity enhancedby dissolution. Landforms found inkarst terrain include, but are not limitedto, sinkholes, sinking streams, caves,springs and blind valleys. Karst terrainsalways include one or more springs foreach ground-water basin, andunderground streams except whereground-water flow is diffuse or the hostrock has megaporosity.

(2) Structural components meansliners, leachate collection systems, finalcovers, run-on/run-off systems, and anyother component used in theconstruction and operation of theCKDLF that is necessary for protectionof human health and the environment.

(3) Conduit flow means nonlinear toturbulent ground-water flow through anintegrated system of conduits whichbehave hydraulically as a system ofpipes. Conduit flow is typical of ground-water flow through thick, massivesoluble rock such as limestone, whereground water is concentrated, flow israpid and specific discharges are high.Turbulent conduit flow can be initiated

in fractures as thin as 5 to 10millimeters.

(4) Darcian flow means ground-waterflow which follows Darcy’s law, wherethe specific discharge is proportional tothe hydraulic gradient. Darcian ground-water flow is typically linear andlaminar, travels from 1 × 10¥11 to 1 ×102 centimeters per second, and ischaracteristic of ground-water flowthrough granular porous media.

(5) Diffuse flow means ground-waterflow which is laminar and slow (withinthe range of Darcian flow velocities)through a system of joints and beddingplanes that have had minimal solutionenlargement.

§ 259.17 Regulation of agricultural use.CKD shall not be used for agricultural

purposes unless the CKD is mixed withsewage sludge and subject to 40 CFRPart 503 standards, or the waste meetsthe following requirements:

(a) CKD must not contain the toxicconstituents arsenic, cadmium, lead,and thallium in excess of the followinglimits: arsenic—13 mg/kg, cadmium—22 mg/kg, lead—1500 mg/kg, andthallium—15 mg/kg.

(b) CKD must not contain chlorinateddioxins and furans in excess of 40 partsper trillion toxicity equivalent (TEQ).

(c) CKD destined for agricultural usemust be sampled and analyzed by thegenerator prior to shipment foragricultural use to determine whetherthe waste has concentrations of toxicconstituents in excess of thoseestablished in paragraphs (a) and (b) ofthis section.

(d) For all CKD shipped for beneficialagricultural use, the person generatingCKD waste shall place in the operatingrecord a notation listing the amount ofCKD shipped and a letter of certificationsigned by a company representativeverifying compliance with theprovisions specified under paragraphs(a) and (b) of this section.

(e) For purposes of this section,agricultural use is defined as use of CKDas an agricultural lime substitute for thepurpose of amending the soil tooptimize pH or to promote the growthof crops or other foodstuffs. The Agencyrestricts this definition of use to CKDproduced for use by the general publicand not for the exclusive use of theowner or operator of the facility whichgenerates the CKD waste.

§§ 259.18–259.19 [Reserved]

Subpart C—Air Criteria

§ 259.20 Air criteria for tanks, containers,or buildings.

(a) This section applies to cement kilndust waste placed in temporary storage.



Such CKD must be covered or otherwisemanaged to control wind dispersal ofdusts, or stored in tanks, containers orbuildings that meet the followingminimum standards:

(1) The tank, container, or buildingshould be an engineered structure witha human-made floor, walls, and a roofall of which prevent water fromreaching the stored CKD and are madeof non-earthen materials providingstructural support.

(2) The tank, container, or buildingmust be free standing and not a surfaceimpoundment (as defined in 40 CFR257.2), be manufactured of a materialsuitable for storage of its contents, andmeet appropriate specifications such asthose established by either ASTM, API,or UL standards.

(b) For purposes of this section,temporary storage means interim storageof CKD designated for recycling, sale orfinal disposal.

(c) Alternative measures for fugitivedust control may be approved by theEPA Regional Administrator if ademonstration is made to the EPARegional Administrator that thealternative measures are at least aseffective in controlling wind dispersalof CKD as the minimum standardsdefined in paragraph (a) of this section.The person managing CKD waste mustplace the demonstration in the operatingrecord and notify the EPA RegionalAdministrator that it has been placed inthe operating record.

§ 259.21 Air criteria for trucks transportingcement kiln dust.

(a) CKD waste transported in trucks orother vehicles must be covered orotherwise managed to control winddispersal of dust.

(b) Alternative measures for fugitivedust control may be approved by theEPA Regional Administrator if ademonstration is made to the EPARegional Administrator that thealternative measures are at least aseffective in controlling wind dispersalof CKD as the standards defined inparagraph (a) of this section. The personmanaging CKD waste must place thedemonstration in the operating recordand notify the EPA RegionalAdministrator that it has been placed inthe operating record.

§ 259.22 Air criteria for landfills.(a) CKD disposed in all CKDLF units

must be managed in a manner that doesnot violate any applicable requirementsdeveloped under a StateImplementation Plan (SIP) approved orpromulgated by the Administratorpursuant to section 110 of the Clean AirAct, as amended.

(b) CKD must be disposed in CKDLFunits and expansions constructed sothat such CKD is:

(1) Covered or otherwise managed tocontrol wind dispersal of dust, or

(2) Emplaced as conditioned CKD tocontrol wind dispersal, and

(3) Covered with a sufficient thicknessof earthen material at the end of eachoperating day, or at more frequentintervals if necessary, except asprovided in paragraph (d) of thissection, to control blowing dust.

(c) For purposes of this sectionconditioned CKD means cement kilndust that has been compacted in thefield at appropriate moisture contentusing moderate to heavy equipment toattain 95% of the standard Proctormaximum dry density value accordingto ASTM D 698 or D 1557 test methods.

(d) Alternative measures for fugitivedust control may be approved by theEPA Regional Administrator if ademonstration is made to the EPARegional Administrator that thealternative measures are at least aseffective in controlling wind dispersalof CKD as the minimum standardsdefined in paragraphs (a), (b), and (c) ofthis section. The person managing CKDwaste must place the demonstration inthe operating record and notify the EPARegional Administrator that it has beenplaced in the operating record.

§ 259.23 Recordkeeping requirements.(a) An operating record of a CKDLF

unit must be retained at the facility and/or in an alternative location approvedby the EPA Regional Administrator. Thefollowing information must be recordedin the operating record as it becomesavailable:

(1) Any notification of violationrequired under paragraph (c) of thissection;

(2) Any certification of compliancerequired under paragraph (d) of thissection;

(3) Any location restrictiondemonstration required under SubpartB;

(4) Any CKDLF unit designdocumentation;

(5) Any demonstration, certification,finding, monitoring, testing, oranalytical data required by Subpart E;

(6) Any demonstration, certification,testing, or analytical data required by§ 259.17(d);

(7) Any plans for selected remedies asrequired by § 259.47;

(8) Closure and post-closure careplans and any monitoring, testing, oranalytical data as required by §§ 259.50and 259.51; and

(9) Any cost estimates and financialassurance documentation required bySubpart G of this part G.

(b) The person managing CKD wastemust notify the EPA RegionalAdministrator when the documentsfrom paragraph (a) of this section havebeen placed or added to the operatingrecord, and all information contained inthe operating record must be madeavailable for inspection by the public atall reasonable times, and furnishedupon request to the EPA RegionalAdministrator.

(c) The person managing CKD wastemust notify the EPA RegionalAdministrator, in a letter signed bycompany management, whenever anystandard of this rule is violated.

(d) The person managing CKD wastemust submit a certification to the EPARegional Administrator, signed bycompany management, once each year:throughout the active life and post-closure care period that a new orexisting CKDLF unit is in compliancewith the air criteria, ground-watermonitoring, and corrective actionprovisions of subparts C and E of thispart; and throughout the active life ofthe facility that all CKD managed on-siteor sent off-site for beneficial use isdisposed in compliance with allapplicable provisions of this part. Thecertification must also certify that allrecords from paragraph (a) of thissection are properly maintained andavailable to the public in accordancewith the provisions of paragraph (b) ofthis section.

(e) The EPA Regional Administratorcan set alternative schedules forrecordkeeping and notificationrequirements as specified in paragraphs(a), (b), (c), (d) and (e) of this section.

§§ 259.24–259.29 [Reserved]

Subpart D—Design Criteria

§ 259.30 Design criteria.

(a) Prior to construction of a CKDLFunit in carbonate terrain, a karst ground-water investigation must be conductedto define the direction of ground-waterflow and points of discharge for thekarst ground-water basin(s) the facilitymay affect. The karst ground-waterinvestigation shall include, but not belimited to, a karst inventory and a dyetracer study to identify springs whichare hydrologically related to the CKDLFunit. The investigation must be certifiedby a qualified ground-water scientistand approved by the EPA RegionalAdministrator.

(b) The requirement for a karstground-water investigation under thispart may be suspended by the EPARegional Administrator for a CKDLFunit if a demonstration is made thatthere is no potential for migration of



hazardous constituents from thatCKDLF unit to the uppermost aquifer (asdefined in § 259.2) during the active lifeof the unit and the post-closure careperiod. This demonstration must becertified by a qualified ground-waterscientist and approved by the EPARegional Administrator, and must bebased upon:

(1) Site-specific field collectedmeasurements, sampling and analysis ofphysical, chemical, and biologicalprocesses affecting contaminant fate andtransport, and

(2) Contaminant fate and transportpredictions that maximize contaminantmigration and consider impacts onhuman health and environment.

(c) CKD must be managed in CKDLFunits and lateral expansionsconstructed:

(1) In accordance with a design whichensures that the concentration valueslisted in Table 1 of this section shall notbe exceeded in the uppermost aquifer atthe relevant point of compliance (POC),as specified under paragraph (d) of thissection, or

(2) With a composite liner, as definedin paragraph (d) of this section and aleachate collection system that isdesigned and constructed to maintainless than a 30 cm depth of leachate overthe liner.

(d) For purposes of this Section,composite liner means a systemconsisting of two components; theupper component must consist of aminimum 30 mil flexible membraneliner (FML), and the lower componentmust consist of at least a two-foot layerof compacted soil with a hydraulicconductivity of no more than 1x10E¥7

cm/sec. FML components consisting ofhigh density polyethylene (HDPE) shallbe at least 60 mil thick. The FMLcomponent must be installed in directand uniform contact with thecompacted soil component.

(e) When designing a CKDLF unit thatcomplies with paragraph (c)(1) of thissection, the following factors, at aminimum, must be considered:

(1) The hydrologic characteristics ofthe facility and surrounding land,especially the presence of karst terrain;

(2) The climatic factors of the area;and

(3) The volume and physical andchemical characteristics of the leachate.

(f) The relevant POC shall be no morethan 150 meters from the wastemanagement unit boundary and shall belocated on land owned by the owner ofthe CKDLF unit. In determining therelevant POC, the following factors shallbe considered:

(1) The hydrogeologic characteristicsof the facility and surrounding land;

(2) The volume and physical andchemical characteristics of the leachate;

(3) The quantity, quality, anddirection of flow of ground water;

(4) The proximity and withdrawal rateof the ground-water users;

(5) The availability of alternativedrinking water supplies;

(6) The existing quality of the groundwater, including other sources ofcontamination and their cumulativeimpacts on the ground water, andwhether the ground water is currentlyused or reasonably expected to be usedfor drinking water; and

(7) Public health, safety, and welfareeffects.

Table 1.—Concentration Limits forMetals in the Uppermost Aquifer

Chemical MCL (mg/l)

Antimony ................................... 0.006Arsenic ...................................... 0.05Barium ...................................... 2.0Beryllium ................................... 0.004Cadmium .................................. 0.005Chromium (total) ....................... 0.1Lead .......................................... 0.015a

Mercury ..................................... 0.002Selenium ................................... 0.05Silver ......................................... 0.01b

Thallium .................................... 0.002

a EPA Action level.b Federal Secondary Drinking Water MCL.

(g) The person managing CKD wastemust notify the EPA RegionalAdministrator when the documentsfrom paragraph (a) of this section havebeen placed or added to the operatingrecord, and all information contained inthe operating record must be madeavailable for inspection by the public atall reasonable times, and furnishedupon request to the EPA RegionalAdministrator.

(h) Alternative CKDLF unit designsmay be approved by the EPA RegionalAdministrator if a demonstration ismade that the alternative unit designsprotect ground water without presentinga threat to human health and theenvironment.

§§ 259.31-259.39 [Reserved]

Subpart E—Ground-Water Monitoringand Corrective Action

§ 259.40 Applicability.(a) The requirements in this part

apply to all new and existing CKDLFunits, except as provided in paragraph(b) of this section.

(b) Ground-water monitoringrequirements under §§ 259.41 through259.45 may be suspended by the EPARegional Administrator for a CKDLFunit if a demonstration is made that

there is no potential for migration ofhazardous constituents from thatCKDLF unit to the uppermost aquifer (asdefined in § 259.2) during the active lifeof the unit and the post-closure careperiod. This demonstration must becertified by a qualified ground-waterscientist and approved by the EPARegional Administrator, and must bebased upon:

(1) Site-specific field collectedmeasurements, sampling, and analysisof physical, chemical, and biologicalprocesses affecting contaminant fate andtransport, and

(2) Contaminant fate and transportpredictions that maximize contaminantmigration and consider impacts onhuman health and the environment.

(c) Persons managing CKD waste inCKDLF units must comply with theground-water monitoring requirementsof this part according to the followingschedule:

(1) Existing CKDLF units must be incompliance with the ground-watermonitoring requirements specified in§§ 259.41 through 259.45 by two yearsafter the effective date of the rule;

(2) New CKDLF units and expansionsof existing CKDLF units must be incompliance with the ground-watermonitoring requirements specified in§§ 259.41 through 259.45 before cementkiln dust waste can be placed in theunit.

(d) The person managing CKD wastemust notify the EPA RegionalAdministrator once each yearthroughout the active life and post-closure care period that a new orexisting CKDLF unit is in compliancewith the ground-water monitoring andcorrective action provisions of thisSubpart.

(e) Once established at a CKDLF unit,ground-water monitoring shall beconducted throughout the active lifeand post-closure care period of thatCKDLF unit as specified in § 259.51.

(f) For the purposes of this subpart, aqualified ground-water scientist is ascientist or engineer who has received abaccalaureate or post-graduate degree inthe natural sciences or engineering andhas sufficient training and experience ingroundwater hydrology and relatedfields as may be demonstrated by Stateregistration, professional certifications,or completion of accredited universityprograms that enable that individual tomake sound professional judgementsregarding ground-water monitoring,contaminant fate and transport, andcorrective action, particularly as theyrelate to karst terrain.



§ 259.41 Ground-water monitoringsystems.

(a) A ground-water monitoring systemmust be installed that consists of asufficient number of wells and/orsprings, installed at appropriatelocations and depths, to yield ground-water samples from the uppermostaquifer (as defined in § 259.2). Theground-water monitoring system mustinclude at a minimum one up-gradientand three down-gradient wells. Ground-water samples must:

(1) Represent the quality ofbackground ground water that has notbeen affected by leakage from the unitbeing monitored. A determination ofbackground quality may includesampling of wells and/or springs thatare not hydraulically upgradient of thewaste management area where:

(i) Hydrogeologic conditions do notallow the person managing CKD wasteto determine what wells and springs arehydraulically upgradient; or

(ii) Sampling at other wells andsprings will provide an indication ofbackground ground-water quality that isas representative or more representativethan that provided by the upgradientwells and springs; and

(2) Represent the quality of groundwater passing the relevant POC. Thedowngradient monitoring system mustbe installed at the relevant POC (or atthe waste management unit boundary)that ensures detection of ground-watercontamination in the uppermost aquifer.When physical obstacles precludeinstallation of ground-water monitoringwells at the relevant POC at existingunits, the down-gradient monitoringsystem may be installed at the closestpracticable distance hydraulicallydown-gradient from the relevant POCthat ensures detection of ground-watercontamination in the uppermost aquifer.

(b) A multi-unit ground-watermonitoring system may be installedinstead of separate ground-watermonitoring systems for each CKDLFunit when the facility has several units,provided the multi-unit ground-watermonitoring system meets therequirement of paragraph (a) of thissection and will be as protective ofhuman health and the environment asindividual monitoring systems for eachCKDLF unit, based on the followingfactors:

(1) Number, spacing, and orientationof 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 ofthe monitoring well bore hole. This

casing must be screened or perforatedand packed with gravel or sand, wherenecessary, to enable collection ofground-water samples. The annularspace (i.e., the space between the borehole and well casing) above thesampling depth must be sealed toprevent contamination of samples andthe ground water.

(1) The person managing CKD wastemust notify the EPA RegionalAdministrator that the design,installation, development, anddecommission of any monitoring wells,piezometers and other measurement,sampling, and analytical devicesdocumentation has been placed in theoperating record; and

(2) The monitoring wells, springs,piezometers, and other measurement,sampling, and analytical devices mustbe operated and maintained so that theyperform to design specificationsthroughout the life of the monitoringprogram.

(d) The number, spacing, and depthsof monitoring systems shall be:

(1) Determined based upon site-specific technical information that mustinclude thorough characterization of:

(i) Aquifer thickness, ground-waterflow rate, ground-water flow directionincluding seasonal and temporalfluctuations in ground-water flow; and

(ii) Saturated and unsaturatedgeologic units and fill materialsoverlying the uppermost aquifer,materials comprising the uppermostaquifer, and materials comprising theconfining unit defining the lowerboundary of the uppermost aquifer;including, but not limited to:thicknesses, stratigraphy, lithology,hydraulic conductivities, porosities andeffective porosities.

(2) Certified by a qualified ground-water scientist or approved by the EPARegional Administrator. Within 14 daysof this certification, the personmanaging CKD waste must notify theEPA Regional Administrator that thecertification has been placed in theoperating record.

§ 259.42 [Reserved]

§ 259.43 Ground-water sampling andanalysis requirements.

(a) The ground-water monitoringprogram must include consistentsampling and analysis procedures thatare designed to ensure monitoringresults that provide an accuraterepresentation of ground-water qualityat the background and downgradientwells (and at springs respective to sitehydrogeology) installed in compliancewith § 259.41(a). The person managingCKD waste must notify the EPA

Regional Administrator that thesampling and analysis programdocumentation has been placed in theoperating record and the program mustinclude 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 andanalytical methods that are appropriatefor ground-water sampling and thataccurately measure hazardousconstituents and other monitoringparameters in ground-water samples.Ground-water samples shall not befield-filtered prior to laboratoryanalysis.

(c) The sampling procedures andfrequency must ensure protection ofhuman health and the environment.

(d) Ground-water elevations must bemeasured in each well immediatelyprior to purging, each time ground wateris sampled. The rate and direction ofground-water flow must be determinedeach time ground water is sampled.Ground-water elevations in wells whichmonitor the same waste managementarea must be measured within a periodof time short enough to avoid temporalvariations in ground-water flow whichcould preclude accurate determinationof ground-water flow rate and direction.

(e) The background ground-waterquality must be established in ahydraulically upgradient or backgroundwell(s) (and spring(s) if appropriate) foreach of the monitoring parameters orconstituents required in the particularground-water monitoring program thatapplies to the CKDLF unit, asdetermined under § 259.44(a) or§ 259.45(a). Background ground-waterquality may be established at wells (andsprings if appropriate) that are notlocated hydraulically upgradient fromthe CKDLF unit if it meets therequirements of § 259.41(a)(1).

(f) The number of samples collected toestablish ground-water quality datamust be consistent with the appropriatestatistical procedures determinedpursuant to paragraph (g) of this section.The sampling procedures shall be thosespecified under § 259.44(b) for detectionmonitoring, § 259.45(b) and (d) forassessment monitoring, and § 259.46(b)for corrective action.

(g) One of the following statisticalmethods to be used in evaluatingground-water monitoring data must bespecified in the operating record foreach hazardous constituent. Thestatistical test chosen shall be



conducted separately for eachhazardous constituent in each well (andspring if appropriate).

(1) A parametric analysis of variance(ANOVA) followed by multiplecomparisons procedures to identifystatistically significant evidence ofcontamination. The method mustinclude estimation and testing of thecontrasts between each compliancewell’s mean and the background meanlevels for each constituent.

(2) An analysis of variance (ANOVA)based on ranks followed by multiplecomparisons procedures to identifystatistically significant evidence ofcontamination. The method mustinclude estimation and testing of thecontrasts between each compliancewell’s median and the backgroundmedian levels for each constituent.

(3) A tolerance or prediction intervalprocedure in which an interval for eachconstituent is established from thedistribution of the background data, andthe level of each constituent in eachcompliance well is compared to theupper tolerance or prediction limit.

(4) A control chart approach that givescontrol limits for each constituent.

(5) Another statistical test method thatmeets the performance standards ofparagraph (h) of this section. The personmanaging CKD waste must place ajustification for this alternative in theoperating record and notify the EPARegional Administrator of the use of thisalternative test. The justification mustdemonstrate that the alternative methodmeets the performance standards ofparagraph (h) of this section.

(h) Any statistical method chosenunder paragraph (g) of this section shallcomply with the following performancestandards, as appropriate:

(1) The statistical method used toevaluate ground-water monitoring datashall be appropriate for the distributionof chemical parameters or hazardousconstituents. If the distribution of thechemical parameters or hazardousconstituents is shown by the personmanaging CKD waste to beinappropriate for a normal theory test,then the data should be transformed ora distribution-free theory test should beused. If the distributions for theconstituents differ, more than onestatistical method may be needed.

(2) If an individual well comparisonprocedure is used to compare anindividual compliance well constituentconcentration with backgroundconstituent concentrations or a ground-water protection standard, the test shallbe done at a Type I error level no lessthan 0.01 for each testing period. If amultiple comparisons procedure isused, the Type I experimental error rate

for each testing period shall be no lessthan 0.05; however, the Type I error ofno less than 0.01 for individual wellcomparisons must be maintained. Thisperformance standard does not apply totolerance intervals, prediction intervals,or control charts.

(3) If a control chart approach is usedto evaluate ground-water monitoringdata, the specific type of control chartand its associated parameter valuesshall be protective of human health andthe environment. The parameters shallbe determined after considering thenumber of samples in the backgrounddata base, the data distribution, and therange of the concentration values foreach constituent of concern.

(4) If a tolerance interval or apredictional interval is used to evaluateground-water monitoring data, thelevels of confidence and, for toleranceintervals, the percentage of thepopulation that the interval mustcontain shall be protective of humanhealth and the environment. Theseparameters shall be determined afterconsidering the number of samples inthe background data base, the datadistribution, and the range of theconcentration values for eachconstituent of concern.

(5) The statistical method shallaccount for data below the limit ofdetection with one or more statisticalprocedures that are protective of humanhealth and the environment. Anypractical quantitation limit (pql) that isused in the statistical method shall bethe lowest concentration level that canbe reliably achieved within specifiedlimits of precision and accuracy duringroutine laboratory operating conditionsthat are available to the facility.

(6) If necessary, the statistical methodshall include procedures to control orcorrect for seasonal and spatialvariability as well as temporalcorrelation in the data.

(i) The person managing CKD wastemust determine whether or not there isa statistically significant increase overbackground values for each parameter orconstituent required in the particularground-water monitoring program thatapplies to the CKDLF unit, asdetermined under § 259.44(a) or§ 259.45(a).

(1) In determining whether astatistically significant increase hasoccurred, the person managing CKDwaste must compare the ground-waterquality of each parameter or constituentat each monitoring well (and spring ifappropriate) designated pursuant to§ 259.41(a)(2) to the background value ofthat constituent, according to thestatistical procedures and performance

standards specified under paragraphs (g)and (h) of this section.

(2) Within 14 days after completingsampling and analysis, the personmanaging CKD waste must determinewhether there has been a statisticallysignificant increase over background ateach monitoring well and spring.

§ 259.44 Detection monitoring program.

(a) Detection monitoring is required atCKDLF units at all ground-watermonitoring wells (and springs ifappropriate) defined under §§ 259.41(a)(1) and (a)(2). At a minimum, adetection monitoring program mustinclude the monitoring for theconstituents listed in Appendix I to thispart.

(1) The EPA Regional Administratormay delete any of the Appendix I of thispart monitoring parameters for a CKDLFunit if it can be shown that the removedconstituents are not reasonably expectedto be in, mobilized by, or derived fromthe CKD contained in the unit.

(2) The EPA Regional Administratormay establish an alternative list ofinorganic indicator parameters for aCKDLF unit, in lieu of some or all of theheavy metals, if the alternativeparameters provide a reliable indicationof inorganic releases from the CKDLFunit to the ground water. In determiningalternative parameters, the EPARegional Administrator shall considerthe following factors:

(i) The types, quantities, andconcentrations of constituents in wastesmanaged at the CKDLF unit;

(ii) The mobility, stability, andpersistence of waste constituents ortheir reaction products in theunsaturated zone beneath the CKDLFunit;

(iii) The detectability of indicatorparameters, waste constituents, andreaction products in the ground water;and

(iv) The concentration or values andcoefficients of variation of monitoringparameters or constituents in theground-water background.

(b) The monitoring frequency for allconstituents listed in Appendix I to thispart, or in the alternative list approvedin accordance with paragraph (a)(2) ofthis section, shall be at least semiannualduring the active life of the facility(including closure) and the post-closureperiod. A minimum of four independentsamples from each background anddowngradient well (and spring ifappropriate) must be collected andanalyzed for the constituents listed inAppendix I of this part, or thealternative list approved in accordancewith paragraph (a)(2) of this section,



during the first semiannual samplingevent.

(c) At least one sample from eachbackground and downgradient well (andspring if appropriate) must be collectedand analyzed during subsequentsemiannual sampling events. The EPARegional Administrator may specify anappropriate alternative frequency forrepeated sampling and analysis forconstituents listed in Appendix I of thispart, or the alternative list approved inaccordance with paragraph (a)(2) of thisSection, during the active life (includingclosure) and the post-closure careperiod. The alternative frequency duringthe active life (including closure) shallbe no less than annual. The alternativefrequency shall be based onconsideration 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 unitand downgradient monitoring wellscreen (minimum distance of travel);

(5) Storm hydrograph of springs, ifappropriate; and

(6) Resource value of the aquifer.(d) If the person managing CKD waste

determines, pursuant to § 259.43(g), thatthere is a statistically significantincrease over background for one ormore of the constituents listed inAppendix I to this part at anymonitoring well (or spring ifappropriate) at the boundary specifiedunder § 259.41(a)(2), the personmanaging CKD waste:

(1) Must, within 14 days of thisfinding, place a notice in the operatingrecord indicating which constituentshave shown statistically significantchanges from background levels, andnotify the EPA Regional Administratorof this finding that this notice wasplaced in the operating record; and

(2) Must establish an assessmentmonitoring program meeting therequirements of § 259.45 within 90 days,except as provided for in paragraph(c)(3) of this section.

(3) The owner/operator maydemonstrate that a source other than aCKDLF unit caused the contaminationor that the statistically significantincrease resulted from error insampling, analysis, statisticalevaluation, or natural variation inground-water quality. A reportdocumenting this demonstration mustbe certified by a qualified ground-waterscientist and be placed in the operatingrecord. If a successful demonstration ismade and documented, the person

managing CKD waste may continuedetection monitoring as specified in thisSection. If, after 90 days, a successfuldemonstration is not made, the personmanaging CKD waste must initiate anassessment monitoring program asrequired in § 259.45.

§ 259.45 Assessment monitoring program.(a) Assessment monitoring is required

whenever a statistically significantincrease over background has beendetected for one or more of theconstituents listed in the Appendix I ofthis part.

(b) Within 90 days of triggering anassessment monitoring program, andannually thereafter, the personmanaging CKD waste must sample andanalyze the ground water for thefollowing hazardous metal constituentsidentified in Appendix VIII of Part 261of this chapter: antimony, arsenic,barium, beryllium, cadmium, chromium(total), lead, mercury, nickel, selenium,silver, and thallium. A minimum of onesample from each downgradient well(and spring if appropriate) must becollected and analyzed during eachsampling event. For any constituentdetected in the downgradient wells (andsprings if appropriate) as a result of themetal constituent analysis of AppendixVIII of Part 261 of this chapter, aminimum of four independent samplesfrom each background anddowngradient well (and spring ifappropriate) must be collected andanalyzed to establish background for theconstituents. The EPA RegionalAdministrator may specify anappropriate subset of wells (and springsif appropriate) to be sampled andanalyzed for metal constituents (aslisted in Appendix VIII of Part 261 ofthis chapter) during assessmentmonitoring. The EPA RegionalAdministrator may delete any of themetal constituent monitoringparameters required by paragraph (b) ofthis section for a CKDLF unit if it canbe shown that the removed constituentsare not reasonably expected to be in,mobilized by, or derived from the wastecontained in the unit.

(c) The EPA Regional Administratormay specify an appropriate alternatefrequency for repeated sampling andanalysis for the set of metal constituents(as listed in Appendix VIII of Part 261of this chapter) required by paragraph(b) of this Section, during the active life(including closure) and post-closurecare of the unit considering thefollowing factors:

(1) Lithology of the aquifer andunsaturated zone;

(2) Hydraulic conductivity of theaquifer and unsaturated zone;

(3) Ground-water flow rates;(4) Minimum distance between

upgradient edge of the CKDLF unit anddowngradient monitoring well screen(minimum distance of travel);

(5) Storm hydrograph of springs ifappropriate: and

(6) Resource value of the aquifer; and(7) Nature (fate and transport) of any

constituents detected in response to thisSection.

(d) After obtaining the results fromthe initial or subsequent samplingevents required in paragraph (b) of thisSection, the person managing CKDwaste must:

(1) Within 14 days, place a notice inthe operating record identifying themetal constituents (as listed inAppendix VIII of Part 261 of thischapter) that have been detected andnotify the EPA Regional Administratorof the identified constituents and thatthis notice has been placed in theoperating record;

(2) Within 90 days, and on at least asemiannual basis thereafter, resampleall wells (and springs if appropriate)specified by § 259.41(a), conductanalyses for all constituents inAppendix I of this part, and for thosemetal constituents in Appendix VIII ofPart 261 of this chapter that are detectedin response to paragraph (b) of thisSection, and record their concentrationsin the facility operating record. At leastone sample from each background anddowngradient well (and spring ifappropriate) must be collected andanalyzed during these sampling events.

(3) Establish backgroundconcentrations for any constituentsdetected pursuant to paragraph (b) or(d)(2) of this Section; and

(4) Establish ground-water protectionstandards for all constituents detectedpursuant to paragraph (b) or (d) of thisSection. The ground-water protectionstandards shall be established inaccordance with paragraph (h) of thisSection.

(e) If the concentrations of all metalconstituents (as listed in Appendix VIIIof Part 261 of this chapter) are shownto be at or below background values,using the statistical procedures in§ 259.43(g), for two consecutivesampling events, the person managingCKD waste must notify the EPARegional Administrator of this findingprior to returning to detectionmonitoring.

(f) If the concentrations of any metalconstituents (as listed in Appendix VIIIof Part 261 of this chapter) are abovebackground values, but allconcentrations are below the ground-water protection standard establishedunder paragraph (h) of this Section,



using the statistical procedures in§ 259.43(g), the person managing CKDwaste must continue assessmentmonitoring in accordance with thisSection.

(g) If one or more metal constituents(as listed in Appendix VIII of Part 261of this chapter) are detected atstatistically significant levels above theground-water protection standardestablished under paragraph (h) of thissection in any sampling event, theperson managing CKD waste must,within 14 days of this finding, place anotice in the operating recordidentifying the metal constituents thathave exceeded the ground-waterprotection standard and notify the EPARegional Administrator and allappropriate local government officialsthat the notice has been placed in theoperating record. The person managingCKD waste must also:

(1)(i) Characterize the nature andextent of the release by installingadditional monitoring wells asnecessary;

(ii) Install at least one additionalmonitoring well at the facility boundaryin the direction of contaminantmigration and sample this well inaccordance with paragraph (d)(2) of thisSection;

(iii) Notify all persons who own theland or reside on the land that directlyoverlies any part of the plume ofcontamination if contaminants havemigrated off-site if indicated bysampling of wells (and springs ifappropriate) in accordance withparagraph (g)(1) of this section; and

(iv) Initiate an assessment ofcorrective measures as required by§ 259.46 within 90 days; or

(2) May demonstrate that a sourceother than a CKDLF unit caused thecontamination, or that the SSI increaseresulted from error in sampling,analysis, statistical evaluation, ornatural variation in ground-waterquality. A report documenting thisdemonstration must be certified by aqualified ground-water scientist andplaced in the operating record. If asuccessful demonstration is made, theperson managing CKD waste mustcontinue monitoring in accordance withthe assessment monitoring programpursuant to this section, and may returnto detection monitoring if the metalconstituents (as listed in Appendix VIIIof part 261 of this chapter) are at orbelow background as specified inparagraph (e) of this section. Until asuccessful demonstration is made, theperson managing CKD waste mustcomply with paragraph (g) of thissection including initiating anassessment of corrective measures.

(h) The person managing CKD wastemust establish a ground-waterprotection standard for each metalconstituent (as listed in Appendix VIIIof Part 261 of this chapter) detected inthe ground water. The ground-waterprotection standard shall be:

(1) For constituents for which amaximum contaminant level (MCL) hasbeen promulgated under section 1412 ofthe Safe Drinking Water Act (codified)under 40 CFR Part 141, the MCL for thatconstituent;

(2) For constituents for which MCLshave not been promulgated, thebackground concentration for theconstituent established from wells inaccordance with § 259.41(a)(1); or

(3) For constituents for which thebackground level is higher than theMCL identified under paragraph (h)(1)of this section or health based levelsidentified under paragraph (i)(1) of thissection, the background concentration.

(i) The Director of an approved Statemay establish an alternative ground-water protection standard forconstituents for which MCLs have notbeen established. These ground-waterprotection standards shall beappropriate health based levels thatsatisfy the following criteria:

(1) The level is derived in a mannerconsistent with Agency guidelines forassessing the health risks ofenvironmental pollutants;

(2) The level is based on scientificallyvalid studies conducted in accordancewith the Toxic Substances Control ActGood Laboratory Practice Standards (40CFR Part 792) or equivalent;

(3) For carcinogens, the levelrepresents a concentration associatedwith 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 levelrepresents a concentration to which thehuman population (including sensitivesubgroups) could be exposed to on adaily basis that is likely to be withoutappreciable risk of deleterious effectsduring a lifetime. For purposes of thissubpart, systemic toxicants includetoxic chemicals that cause effects otherthan cancer or mutations.

(j) In establishing ground-waterprotection standards under paragraph (i)of this section, the Director of anapproved State may consider thefollowing:

(1) Multiple contaminants in theground water;

(2) Exposure threats to sensitiveenvironmental receptors; and

(3) Other site-specific exposure orpotential exposure to ground water.

§ 259.46 Assessment of correctivemeasures.

(a) Within 90 days of finding that anyof the metal constituents listed inAppendix VIII of Part 261 of thischapter have been detected at astatistically significant level exceedingthe ground-water protection standardsdefined under § 259.45(h), the personmanaging CKD waste must initiate anassessment of corrective measures. Suchan assessment must be completedwithin 90 days, or within an alternativeperiod of time decided by the EPARegional Administrator.

(b) The person managing CKD wastemust continue to monitor in accordancewith the assessment monitoringprogram as specified in § 259.45.

(c) The assessment shall include ananalysis of the effectiveness of potentialcorrective measures in meeting all of therequirements and objectives of theremedy as described under § 259.47,addressing at least the following:

(1) The performance, reliability, easeof implementation, and potentialimpacts of appropriate potentialremedies, including safety impacts,cross-media impacts, and control ofexposure to any residual contamination;

(2) The time required to begin andcomplete the remedy;

(3) The costs of remedyimplementation; and

(4) The institutional requirementssuch as State or local permitrequirements or other environmental orpublic health requirements that maysubstantially affect implementation ofthe remedies.

(d) The person managing CKD wastemust discuss the results of thecorrective measures assessment, prior tothe selection of remedy, in a publicmeeting with interested and affectedparties.

§ 259.47 Selection of remedy.

(a) Within 90 days of completing anassessment of corrective measuresconducted under § 259.46, the personmanaging CKD waste must select aremedy that, at a minimum, meets thestandards listed in paragraph (b) of thissection. Within 14 days of selecting aremedy, the person managing CKDwaste must submit to the EPA RegionalAdministrator a report describing theselected remedy which demonstrateshow the remedy meets the standards inparagraph (b) of this section. The reportmust include a notification that theowner and operator has placed a copyof the report in the operating record.

(b) Remedies must:(1) Be protective of human health and

the environment;



(2) Attain the ground-water protectionstandard as specified pursuant to§ 259.45(h);

(3) Control the source(s) of releases soas to reduce or eliminate, to themaximum extent practicable, furtherreleases of metal constituents (as listedin Appendix VIII of Part 261 of thischapter) into the environment that maypose a threat to human health or theenvironment; and

(4) Comply with standards formanagement of wastes as specified in§ 259.48(d).

(c) In selecting a remedy that meetsthe standards of paragraph (b) of thissection, the person managing CKD wasteshall consider the following evaluationfactors:

(1) The long- and short-termeffectiveness and protectiveness of thepotential remedies, along with thedegree of certainty that the remedy willprove successful based on considerationof the following:

(i) Magnitude of reduction of existingrisks;

(ii) Magnitude of residual risks interms of likelihood of further releasesdue to waste remaining followingimplementation of a remedy;

(iii) The type and degree of long-termmanagement required, includingmonitoring, operation, andmaintenance;

(iv) Short-term risks that might beposed to the community, workers, or theenvironment during implementation ofsuch a remedy, including potentialthreats to human health and theenvironment associated withexcavation, transportation, andredisposal of containment;

(v) Time until full protection isachieved;

(vi) Potential for exposure of humansand environmental receptors toremaining wastes, considering thepotential threat to human health and theenvironment associated withexcavation, transportation, redisposal,or containment;

(vii) Long-term reliability of theengineering and institutional controls;and

(viii) Potential need for replacementof the remedy.

(2) The effectiveness of the remedy incontrolling the source to reduce furtherreleases based on consideration of thefollowing factors:

(i) The extent to which containmentpractices will reduce further releases;and

(ii) The extent to which treatmenttechnologies may be used.

(3) The ease or difficulty ofimplementing a potential remedy(s)based on consideration of the followingtypes of factors:

(i) Degree of difficulty associated withconstructing the technology;

(ii) Expected operational reliability ofthe technologies;

(iii) Need to coordinate with andobtain necessary approvals and permitsfrom other agencies;

(iv) Availability of necessaryequipment and specialists; and

(v) Available capacity and location ofneeded treatment, storage, and disposalservices.

(4) Practicable capability of the personmanaging CKD waste, including aconsideration of the technical andeconomic capability.

(5) The degree to which communityconcerns are addressed by a potentialremedy(s).

(d) The person managing CKD wasteshall specify as part of the selectedremedy a schedule(s) for initiating andcompleting remedial activities. Such aschedule must require the initiation ofremedial activities within 90 daystaking into consideration the factors setforth in paragraphs (d) (1) through (8) ofthis section. The person managing CKDwaste must consider the followingfactors in determining the schedule ofremedial activities:

(1) Extent and nature ofcontamination;

(2) Practical capabilities of remedialtechnologies in achieving compliancewith ground-water protection standardsestablished under § 259.45 (g) or (h) andother objectives of the remedy;

(3) Availability of treatment ordisposal capacity for wastes managedduring implementation of the remedy;

(4) Desirability of utilizingtechnologies that are not currentlyavailable, but which may offersignificant advantages over alreadyavailable technologies in terms ofeffectiveness, reliability, safety, orability to achieve remedial objectives;

(5) Potential risks to human healthand the environment from exposure tocontamination prior to completion ofthe remedy;

(6) Resource value of the aquiferincluding:

(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 physicalstructures caused by exposure to wasteconstituents;

(v) The hydrogeologic characteristicsof the facility and surrounding land;

(vi) Ground-water removal andtreatment costs; and

(vii) The cost and availability ofalternative water supplies.

(7) Other relevant factors.(e) The EPA Regional Administrator

may determine an alternative period oftime for the person managing CKDwaste to initiate or complete remedialactivities pursuant to paragraph (d) ofthis section.

(f) The EPA Regional Administratormay determine that remediation of arelease of a constituent (as listed inAppendix VIII of Part 261 of thischapter) from a CKDLF unit is notnecessary if the person managing CKDwaste demonstrates to the satisfaction ofthe EPA Regional Administrator that:

(1) The ground water is additionallycontaminated by substances that haveoriginated from a source other than aCKDLF unit and those substances arepresent in concentrations such thatcleanup of the release from the CKDLFunit would provide no significantreduction in risk to actual or potentialreceptors; or

(2) The constituent(s) is present inground water that:

(i) Is not currently or reasonablyexpected to be a source of drinkingwater; and

(ii) Is not hydraulically connectedwith waters to which the hazardousconstituents are migrating or are likelyto migrate in a concentration(s) thatwould exceed the ground-waterprotection standards established under§ 259.45(h); or

(3) Remediation of the release(s) istechnically impracticable; or

(4) Remediation results inunacceptable cross-media impacts.

(g) This section shall not affect theauthority of the EPA RegionalAdministrator to require the personmanaging CKD waste to undertakesource control measures or othermeasures that may be necessary toeliminate or minimize further releasesto the ground water, to prevent exposureto the ground water, or to remediate theground water to concentrations that aretechnically practicable and significantlyreduce threats to human health or theenvironment.

§ 259.48 Implementation of the correctiveaction program.

(a) Based on the schedule establishedunder § 259.47(d) for initiation andcompletion of remedial activities, theowner/operator must:

(1) Establish and implement acorrective action ground-watermonitoring program that:

(i) At a minimum, meets therequirements of an assessmentmonitoring program under § 259.45;

(ii) Indicates the effectiveness of thecorrective action remedy; and



(iii) Demonstrates compliance withground-water protection standardspursuant to paragraph (e) of this section.

(2) Implement the corrective actionremedy selected under § 259.47; and

(3) Take any interim measuresnecessary to ensure the protection ofhuman health and the environment.Interim measures should, to the greatestextent practicable, be consistent withthe objectives of and contribute to theperformance of any remedy that may berequired pursuant to § 259.47. Thefollowing factors must be considered bya person managing CKD waste indetermining whether interim measuresare necessary:

(i) Time required to develop andimplement a final remedy;

(ii) Actual or potential exposure ofnearby populations or environmentalreceptors to hazardous constituents;

(iii) Actual or potential contaminationof drinking water supplies or sensitiveecosystems;

(iv) Further degradation of the groundwater that may occur if remedial actionis not initiated expeditiously;

(v) Weather conditions that may causehazardous constituents to migrate or bereleased;

(vi) Potential for exposure tohazardous constituents as a result of anaccident or failure of a container orhandling system; and

(vii) Other situations that may posethreats to human health and theenvironment.

(b) A person managing CKD wastemay determine, based on informationdeveloped after implementation of theremedy has begun or other information,that compliance with requirements of§ 259.47(b) are not being achievedthrough the remedy selected. In suchcases, the person managing CKD wastemust implement other methods ortechniques that could practicablyachieve compliance with therequirements, unless the personmanaging CKD waste makes thedetermination under paragraph (c) ofthis section.

(c) If the person managing CKD wastedetermines that compliance withrequirements under § 259.47(b) cannotbe practically achieved with anycurrently available methods, the personmanaging CKD waste must:

(1) Obtain certification of a qualifiedground-water scientist or approval bythe EPA Regional Administrator thatcompliance with requirements under§ 259.47(b) cannot be practicallyachieved with any currently availablemethods;

(2) Implement alternate measures tocontrol exposure of humans or theenvironment to residual contamination,

as necessary to protect human healthand the environment; and

(3) Implement alternate measures forcontrol of the sources of contamination,or for removal or decontamination ofequipment, units, devices, or structuresthat are:

(i) Technically practicable; and(ii) Consistent with the overall

objective of the remedy.(4) Notify the EPA Regional

Administrator within 14 days that areport justifying the alternativemeasures prior to implementing thealternative measures has been placed inthe operating record.

(d) All solid wastes that are managedpursuant to a remedy required under§ 259.47, or an interim measure requiredunder paragraph (a)(3) of this section,shall be managed in a manner:

(1) That is protective of human healthand the environment; and

(2) That complies with applicableRCRA requirements.

(e) Remedies selected pursuant to§ 259.47 shall be considered completewhen:

(1) The person managing CKD wastecomplies with the ground-waterprotection standards established under§§ 259.45(h) at all points within theplume of contamination that lie beyondthe ground-water monitoring well (andspring system if appropriate) establishedunder § 259.41(a).

(2) Compliance with the ground-waterprotection standards established under§ 259.45(h) has been achieved bydemonstrating that concentrations ofmetal constituents (as listed inAppendix VIII of Part 261 of thischapter) have not exceeded the ground-water protection standards for a periodof three consecutive years using thestatistical procedures and performancestandards in § 259.43 (g) and (h). TheEPA Regional Administrator mayspecify an alternative length of timeduring which the person managing CKDwaste must demonstrate thatconcentrations of metal constituents (aslisted in Appendix VIII of Part 261 ofthis chapter) have not exceeded theground-water protection standardstaking into consideration:

(i) Extent and concentration of therelease;

(ii) Behavior characteristics of thehazardous constituents in the groundwater;

(iii) Accuracy of monitoring ormodeling techniques, including anyseasonal, meteorological, or otherenvironmental variabilities that mayaffect the accuracy; and

(iv) Characteristics of the groundwater.

(3) All actions required to completethe remedy have been satisfied.

(f) Upon completion of the remedy,the person managing CKD waste mustnotify the EPA Regional Administratorwithin 14 days that a certification thatthe remedy has been completed incompliance with the requirements ofparagraph (e) of this section has beenplaced in the operating record. Thecertification must be signed by theperson managing CKD waste and by aqualified ground-water scientist orapproved by the EPA RegionalAdministrator.

(g) When, upon completion of thecertification, the person managing CKDwaste determines that the correctiveaction remedy has been completed inaccordance with the requirements underparagraph (e) of this section, the personmanaging CKD waste shall be releasedfrom the requirements for financialassurance for corrective action under§ 259.63.

§ 259.49 [Reserved]

Subpart F—Closure And Post-ClosureCare

§ 259.50 Closure criteria.(a) A final cover system must be

installed at all CKDLF units that isdesigned to minimize infiltration anderosion. The final cover system must bedesigned and constructed to:

(1) Have a saturated hydraulicconductivity less than or equal to thesaturated hydraulic conductivity of anybottom liner system or natural subsoilspresent, or a saturated hydraulicconductivity no greater than 1x10–5 cm/sec, whichever is less, and

(2) Minimize infiltration through theclosed CKDLF by the use of aninfiltration layer that contains aminimum 18-inches of earthen material,and

(3) Minimize erosion of the final coverby the use of an erosion layer thatcontains a sufficient thickness ofearthen material that is capable ofsustaining native plant growth, and

(4) Minimize the disruption of thefinal cover through a design thataccommodates settling and subsidence.

(b) The EPA Regional Administratormay approve an alternative final coverdesign that includes:

(1) An infiltration layer that achievesan equivalent reduction in infiltration asthe infiltration layer specified inparagraphs (a)(1) and (a)(2) of thissection, and

(2) An erosion layer that providesequivalent protection from wind andwater erosion as the erosion layerspecified in paragraph (a)(3) of thissection.



(c) The person managing CKD wastemust prepare a written closure plan thatdescribes the steps necessary to close allCKDLF units at any point during theiractive life in accordance with the coverdesign requirements in paragraphs (a) or(b) of this section, as applicable. Theclosure plan, at a minimum, mustinclude the following information:

(1) A description of the final cover,designed in accordance with paragraph(a) of this section and the methods andprocedures to be used to install thecover;

(2) An estimate of the largest area ofthe CKDLF unit ever requiring a finalcover as required under paragraph (a) ofthis section at any time during theactive life;

(3) An estimate of the maximuminventory of wastes ever on-site over theactive life of the landfill facility; and

(4) A schedule for completing allactivities necessary to satisfy the closurecriteria in this section.

(d) The person managing CKD wastemust notify the EPA RegionalAdministrator that a closure plan hasbeen prepared and placed in theoperating record no later than theeffective date of this rule, or by the dateof initial receipt of waste, whichever islater.

(e) Prior to beginning closure of eachCKDLF unit as specified in paragraph (f)of this section, the person managingCKD waste must notify the EPARegional Administrator that a notice ofthe intent to close the unit has beenplaced in the operating record.

(f) The closure activities of eachCKDLF unit must begin no later than 30days after the date on which the CKDLFunit receives the known final receipt ofwastes or, if the CKDLF unit hasremaining capacity and there is areasonable likelihood that the CKDLFunit will receive additional wastes, nolater than one year after the most recentreceipt of wastes. Extensions beyond theone-year deadline for beginning closuremay be granted by the EPA RegionalAdministrator if the person managingCKD waste demonstrates that theCKDLF unit has the capacity to receiveadditional wastes and the personmanaging CKD waste has taken and willcontinue to take all steps necessary toprevent threats to human health and theenvironmental from the unclosedCKDLF unit.

(g) The closure activities of all CKDLFunits must be completed in accordancewith the closure plan within 180 daysfollowing the beginning of closure asspecified in paragraph (f) of thisSection. Extensions of the closureperiod may be granted by the EPARegional Administrator if the person

managing CKD waste demonstrates thatclosure will, of necessity, take longerthan 180 days and he or she has takenand will continue to take all steps toprevent threats to human health and theenvironment from the unclosed CKDLFunit.

(h) Within 14 days following closureof each CKDLF unit, the personmanaging CKD waste must notify theEPA Regional Administrator that acertification, signed by an independentregistered professional engineer, facilitymanagement, or approved by the EPARegional Administrator, verifying thatclosure has been completed inaccordance with the closure plan, hasbeen placed in the operating record.

(i)(1) Within 14 days followingclosure of all CKDLF units, the personmanaging CKD waste must record anotation on the deed to the landfillfacility property, or some otherinstrument that is normally examinedduring title search, and notify the EPARegional Administrator that the notationhas been recorded and a copy has beenplaced in the operating record.

(2) The notation on the deed must inperpetuity notify any potentialpurchaser of the property that the landhas been used for disposal of CKDwaste.

(j) The person managing CKD wastemay request permission from the EPARegional Administrator to remove thenotation from the deed if all CKD wastehas been removed from the facility.

§ 259.51 Post-closure care requirements.

(a) Following closure of each CKDLFunit, the person managing CKD wastemust conduct post-closure care. Post-closure care must be conducted for 30years, except as provided underparagraph (b) of this Section, andconsist of at least the following:

(1) Maintaining the integrity andeffectiveness of any final cover,including making repairs to the cover asnecessary to correct the effects ofsettlement, subsidence, erosion, or otherevents, and preventing run-on and run-off from eroding or otherwise damagingthe final cover;

(2) Maintaining and operating theleachate collection system inaccordance with the requirements in§ 259.30, if applicable. The EPARegional Administrator may allow theperson managing CKD waste to stopmanaging leachate if the personmanaging CKD waste demonstrates thatleachate no longer poses a threat tohuman health and the environment; and

(3) Monitoring the ground water inaccordance with the requirements ofSubpart E of this part and maintaining

the ground-water monitoring system, ifapplicable.

(b) The length of the post-closure careperiod may be:

(1) Decreased by the EPA RegionalAdministrator if the person managingCKD waste demonstrates that thereduced period is sufficient to protecthuman health and the environment andthis demonstration is approved by theEPA Regional Administrator; or

(2) Increased by the EPA RegionalAdministrator if the EPA RegionalAdministrator determines that thelengthened period is necessary toprotect human health and theenvironment.

(c) For all CKDLF units the personmanaging CKD waste must prepare awritten post-closure care plan thatincludes, at a minimum, the followinginformation:

(1) A description of the monitoringand maintenance activities required inparagraph (a) of this Section for eachCKDLF unit, and the frequency at whichthese activities will be performed;

(2) Name, address, and telephonenumber of the person or office to contactabout the facility during the post-closure period; and

(3) A description of the planned usesof the property during the post-closureperiod. Post-closure use of the propertyshall not disturb the integrity of thefinal cover, liner(s), or any othercomponents of the containment system,or the function of the monitoringsystems unless necessary to complywith the requirements in this part. TheEPA Regional Administrator mayapprove any other disturbance if theperson managing CKD wastedemonstrates that disturbance of thefinal cover, liner or other component ofthe containment system, including anyremoval of waste, will not increase thepotential threat to human health or theenvironment.

(d) The person managing CKD wastemust notify the EPA RegionalAdministrator that a post-closure careplan has been prepared and placed inthe operating record no later than theeffective date of this rule, or by the dateof initial receipt of waste, whichever islater.

(e) Within 14 days followingcompletion of the post-closure careperiod for each CKDLF unit, the personmanaging CKD waste must notify theEPA Regional Administrator that acertification, signed by an independent,registered professional engineer orapproved by the EPA RegionalAdministrator, verifying that post-closure care has been completed inaccordance with the post-closure plan,has been placed in the operating record.



§§ 259.52–259.59 [Reserved]

Subpart G—Financial AssuranceCriteria

§ 259.60 Applicability.(a) The requirements of this section

apply to owners and operators of allCKDLF units, except owners oroperators who are State or FederalGovernment entities whose debts andliabilities are the debts and liabilities ofa State or the United States.

(b) In this part, Owner means theperson(s) who owns a CKDLF unit orpart of a CKDLF unit.

Operator means the person(s)responsible for the overall operation ofa CKDLF unit or part of a CKDLF unit.

§ 259.61 Financial assurance for closure.(a) The owner or operator must have

a detailed written estimate, in currentdollars, of the cost of hiring a third partyto close the largest area of all CKDLFunits ever requiring a final cover asrequired under § 259.50 at any timeduring the active life in accordance withthe closure plan. The owner or operatormust notify the EPA RegionalAdministrator that the estimate has beenplaced in the operating record.

(1) The cost estimate must equal thecost of closing the largest area of allCKDLF unit ever requiring a final coverat any time during the active life whenthe extent and manner of its operationwould make closure the most expensive,as indicated by its closure plan (see§ 259.50(c)(2)).

(2) During the active life of the CKDLFunit, the owner or operator mustannually adjust the closure cost estimatefor inflation.

(3) The owner or operator mustincrease the closure cost estimate andthe amount of financial assuranceprovided under paragraph (b) of thisSection if changes to the closure plan orCKDLF unit conditions increase themaximum cost of closure at any timeduring the remaining active life.

(4) The owner or operator may reducethe closure cost estimate and theamount of financial assurance providedunder paragraph (b) of this Section if thecost estimate exceeds the maximum costof closure at any time during theremaining life of the CKDLF unit.Within 14 days of this finding, theperson managing CKD waste must notifythe EPA Regional Administrator that thejustification for the reduction of theclosure cost estimate and the amount offinancial assurance has been placed inthe operating record.

(b) For each CKDLF unit receivingCKD waste after the effective date of therule, the owner or operator must

establish financial assurance for closurein compliance with § 259.64. The owneror operator must provide continuouscoverage for closure until released fromfinancial assurance requirements bydemonstrating compliance with § 259.50(h) and (i).

§ 259.62 Financial assurance for post-closure care.

(a) The owner or operator must havea detailed written estimate, in currentdollars, of the cost of hiring a third partyto conduct post-closure care for theCKDLF unit in compliance with thepost-closure care plan developed under§ 259.51. The post-closure care costestimate used to demonstrate financialassurance in paragraph (b) of thisSection must account for the total costsof conducting post-closure care,including annual and periodic costs asdescribed in the post-closure care planover the entire post-closure care period.The owner or operator must notify theEPA Regional Administrator that theestimate has been placed in theoperating record.

(1) The cost estimate for post-closurecare must be based on the mostexpensive costs of post-closure careduring the entire post-closure careperiod.

(2) During the active life of the CKDLFunit and during the post-closure careperiod, the owner or operator mustannually adjust the post-closure costestimate for inflation.

(3) The owner or operator mustincrease the post-closure care costestimate and the amount of financialassurance provided under paragraph (b)of this section if changes in the post-closure plan or CKDLF unit conditionsincrease the maximum costs of post-closure care.

(4) The owner or operator may reducethe post-closure care cost estimate andthe amount of financial assuranceprovided under paragraph (b) of thissection if the cost estimate exceeds themaximum costs of post-closure careremaining over the post-closure careperiod. Within 14 days of this finding,the owner or operator must notify theEPA Regional Administrator that thejustification for the reduction of thepost-closure cost estimate and theamount of financial assurance has beenplaced in the operating record.

(b) The owner or operator of eachCKDLF unit must establish, in a mannerin accordance with § 259.64, financialassurance for the costs of post-closurecare as required under § 259.51. Theowner or operator must providecontinuous coverage for post-closurecare until released from financialassurance requirements for post-closure

care by demonstrating compliance with§ 259.51(e).

§ 259.63 Financial assurance for correctiveaction.

(a) An owner or operator in a CKDLFunit required to undertake a correctiveaction program under § 259.48 musthave a detailed written estimate, incurrent dollars, of the cost of hiring athird party to perform the correctiveaction in accordance with the programrequired under § 259.48. The correctiveaction cost estimate must account forthe total costs of corrective actionactivities as described in the correctiveaction plan for the entire correctiveaction period. Prior to undertakingcorrective action under § 259.48, theowner or operator must notify the EPARegional Administrator that the estimatehas been placed in the operating record.

(1) The owner or operator mustannually adjust the estimate forinflation until the corrective actionprogram is completed in accordancewith § 259.48(f).

(2) The owner or operator mustincrease the corrective action costestimate and the amount of financialassurance provided under paragraph (b)of this section if changes in thecorrective action program or CKDLFunit conditions increase the maximumcosts of corrective action.

(3) The owner or operator may reducethe amount of the corrective action costestimate and the amount of financialassurance provided under paragraph (b)of this section if the cost estimateexceeds the maximum remaining costsof corrective action. Within 14 days ofmaking an annual adjustment underparagraph (a)(1) of this section, theowner or operator must notify the EPARegional Administrator that thejustification for the reduction orincrease of the corrective action costestimate and the amount of financialassurance has been placed in theoperating record.

(b) An owner or operator in a CKDLFunit, if required to undertake acorrective action program under§ 259.48 must establish financialassurance using the allowablemechanisms defined under § 259.64. Anowner or operator in a CKDLF unit mustestablish financial assurance for allcorrective action programs initiatedduring the active life of the unit,closure, and post-closure care periods.The owner or operator must providecontinuous coverage for correctiveaction until released from financialassurance requirements for correctiveaction by demonstrating compliancewith §§ 259.48 (f) and (g).



§ 259.64 Allowable mechanisms.

The mechanisms used to demonstratefinancial assurance under this Sectionmust ensure that the funds necessary tomeet the costs of closure, post-closurecare, and corrective action for knownreleases will be available whenever theyare needed. Persons managing CKDwaste must choose from the optionsspecified in paragraphs (a) through (j) ofthis section.

(a) Trust Fund. (1) The owner oroperator may satisfy the requirements ofthis section by establishing a trust fundwhich conforms to the requirements ofthis paragraph. The trustee must be anentity which has the authority to act asa trustee and whose trust operations areregulated and examined by a Federal orState agency. A copy of the trustagreement must be placed in thefacility’s operating record.

(2) Payments into the trust fund mustbe made annually by the owner oroperator over the term of the initialcontrol mechanism or over theremaining life of the CKDLF unit,whichever is shorter, in the case of atrust fund for closure or post-closurecare, or over one-half of the estimatedlength of the corrective action programin the case of corrective action forknown releases. This period is referredto as the pay-in period.

(3) For a trust fund used todemonstrate financial assurance forclosure and post-closure care, the firstpayment into the fund must be at leastequal to the current cost estimate forclosure or post-closure care, except asprovided in paragraph (k) of thissection, divided by the number of yearsin the pay-in period as defined inparagraph (a)(2) of this section. Theamount of subsequent payments mustbe determined by the following formula:Next Payment = [CE¥CV]/YWhere:

CE is the current cost estimate for closureor post-closure care (updated for inflation orother changes), CV is the current value of thetrust fund, and Y is the number of yearsremaining in the pay-in period.

(4) For a trust fund used todemonstrate financial assurance forcorrective action, the first payment intothe trust fund must be at least equal toone-half of the current cost estimate forcorrective action, except as provided inparagraph (k) of this section, divided bythe number of years in the correctiveaction pay-in period as defined inparagraph (a)(2) of this Section. Theamount of subsequent payments mustbe determined by the followingformula:Next Payment = [RB¥CV]/YWhere:

RB is the most recent estimate of therequired trust fund balance for correctiveaction (i.e., the total costs that will beincurred during the second half of thecorrective action period), CV is the currentvalue of the trust fund, and Y is the numberof years remaining in the pay-in period.

(5) The initial payment into the trustfund must be made before the initialreceipt of waste or before two yearselapse after the effective date of thisrule, whichever is later; in the case ofclosure and post-closure care, or no laterthan 120 days after the corrective actionremedy has been selected in accordancewith the requirements of § 259.48.

(6) If the owner or operator establishesa trust fund after having used one ormore alternate mechanisms specified inthis Section, the initial payment into thetrust fund must be at least the amountthat the fund would contain if the trustfund were established initially andannual payments made according to thespecifications of this paragraph andparagraph (a) of this section, asapplicable.

(7) The owner or operator, or otherperson authorized to conduct closure,post-closure care, or corrective actionactivities may request reimbursementfrom the trustee for these expenditures.Requests for reimbursement will begranted by the trustee only if sufficientfunds are remaining in the trust fund tocover the remaining costs of closure,post-closure care, or corrective action,and if justification and documentationof the cost is placed in the operatingrecord. Prior to reimbursement, theowner or operator must notify the EPARegional Administrator that thedocumentation of the justification forreimbursement has been placed in theoperating record and thatreimbursement has been received.

(8) The trust fund may be terminatedby the owner or operator only if theowner or operator substitutes alternatefinancial assurance as specified in thisSection or if he is no longer required todemonstrate financial responsibility inaccordance with the requirements of§ 259.61(b), § 259.62(b), or § 259.63(b).

(b) Surety Bond GuaranteeingPayment or Performance. (1) The owneror operator may demonstrate financialassurance for closure or post-closurecare by obtaining a payment orperformance surety bond whichconforms to the requirements of thisparagraph. The owner or operator maydemonstrate financial assurance forcorrective action by obtaining aperformance bond which conforms tothe requirements of this paragraph. Thebond must be effective before the initialreceipt of waste or before two yearselapse after [the effective date of this

rule], whichever is later; in the case ofclosure and post-closure care, the bondmust be effective no later than 120 daysafter the corrective action remedy hasbeen selected in accordance with therequirements of § 259.48. Within 14days after demonstrating financialassurance according to this section, theowner or operator must notify the EPARegional Administrator that a copy ofthe bond has been placed in theoperating record. The surety companyissuing the bond must, at a minimum,be among those listed as acceptablesureties on Federal bonds in Circular570 of the U.S. Department of theTreasury.

(2) The penal sum of the bond mustbe in an amount at least equal to thecurrent closure, post-closure care orcorrective action cost estimate,whichever is applicable, except asprovided in paragraph (k) of thissection.

(3) Under the terms of the bond, thesurety will become liable on the bondobligation when the owner or operatorfails to perform as guaranteed by thebond.

(4) The owner or operator mustestablish a standby trust fund. Thestandby trust fund must meet therequirements of paragraph (a) of thisSection except the requirements forinitial payment and subsequent annualpayments specified in paragraphs (a)(2),(3), (4) and (5) of this section.

(5) Payments made under the terms ofthe bond will be deposited by the suretydirectly into the standby trust fund.Payments from the trust fund must beapproved by the trustee.

(6) Under the terms of the bond, thesurety may cancel the bond by sendingnotice of cancellation by certified mailto the owner and operator and to theEPA Regional Administrator 120 days inadvance of cancellation. If the suretycancels the bond, the owner or operatormust obtain alternate financialassurance as specified in this section.

(7) The owner or operator may cancelthe bond only if alternate financialassurance is substituted as specified inthis Section or if the owner or operatoris no longer required to demonstratefinancial responsibility in accordancewith § 259.61(b), § 259.62(b) or§ 259.63(b).

(c) Letter of Credit. (1) The owner oroperator may satisfy the requirements ofthis Section by obtaining an irrevocablestandby letter of credit which conformsto the requirements of this paragraph.The letter of credit must be effectivebefore the initial receipt of waste orbefore two years elapse after theeffective date of this rule, whichever islater; in the case of closure and post-



closure care, the letter of credit must beeffective no later than 120 days after thecorrective action remedy has beenselected in accordance with therequirements of § 259.48. Within 14days after obtaining a letter of credit, theowner or operator must notify the EPARegional Administrator that a copy ofthe letter of credit has been placed inthe operating record. The issuinginstitution must be an entity which hasthe authority to issue letters of creditand whose letter-of-credit operations areregulated and examined by a Federal orState agency.

(2) A letter from the owner or operatorreferring to the letter of credit bynumber, issuing institution, and date,and providing the followinginformation: Name, and address of thefacility, and the amount of fundsassured, must be included with theletter of credit in the operating record.

(3) The letter of credit must beirrevocable and issued for a period of atleast one year in an amount at leastequal to the current cost estimate forclosure, post-closure care or correctiveaction, whichever is applicable, exceptas provided in paragraph (k) of thisSection. The letter of credit mustprovide that the expiration date will beautomatically extended for a period of atleast one year unless the issuinginstitution has canceled the letter ofcredit by sending notice of cancellationby certified mail to the owner andoperator and to the EPA RegionalAdministrator 120 days in advance ofcancellation. If the letter of credit iscanceled by the issuing institution, theowner or operator must obtain alternatefinancial assurance.

(4) The owner or operator may cancelthe letter of credit only if alternatefinancial assurance is substituted asspecified in this Section or if the owneror operator is released from therequirements of this Section inaccordance with § 259.61(b), § 259.62(b)or § 259.63(b).

(d) Insurance. (1) The owner oroperator may demonstrate financialassurance for closure and post-closurecare by obtaining insurance whichconforms to the requirements of thisparagraph. The insurance must beeffective before the initial receipt ofwaste or before two years elapse afterthe effective date of the requirements ofthis rule, whichever is later; in the caseof closure and post-closure care, theinsurance must be effective no later than120 days after the corrective actionremedy has been selected in accordancewith the requirements of § 259.48. At aminimum, the insurer must be licensedto transact the business of insurance, oreligible to provide insurance as an

excess or surplus lines insurer, in oneor more States. Within 14 days afterobtaining insurance, the owner oroperator must notify the EPA RegionalAdministrator that a copy of theinsurance policy has been placed in theoperating record.

(2) The closure or post-closure careinsurance policy must guarantee thatfunds will be available to close theCKDLF unit whenever final closureoccurs and/or to provide post-closurecare for the CKDLF unit whenever thepost-closure care period begins,whichever is applicable. The policymust also guarantee that once closure orpost-closure care begins, the insurer willbe responsible for the paying out offunds to the owner or operator or otherperson authorized to conduct closure orpost-closure care, up to an amount equalto the face amount of the policy.

(3) The insurance policy must beissued for a face amount at least equalto the current cost estimate for closureor post-closure care, whichever isapplicable. The term face amount meansthe total amount the insurer is obligatedto pay under the policy. Actualpayments by the insurer will not changethe face amount, although the insurer’sfuture liability will be lowered by theamount of the payments.

(4) A owner or operator, or any otherperson authorized to conduct closure orpost-closure care, may receivereimbursements for closure or post-closure expenditures, whichever isapplicable. Requests for reimbursementwill be granted by the insurer only if theremaining value of the policy issufficient to cover the remaining costs ofclosure or post-closure care, and ifjustification and documentation of thecost is placed in the operating record.Within 14 days after reimbursement, theowner or operator must notify the EPARegional Administrator that thedocumentation of the justification forreimbursement has been placed in theoperating record and thatreimbursement has been received.

(5) Each policy must contain aprovision allowing assignment of thepolicy to a successor owner or operator.Such assignment may be conditionalupon consent of the insurer, providedthat such consent is not unreasonablyrefused.

(6) The insurance policy must providethat the insurer may not cancel,terminate or fail to renew the policyexcept for failure of payment ofpremium. The automatic renewal of thepolicy must, at a minimum, provide theinsured with the option of renewal atthe 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 bycertified mail to the owner and operatorand to the EPA Regional Administrator120 days in advance of cancellation. Ifthe insurer cancels the policy, theowner or operator must obtain alternatefinancial assurance as specified in thissection.

(7) For insurance policies providingcoverage for post-closure care,commencing on the date that liability tomake payments pursuant to the policyaccrues, the insurer will thereafterannually increase the face amount of thepolicy. Such increase must beequivalent to the face amount of thepolicy, less any payments made,multiplied by an amount equivalent to85 percent of the most recentinvestment rate or of the equivalentcoupon-issue yield announced by theU.S. Treasury for 26-week Treasurysecurities.

(8) The owner or operator may cancelthe insurance policy only if alternatefinancial assurance is substituted asspecified in this Section or if the owneror operator is no longer required todemonstrate financial responsibility inaccordance with the requirements of§ 259.61(b), § 259.62(b) or § 259.63(b).

(e) Corporate Financial Test. Theowner or operator that satisfies therequirements of this paragraph maydemonstrate financial assurance up tothe 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 BBBas 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 comparingtotal liabilities to net worth; or

(C) A ratio of greater than 0.10comparing the sum of net income plusdepreciation, depletion andamortization, minus $10 million, to totalliabilities.

(ii) The tangible net worth of theowner or operator must be greater than:

(A) The sum of the current closure,post-closure care, corrective action costestimates and any other environmentalobligations, including guarantees,covered by a financial test plus $10million except as provided in paragraph(e)(1)(ii)(B) of this section.

(B) $10 million in net worth plus theamount of any guarantees that have notbeen recognized as liabilities on thefinancial statements, provided all of thecurrent closure, post-closure care, andcorrective action costs and any otherenvironmental obligations covered by afinancial test are recognized asliabilities on the owner’s or operator’saudited financial statements, and



subject to the approval of the EPARegional Administrator.

(iii) The owner or operator must haveassets located in the United Statesamounting to at least the sum of currentclosure, post-closure care, correctiveaction cost estimates and any otherenvironmental obligations covered by afinancial test as described in paragraph(e)(3) of this Section.

(2) Recordkeeping and reportingrequirements.

(i) As they become available, theowner or operator must place thefollowing items into the facility’soperating record:

(A) A letter signed by the owner’s oroperator’s chief financial officer that:

(1) Lists all the current cost estimatescovered by a financial test, including,but not limited to, cost estimatesrequired for municipal solid wastemanagement facilities under 40 CFRPart 258, cost estimates required for UICfacilities under 40 CFR Part 144, ifapplicable, cost estimates required forpetroleum underground storage tankfacilities under 40 CFR Part 280, ifapplicable, cost estimates required forPCB storage facilities under 40 CFR Part261, if applicable, and cost estimatesrequired for hazardous waste treatment,storage, and disposal facilities under 40CFR Parts 264 and 265, if applicable;and

(2) Provides evidence demonstratingthat the firm meets the conditions ofeither 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 independentcertified public accountant’sunqualified opinion of the owner’s oroperator’s financial statements for thelatest completed fiscal year. To beeligible to use the financial test, theowner’s or operator’s financialstatements must receive an unqualifiedopinion from the independent certifiedpublic accountant. An adverse opinion,disclaimer of opinion, or other qualifiedopinion will be cause for disallowance,with the potential exception forqualified opinions provided in the nextsentence. The EPA RegionalAdministrator may evaluate qualifiedopinions on a case-by-case basis andallow use of the financial test in caseswhere the EPA Regional Administratordeems that the matters which form thebasis for the qualification areinsufficient to warrant disallowance ofthe test. If the EPA RegionalAdministrator does not allow use of thetest, the owner or operator must providealternate financial assurance that meetsthe requirements of this Section.

(C) If the chief financial officer’s letterproviding evidence of financial

assurance includes financial datashowing that owner or operator satisfiesparagraphs (e)(1)(i)(B) or (e)(1)(i)(C) ofthis section that are different from datain the audited financial statementsreferred to in paragraph (e)(2)(i)(B) ofthis Section or any other auditedfinancial statement or data filed withthe Securities and ExchangeCommission (SEC) then a special reportfrom the owner’s or operator’sindependent certified public accountantto the owner or operator is required. Thespecial report shall be based upon anagreed upon procedures engagement inaccordance with professional auditingstandards and shall describe theprocedures performed in comparing thedata in the chief financial officer’s letterderived from the independentlyaudited, year-end financial statementsfor the latest fiscal year with theamounts in such financial statements,the findings of that comparison, and thereasons for any differences.

(D) If the chief financial officer’s letterprovides a demonstration that the firmhas assured for environmentalobligations as provided in paragraph(e)(1)(ii)(B) of this section, then theletter shall include a report from theindependent certified public accountantthat verifies that all of theenvironmental obligations covered by afinancial test have been recognized asliabilities on the audited financialstatements, how these obligations havebeen measured and reported, and thatthe tangible net worth of the firm is atleast $10 million plus the amount of anyguarantees provided.

(ii) The owner or operator must placethe items specified in paragraph (e)(2)(i)of this section in the operating recordand notify the EPA RegionalAdministrator that these items havebeen placed in the operating recordbefore the initial receipt of waste orbefore two years elapse after theeffective date of this rule, whichever islater; in the case of closure, and post-closure care, items specified inparagraph (e)(2)(i) of this section musthave been placed in the operatingrecord no later than 120 days after thecorrective action remedy has beenselected in accordance with therequirements of § 259.48.

(iii) After the initial placement ofitems specified in paragraph (e)(2)(i) ofthis section in the operating record, theowner or operator must annually updatethe information and place updatedinformation in the operating recordwithin 90 days following the close ofthe owner or operator’s fiscal year. TheEPA Regional Administrator mayprovide up to an additional 45 days fora owner or operator who can

demonstrate that 90 days is insufficienttime to acquire audited financialstatements. The updated informationmust consist of all items specified inparagraph (e)(2)(i) of this section.

(iv) The owner or operator is nolonger required to submit the itemsspecified in paragraph (e)(2) of thissection or comply with the requirementsof this paragraph when:

(A) The person substitutes alternatefinancial assurance as specified in thissection that is not subject to theserecordkeeping and reportingrequirements; or

(B) The person is released from therequirements of this section inaccordance with § 259.61(b), § 259.62(b),or § 259.63(b).

(v) If the owner or operator no longermeets the requirements of paragraph(e)(1) of this section, the owner oroperator must, within 120 daysfollowing the close of the owner oroperator’s fiscal year, obtain alternativefinancial assurance that meets therequirements of this section, place therequired submissions for that assurancein the operating record, and notify theEPA Regional Administrator that theowner or operator no longer meets thecriteria of the financial test and thatalternate assurance has been obtained.

(vi) The EPA Regional Administratormay, based on a reasonable belief thatthe owner or operator may no longermeet the requirements of paragraph(e)(1) of this section, require at any timethe owner or operator to provide reportsof its financial condition in addition toor including current financial testdocumentation as specified inparagraph (e)(2) of this section. If theEPA Regional Administrator finds thatthe owner or operator no longer meetsthe requirements of paragraph (e)(1) ofthis section, within 120 days of thisfinding the owner or operator mustprovide alternate financial assurancethat meets the requirements of thissection.

(3) Calculation of costs to be assured.When calculating the current costestimates for closure, post-closure care,corrective action, or the sum of thecombination of such costs to be covered,and any other environmental obligationsassured by a financial test referred to inparagraph (e) of this section, the owneror operator must include cost estimatesrequired for cement kiln dust solidwaste management facilities under thispart, as well as cost estimates requiredfor the following environmentalobligations, if the person assures themthrough a financial test: obligationsassociated with UIC facilities under 40CFR Part 144, petroleum undergroundstorage tank facilities under 40 CFR Part



280, PCB storage facilities under 40 CFRPart 261, and hazardous wastetreatment, storage, and disposalfacilities under 40 CFR Parts 264 and265.

(f) Corporate Guarantee. (1) Theowner or operator may meet therequirements of this section byobtaining a written guarantee. Theguarantor must be the direct or higher-tier parent corporation of the owner oroperator, a firm whose parentcorporation is also the parentcorporation of the owner or operator, ora firm with a ‘‘substantial businessrelationship’’ with the owner oroperator. The guarantor must meet therequirements for owners or operators inparagraph (e) of this section and mustcomply with the terms of the guarantee.A certified copy of the guarantee mustbe placed in the facility’s operatingrecord along with copies of the letterfrom the guarantor’s chief financialofficer and accountants’ opinions. If theguarantor’s parent corporation is alsothe parent corporation of the owner oroperator, the letter from the guarantor’schief financial officer must describe thevalue received in consideration of theguarantee. If the guarantor is a firm witha ‘‘substantial business relationship’’with the owner or operator, this lettermust describe this ‘‘substantial businessrelationship’’ and the value received inconsideration of the guarantee.

(2) The guarantee must be effectiveand all required submissions placed inthe operating record before the initialreceipt of waste or before the effectivedate of the requirements of this section,whichever is later, in the case of closureand post-closure care, or in the case ofcorrective action no later than 120 daysafter the corrective action remedy hasbeen selected in accordance with therequirements of § 259.48.

(3) The terms of the guarantee mustprovide that:

(i) If the owner or operator fails toperform closure, post-closure care, and/or corrective action of a facility coveredby the guarantee, the guarantor will:

(A) Perform, or pay a third party toperform, closure, post-closure care, and/or corrective action as required(performance guarantee); or

(B) Establish a fully funded trust fundas specified in paragraph (a) of thissection in the name of the owner oroperator (payment guarantee).

(ii) The guarantee will remain in forcefor as long as the owner or operatormust comply with the applicablefinancial assurance requirements of thisSubpart unless the guarantor sends priornotice of cancellation by certified mailto the owner or operator and to the EPARegional Administrator. Cancellation

may not occur, however, during the 120days beginning on the date of receipt ofthe notice of cancellation by both theowner or operator and the EPA RegionalAdministrator, as evidenced by thereturn receipts.

(iii) If notice of cancellation is given,the owner or operator must, within 90days following receipt of thecancellation notice by the owner oroperator and the EPA RegionalAdministrator, obtain alternate financialassurance, place evidence of thatalternate financial assurance in thefacility operating record, and notify theEPA Regional Administrator. If theowner or operator fails to providealternate financial assurance within the90-day period, the guarantor mustprovide that alternate assurance within120 days of the cancellation notice,obtain alternative assurance, placeevidence of the alternate assurance inthe facility operating record, and notifythe EPA Regional Administrator.

(4) If a corporate guarantor no longermeets the requirements of paragraph(e)(1) of this section, the owner oroperator must, within 90 days, obtainalternative assurance, place evidence ofthe alternate assurance in the facilityoperating record, and notify the EPARegional Administrator. If the owner oroperator fails to provide alternatefinancial assurance within the 90-dayperiod, the guarantor must provide thatalternate assurance within the next 30days.

(5) The owner or operator is no longerrequired to meet the requirements ofparagraph (g) of this section when:

(i) The owner or operator substitutesalternate financial assurance asspecified in this section; or

(ii) The owner or operator is releasedfrom the requirements of this section inaccordance with § 259.61(b), § 259.62(b),or § 259.63(b).

(g) State-Approved Mechanism. In anauthorized State, the owner or operatormay satisfy the requirements of thissection by obtaining any othermechanism that meets the criteriaspecified in paragraph (j)(1) Of thissection, and that is approved by theState Director.

(h) State Assumption ofResponsibility. If the State Directoreither assumes legal responsibility forthe person’s compliance with theclosure, post-closure care and/orcorrective action requirements of thispart, or assures that the funds will beavailable from State sources to cover therequirements, the owner or operator willbe in compliance with the requirementsof this section. Any State assumption ofresponsibility must meet the criteria

specified in paragraph (j)(1) of thissection.

(i) Use of multiple mechanisms. Theowner or operator may demonstratefinancial assurance for closure, post-closure, and corrective action, asrequired by § 259.61, § 259.62, and§ 259.63 by establishing more than onemechanism per facility, except thatmechanisms guaranteeing performancerather than payment, may not becombined with other instruments. Themechanisms must be as specified inparagraphs (a), (b), (c), (d), (e), (f), (g),(h), and (i) of this section, except thatfinancial assurance for an amount atleast equal to the current cost estimatefor closure, post-closure care, and/orcorrective action may be provided by acombination of mechanisms rather thana single mechanism.

(j) The language of the mechanismslisted in paragraphs (a), (b), (c), (d), (e),(f), (g), (h), and (i) of this section mustensure that the instruments satisfy thefollowing criteria:

(1) The financial assurancemechanisms must ensure that theamount of funds assured is sufficient tocover the costs of closure, post-closurecare, and corrective action for knownreleases when needed;

(2) The financial assurancemechanisms must ensure that funds willbe available in a timely fashion whenneeded;

(3) The financial assurancemechanisms must be obtained by theowner or operator by the effective dateof these requirements or prior to theinitial receipt of solid waste, whicheveris later, in the case of closure and post-closure care, and no later than 120 daysafter the corrective action remedy hasbeen selected in accordance with therequirements of § 259.48, until theowner or operator is released from thefinancial assurance requirements under§§ 259.61, 259.62 and 259.63.

(4) The financial assurancemechanisms must be legally valid,binding, and enforceable under Stateand Federal law.

§ 259.65 Discounting.The EPA Regional Administrator may

allow discounting of closure costestimates in § 259.61(a), post-closurecost estimates in § 259.62(a), and/orcorrective action costs in § 259.63(a) upto the rate of return for essentially riskfree investments, net of inflation, underthe following conditions:

(a) The EPA Regional Administratordetermines that cost estimates arecomplete and accurate and the owner oroperator has submitted a statement froma Registered Professional Engineer sostating;



(b) The EPA Regional Administratorfinds the facility in compliance withapplicable and appropriate permitconditions;

(c) The EPA Regional Administratordetermines that the closure date iscertain and the owner or operatorcertifies that there are no foreseeablefactors that will change the estimate ofsite life; and

(d) Discounted cost estimates must beadjusted annually to reflect inflationand years of remaining life.

APPENDIX I TO PART 259—CONSTITU-ENTS FOR DETECTION MONITORING

Common name 1

pHConductivityTotal Dissolved SolidsPotassiumChlorideSodiumSulfate

1 Common names are those used widely ingovernment regulations, scientific publications,and commerce; synonyms exist for manychemicals.

PART 261—IDENTIFICATION ANDLISTING OF HAZARDOUS WASTE

1. The authority citation for Part 261continues to read as follows:

Authority: 42 U.S.C. 6905, 6912(a), 6921,6922, 6924(y), and 6938.

2. Section 261.4 is amended byrevising paragraph (b)(8) to read asfollows:

§ 261.4 Exclusions.

* * * * *(b) * * *(8)(i) Except as provided in § 266.112

of this chapter for facilities that burn orprocess hazardous waste, CKD waste, solong as it is managed in accordance withPart 259 of this chapter.

(ii) CKD waste is not managed inaccordance with Part 259 of this chapterwhen a facility:

(A) Fails to comply with:(1) air requirements for landfills, as

specified § 259.22 of this chapter, by 90days after the effective date of the finalrule, unless granted approval by theEPA Regional Administrator (or theState, in authorized States) under§ 259.22(d) of this chapter to implementalternative measures for fugitive dustcontrol;

(2) the containment standards, asspecified under § 259.20 of this chapter,for CKD destined for sale or beneficialuse within two years after the effectivedate of the final rule, unless grantedapproval by the EPA RegionalAdministrator under § 259.20(c) of this

chapter to implement alternativemeasures for fugitive dust control;

(3) design requirements for CKDlandfills, as specified under § 259.30(c)of this chapter by two years after theeffective date of the final rule, unlessgranted approval by the EPA RegionalAdministrator under the provisions of§ 259.30(h) of this chapter for a unitdesign, or a finding is made of nopotential for migration under § 259.40(b)of this chapter;

(4) ground-water monitoring systemsrequirements, as specified under§ 259.41 of this chapter, by two yearsafter the effective date of the final rule,unless granted approval by the EPARegional Administrator under theprovisions of § 259.30(h) of this chapterfor a unit design, or a finding is madeof no potential for migration under§ 259.40(b) of this chapter;

(5) the time frames for appropriatecorrective action proposed today under§§ 259.41, 259.44, 259.45, 259.46, and259.47 of this chapter;

(6) any applicable demonstrationrequirements for new CKD landfills asspecified under §§ 259.11(a), 259.12(a),259.13(a), 259.14(a), 259.15(a) and259.16(a) of this chapter;

(7) any requirement identified in anotice received from the RegionalAdministrator because of repeatedviolations the requirements of Part 259of this chapter, other than thosespecified in paragraphs (b)(8)(ii)(A)(1)through (b)(8)(ii)(A)(6) of this section;or,

(B) Fails to comply with any sectionof Part 259 of this chapter, other thanthose specified in paragraphs(b)(8)(ii)(A) of this section, within 30days of receiving a written notice ofnon-compliance with any of thosesections from the RegionalAdministrator

(iii) Clinker manufactured with CKDwaste that has been listed in Subpart Dof this part and has been reintroducedto the cement manufacturing process.* * * * *

PART 266—STANDARDS FOR THEMANAGEMENT OF SPECIFICHAZARDOUS WASTES AND SPECIFICTYPES OF HAZARDOUS WASTEMANAGEMENT FACILITIES


Authority: 42 USC 1006, 2002(a), 3004,3014, 6905, 6906, 6912, 6922, 6924, 6925,and 6937.

2. Subpart I is added to Part 266 toread as follows:

Subpart I—Management Standards ForHazardous Cement Kiln Dust Waste

Sec.266.120 Applicability and requirements.266.121 Removal of the hazardous waste

designation.

§ 266.120 Applicability and requirements.(a) The purpose of this part is to

establish national criteria under theResource Conservation and RecoveryAct (RCRA or the Act), as amended, forcement kiln dust waste that is notcharacteristically hazardous wasteunder the provisions of 40 CFR 266.112and is not managed in accordance withthe provisions of Part 259 of thischapter.

(b) Persons who generate, transport orstore CKD that is regulated under thisSubpart are subject to the requirementsin paragraphs (b)(1) through (7) of thissection. These requirements operate inlieu of requirements in 40 CFR Parts262–265, and 40 CFR Part 268 exceptwhere portions of those Parts arespecifically cross-referenced.

(1) All applicable provisions of Part262 (Standards Applicable to Generatorsof Hazardous Waste) of this chapter;

(2) Sections 264.4 and 265.4 ofSubpart A (Imminent hazard action) ofthis chapter;

(3) Sections 264.11 and 265.11(Identification number), 264.12 and265.12 (Required notices), 264.14 and265.14 (Security), 264.15 and 265.15(General inspection requirements),264.16 and 265.16 (Personnel training),and 264.19 and 265.19 (Constructionquality assurance program) of Subpart B(General Facility Standards) of thischapter.

(4) Subparts C, D, and E of both Parts264 and 265 (Preparedness andPrevention, Contingency Plan andEmergency Procedures, and ManifestSystem, Recordkeeping, and Reporting)of this chapter;

(5) All provisions of 40 CFR Part 259of this chapter.

§ 266.121 Removal of the hazardous wastedesignation.

(a) If any CKD waste loses theexemption under § 261.4(b)(8) of thischapter and becomes subject to§ 266.120, the owner or operator of thefacility managing such waste may applyto the Regional Administrator forremoval of the hazardous designationfor such CKD waste. The applicationmust include:

(1) A statement that the CKD waste isnow being managed in accordance withPart 259;

(2) A statement explaining thecircumstances of the non-compliance;and,



(3) A demonstration that the non-compliance is not likely to recur.

(b) The Regional Administrator mayremove the hazardous waste designationby reinstating the exclusion, as listedunder § 261.4(b)(8) of this chapter, if theRegional Administrator finds that theowner or operator of the facility hassatisfactorily explained thecircumstances of the non-compliance,has demonstrated that the non-compliance is not likely to recur andthat removal of the hazardous wastedesignation will not pose a threat tohuman health or the environment. TheRegional Administrator may remove thehazardous waste designation byreinstating the exclusion (as listedunder § 261.4(b)(8) of this chapter) withadditional conditions if the RegionalAdministrator finds that such additionalconditions are necessary to ensureprotection of human health and theenvironment.

(c) The Regional Administratorshould take action on an application forremoval of a hazardous wastedesignation within 60 days after receiptof the application. If the RegionalAdministrator does not take action onthe application within that time period,then the application for removal of thehazardous waste designation (i.e.,reinstatement of the exclusion under§ 261.4(b)(8) of this chapter) is deemedgranted, retroactive to the date of theapplication. However, the Regional

Administrator may terminate a removal(i.e., reinstatement of the exclusionunder § 261.4(b)(8) of this chapter) bydefault under this subsection if theRegional Administrator finds that theremoval of the hazardous wastedesignation is not appropriate based onthe factors specified in paragraph (b) ofthis Section.

PART 270—EPA ADMINISTEREDPERMIT PROGRAMS: THEHAZARDOUS WASTE PERMITPROGRAM


Authority: 42 USC 6905, 6912, 6924, 6925,6927, 6939, and 6974.

2. Section 270.10 is amended byadding a sentence to the end ofparagraph (a) to read as follows:

Subpart B—Permit Application

§ 270.10 General applicationRequirements.

(a) Permit application. * * *Procedures for application, issuance andadministration of permits for cementkiln facilities that do not comply withthe provisions of Part 259 are foundexclusively in 40 CFR 270.69.* * * * *

Subpart F—Special Forms of Permits

2. Subpart F is amended to add a new§ 270.69 to read as follows:

§ 270.69 Permits for the Management ofCement Kiln Dust

(a) The EPA Regional Administratormay issue a permit for continuedoperation of cement manufacturingfacilities that do not comply with theprovisions of 40 CFR Part 259. Any suchpermit shall contain such terms andconditions as will assure protection ofhuman health and the environment.Such permits:

(1) Shall provide for the operation ofthe facility in accordance 40 CFR Part259, and

(2) May include such additionalrequirements as the EPA RegionalAdministrator deems necessary toprotect human health and theenvironment, including, but not limitedto requirements regarding monitoring,operation, financial responsibility,closure and remedial action.

(b) In issuing such permits, the EPARegional Administrator may modify orwaive permit application and permitissuance requirements in 40 CFR Parts124 and 270, except proceduresregarding public participation, providedthe modifications or waivers protecthuman health and the environment.

[FR Doc. 99–20546 Filed 8–19–99; 8:45 am]BILLING CODE 6560–50–P
