[Federal Register Volume 72, Number 137 (Wednesday, July 18, 2007)]
[Rules and Regulations]
[Page 39325]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-13544]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 260 and 278
[EPA-HQ-RCRA-2006-0097; FRL-8326-1]
RIN 2050-AG27
Criteria for the Safe and Environmentally Protective Use of
Granular Mine Tailings Known as ``Chat''
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
promulgating mandatory criteria for the environmentally protective use
of chat in transportation projects carried out, in whole or in part,
with Federal funds. Specifically, chat used in such transportation
projects will be safe and environmentally protective if it is used in
asphalt concrete, in slurry seals, microsurfacing, or in epoxy seals
for anti-skid on bridge decking. Chat used in such transportation
projects will also meet EPA's criteria if it is used in Portland cement
concrete, flowable fill, stabilized base, chip seals, or as road base
providing, on a case-by-case basis, either: Synthetic Precipitation
Leaching Procedure (SPLP, EPA SW-846 Method 1312) tests are conducted
on the proposed material and the leachate testing results show that
concentrations in the leachate do not exceed the Drinking Water
Standards for lead and cadmium and the fresh water chronic National
Recommended Water Quality Criterion for zinc of 120 ug/l; or EPA (or a
State environmental Agency, if it chooses to do so) has determined,
based on a site-specific risk assessment and after notice and
opportunity for public comment, that the releases from the chat mixture
in its proposed use will not cause an exceedance of the National
Primary Drinking Water Standards for lead and cadmium in potential
drinking water sources and the fresh water chronic National Recommended
Water Quality Criterion for zinc of 120 ug/l in surface water.
Furthermore, this rule also establishes a criterion that other uses of
chat will be safe and environmentally protective and are acceptable if
they are part of, and otherwise authorized by, a State or Federal
response action undertaken in accordance with Federal or State
environmental laws, with consideration of a site-specific risk
assessment. This rule does not require that chat be sized (dry or wet)
prior to its use, as long as this rule's criteria are complied with.
EPA is also establishing recommended criteria as guidance on the
environmentally protective use of chat for non-transportation cement
and concrete projects. Finally, the Agency is establishing
certification and recordkeeping requirements for all chat, except that
under the jurisdiction of the U.S. Department of Interior, Bureau of
Indian Affairs (BIA). The chat covered by this rule is from the lead
and zinc mining areas of Oklahoma, Kansas and Missouri, known as the
Tri-State Mining District.
DATES: This final rule is effective on September 17, 2007.
The incorporation by reference of certain publications listed in
this rule is approved by the Director of the Federal Register as of
September 17, 2007.
ADDRESSES: The public docket for this final rule, Docket ID No EPA-HQ-
RCRA-2006-0097, contains the information related to this rulemaking,
including the response to comment document. All documents in the docket
are listed in the http://www.regulations.gov index. Although listed in
the index, some information may not be publicly available, e.g.,
Confidential Business Information or other information the disclosure
of which is restricted by statute. Certain other material, such as
copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the EPA Docket, EPA/
DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC.
The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number of the
Public Reading Room is 202-566-1744, and the telephone number to make
an appointment to view the docket is 202-566-0276.
FOR FURTHER INFORMATION CONTACT: Stephen Hoffman, U.S. Environmental
Protection Agency, 1200 Pennsylvania Avenue, NW, Washington, DC, 20460-
0002, Mail Code 5306P; telephone number: 703-308-8413; fax number: 703-
308-8686; e-mail address: [email protected]. Additional
information on this rulemaking is also available on the internet at
http://www.epa.gov/epaoswer/other/mining/chat/.
The contents of this final rule are listed in the following outline
Contents of the Final Rule
I. General Information
A. Does This Rule Apply to Me?
B. What Are the Statutory Authorities for This Final Rule?
[[Page 39332]]
C. Definitions and Acronyms Used in the Rule
II. Summary of This Rule
III. Background Information
IV. Rationale for This Rule and Response to Comments
A. What Was the Process EPA Used to Develop This Action?
B. What Criteria Are EPA Establishing for the Use of Chat?
C. Relationship of This Rule to Other Federal Regulations and
Guidance
D. How Does This Rule Affect Chat Sales From Land Administered
by BIA or Directly From Tribal Lands?
E. How Does This Rule Affect CERCLA Liability, Records of
Decision and Response Actions?
F. How Does This Rule Affect the Use of Federal Funds
Administered by the U.S. Department of Transportation for
Transportation Construction Projects?
V. Impacts of the Final Rule
A. What are the Potential Environmental and Public Health
Impacts From the Use of Chat in Transportation Construction
Projects?
B. What are the Economic Impacts?
VI. State Authority
VII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act
I. General Information
A. Does This Rule Apply to Me?
These criteria affect the following entities: aggregate, asphalt,
cement, and concrete facilities, likely limited to the Tri-State Mining
District. However, other types of entities not identified could also be
affected--that is, the list is not intended to be exhaustive, but to
provide a guide for readers regarding those entities that potentially
could be affected by this action. To determine whether your facility,
company, business, organization, etc., is affected by this action, you
should examine the applicability criteria of this preamble. If you have
any questions regarding the applicability of this action to a
particular entity, consult the person listed in the preceding FOR
FURTHER INFORMATION CONTACT section.
B. What Are the Statutory Authorities for This Final Rule?
Through Title VI, Section 6018 of the Safe, Accountable, Flexible,
and Efficient Transportation Equity Act of 2005 (HR 3 or ``the Act''),
Congress amended Subtitle F of the Solid Waste Disposal Act (42 U.S.C.
6961 et seq.) by adding Sec. 6006. This provision requires the Agency
to establish safe and environmentally protective criteria (including an
evaluation of whether to establish a numerical standard for
concentrations of lead and other hazardous substances) for the use of
granular mine tailings from the Tar Creek, Oklahoma Mining District,
known as `chat,' in cement and concrete projects and in transportation
construction projects that are carried out, in whole or in part, using
Federal funds. Section 6006(a)(4) requires that any use of the granular
mine tailings in a transportation project that is carried out, in whole
or in part, using Federal funds, meet EPA's established criteria.
In establishing such criteria, EPA is required to consider ``the
current and previous uses of granular mine tailings as an aggregate for
asphalt, and any environmental and public health risks and benefits
derived from the removal, transportation and use in transportation
projects of granular mine tailings'' carried out, in whole or in part,
using Federal funds. EPA is also required to consult with the Secretary
of Transportation, and other Federal agencies in developing these
criteria. RCRA section 2002(a) grants the Agency broad rulemaking
authority, providing that the Administrator is authorized to prescribe
``such regulations as are necessary to carry out his functions under
this chapter.''
While this is a regulation promulgated under RCRA, the rule sets
the criteria that must be complied with at transportation construction
projects funded, in whole or in part, with Federal funds. The U.S.
Department of Transportation (DOT) has statutory responsibility over
the dispersement of federal funds for transportation projects.
Therefore, USDOT will make reference to this rule as one of the
regulatory requirements it requires all states to adhere to as a
condition of receiving Federal funds for transportation projects using
chat.
C. Definitions and Acronyms Used in the Rule
Asphalt--also known as asphalt cement, is liquid bitumen
(heavy petroleum) used as the binder in cold, warm, and hot mix
asphalt, chip seals, slurry seals, and microsurfacing. The term
`asphalt' is sometimes used generically in place of cold, warm, or hot
mix asphalt.
Asphalt concrete--a layer, or combination of layers,
composed of a compacted mixture of an asphalt binder and mineral
aggregate.
Pozzolanic--a siliceous material which when combined with
calcium hydroxide in the presence of moisture exhibits cementitious
properties.
State or Federal response action--State or Federal
response action undertaken pursuant to applicable Federal or State
environmental laws and with consideration of site-specific risk
assessments.
Raw chat--unmodified lead-zinc ore milling waste that
comes from the Tri-State Mining District.
Washed chat--lead-zinc ore milling waste that has been
wet-screened to remove the fine-grained fraction and which is sized so
as not to pass through a number 40 sieve (0.425 mm opening size) or
smaller.
Sized chat--lead-zinc ore milling waste that has been wet-
screened (washed) or dry sieved to remove the fine-grained fraction
smaller than a number 40 sieve (0.425 mm opening size).
Non-transportation cement and concrete projects uses are:
--Construction uses of cement and concrete for non-residential
structural uses limited to weight bearing purposes such as foundations,
slabs, and concrete wall panels. Other uses include commercial/
industrial parking and sidewalk areas. Uses do not include any
residential use of cement or concrete (e.g., residential parking areas,
residential construction, concrete counter tops).
Transportation construction uses are:
--Hot mix asphalt--a hot mixture of asphalt binder and size-graded
aggregate, which can be compacted into a uniform dense mass. Hot mix
asphalt also includes hot mix asphalt sub bases and hot mix asphalt
bases.
--Portland cement concrete (PCC)--pavements consisting of a PCC slab
that is usually supported by a granular (made of compacted aggregate)
or stabilized base and a sub base. In some cases, the PCC slab may be
overlaid with a layer of hot mix asphalt. PCC uses also include bridge
supports, bridge decking, abutments, highway sound barriers, jersey
walls, and non-residential side walks adjacent to highways.
--Flowable fill--a cementitious slurry consisting of a mixture of fine
[[Page 39333]]
aggregate or filler, water, and cementitious materials which is used
primarily as a backfill in lieu of compacted earth. This mixture is
capable of filling all voids in irregular excavations, is self
leveling, and hardens in a matter of a few hours without the need of
compaction in layers. Most applications for flowable fill involve
unconfined compressive strengths of 2.1 MPa (300 lb/in2) or less.
--Stabilized base--a class of paving materials that are mixtures of one
or more sources of aggregate and cementitious materials blended with a
sufficient amount of water that result in the mixture having a moist
nonplastic consistency that can be compacted to form a dense mass and
gain strength. This class of base and sub base materials excludes
stabilization of soils or aggregates using asphalt concrete or
emulsified asphalt.
--Granular bases--road base typically constructed by spreading
aggregates in thin layers of 150 mm (6 inches) to 200 mm (8 inches) and
compacting each layer by rolling over it with heavy compaction
equipment. The aggregate base layers serve a variety of purposes,
including reducing the stress applied to the sub grade layer and
providing drainage for the pavement structure. The granular sub base
forms the lowest (bottom) layer of the pavement structure and acts as
the principal foundation for the subsequent road profile.
--Embankment--a volume of earthen material that is placed and compacted
for the purpose of raising the grade of a roadway above the level of
the existing surrounding ground surface.
--Slurry seals--a material composed of emulsified asphalt, aggregate,
and mineral fillers, such as Portland cement or lime which is applied
as a thin coating on top of asphalt or PCC road surfaces.
--Micosurfacing--polymer-modified slurry seal.
--Cold mix asphalt--an asphalt/aggregate mixture composed of binders,
soaps, or other chemicals which allow its use when cold or warm.
--Epoxy seals--the mixture of aggregate in epoxy binders. Epoxy seals
are typically used as an anti-skid surface on bridge decking.
--Chip seals--a material composed of aggregate placed on top of a layer
of an asphalt or asphaltic liquid binder. The aggregate may be rolled
into the binder.
Abbreviations and Acronyms Used in This Document
ANSI American National Standards Institute
AASHTO American Association of State Highway and Transportation
Officials
ASR Alkali-Silica Reaction
ASTM American Society for Testing and Materials
ATSDR Agency for Toxic Substances and Disease Registry
BDAT Best Demonstrated Available Technology
BIA Bureau of Indian Affairs
CAA Clean Air Act (42 USCA 7401)
CERCLA Comprehensive Environmental Response Compensation and Liability
Act (42 USCA 9601)
CFR Code of Federal Regulations
CWA Clean Water Act (33 USCA 1251)
DOT Department of Transportation
EO Executive Order
EPA Environmental Protection Agency
FHWA Federal Highway Administration
FR Federal Register
ICR Information Collection Request
IEUBK Integrated Exposure Uptake Biokinetic (Model)
MCL Maximum Contaminant Level (Safe Drinking Water Act)
NIOSH National Institute for Occupational Safety and Health
NPL National Priorities List
ODEQ Oklahoma Department of Environmental Quality
OMB Office of Management and Budget
OSHA Occupational Safety and Health Administration
OU University of Oklahoma
OUs Operable Units
PCC Portland cement concrete
PEL Permissible Exposure Level
ppmv parts per million by volume
ppmw parts per million by weight
Pub. L. Public Law
RCRA Resource Conservation and Recovery Act (42 USCA 6901)
ROD Record of Decision
SMCL Secondary Maximum Contaminant Level (Safe Drinking Water Act)
SPLP Synthetic Precipitation Leaching Procedure (EPA SW 846 Method
1312)
SSL (Superfund) Soil Screening Level
TCLP Toxicity Characteristic Leaching Procedure (EPA SW 846 Method
1311)
TWA Time-Weighted Average
USACE U.S. Army Corp of Engineers
U.S.C. United States Code
II. Summary of This Rule
On April 4, 2006, EPA published a Federal Register notice (64 FR
16729) seeking comment on a proposed rule that would establish criteria
for the safe and environmentally protective use of chat in
transportation projects funded, in whole or in part, with Federal
funds, as well as proposed guidance on the use of chat in non-
transportation cement and concrete projects. Based on a request to
extend the comment period, the Agency again sought comment on this
proposal on May 19, 2006 (71 FR 29117). The purpose of the proposed
rule was to establish criteria that would identify environmentally
protective uses of chat in federally funded transportation projects.
The Agency received many comments in response to its April 4 and
May 19, 2006 notices. Numerous commenters generally supported the
proposed rule, while other commenters suggested changes to the
proposal. After considering all comments, we are finalizing the
proposed rule with several significant modifications. The final rule,
similar to the proposed rule, establishes criteria allowing the use of
chat in federally funded transportation projects when used in asphalt
concrete for roadway surfaces and in asphalt for road bases and sub
bases. Upon consideration of the comments, the Agency is expanding its
criteria for chat in federally funded transportation projects to
include chat used in slurry seals, microsurfacing, epoxy seals, and
cold and warm mix asphalt. However, a significant modification to the
proposal is that before chat can be used in Portland cement concrete
(PCC) federally funded transportation projects, a person must show, on
a case by case basis that: (1) Synthetic Precipitation Leaching
Procedure (SPLP, EPA SW-846 Method 1312) tests are conducted on the
proposed material and the leachate testing results show that
concentrations in the leachate do not exceed the National Primary
Drinking Water Standards for lead and cadmium and the fresh water
chronic National Recommended Water Quality Criterion for zinc of 120
ug/l; or (2) EPA (or a State environmental Agency, if it chooses to do
so) has determined, based on a site-specific risk assessment and after
notice and opportunity for public comment, that the releases from the
chat mixture in its proposed use will not cause an exceedance of the
National Primary Drinking Water Standards for lead and cadmium in
potential drinking water sources and the fresh water chronic National
Recommended Water Quality Criterion for zinc of 120 ug/l in surface
water.
The Agency is making these changes in response to comments received
on the proposed rule, including comments
[[Page 39334]]
from the Peer Review Panel, which argued that there were insufficient
data for the Agency to determine the range of risk from the use of chat
in PCC. In addition, based on comment, the Agency also concluded that
the use of chat in flowable fill, stabilized based, chip seals and as
road base may only be allowed if a case-by-case demonstration is made,
as described above. This rule's approach will generate the data needed
to determine if such uses are safe and environmentally protective. Such
an approach is also similar to that already used by a number of states
when they make beneficial use determinations.
The Agency wishes to emphasize that the use of chat in
transportation projects, funded in whole or in part using Federal
funds, does not affect a person's obligation to comply with existing
state or Federal materials specifications. Further discussion of this
matter is noted in the sections entitled, Physical and Chemical
Characteristics of Chat and Relationship of this Rule to other Federal
Regulations and Guidance.
The Agency has retained its proposal that chat authorized by a
State or Federal response action undertaken in accordance with Federal
or State environmental laws need not comply with the criteria in
sections 278.3 (a) or (b). Such response actions are undertaken with
consideration of site-specific risk assessments. For example,
unencapsulated uses of chat may be authorized in a State or Federal
remediation action. This rule also retains the certification
requirement, since the Agency believes that such notice is important
for states and the public to know how and where chat is used in
transportation.
EPA believes that this rule will encourage the environmentally
sound use of chat in transportation projects funded, in whole or in
part, with Federal funds.
III. Background Information
1. What Is Chat?
Chat is the waste material that was generated from the extraction
and beneficiation of lead/zinc minerals to produce lead/zinc
concentrate in the Tri-State Mining District of Southwest Missouri,
Southeast Kansas and Northeast Oklahoma. Chat is primarily composed of
chert, a very hard rock. The primary properties that make chat useful
in asphalt-based road materials, Portland cement concrete, and epoxies
are grain size distribution, durability, non-polishing, and low
moisture absorption.
In 1980, Congress enacted the Solid Waste Disposal Act Amendments
(Pub. L. 96-482) which added section 3001(b)(3)(A)(ii) (the Bevill
Amendment) to RCRA. This section required the Agency to study
extraction/beneficiation wastes and in 1989 the Agency promulgated a
rule (54 FR 36592) which exempts extraction/beneficiation wastes from
regulation under the RCRA Subtitle C hazardous waste regulations (see
(40 CFR 261.4(b)(7)). Therefore, chat is a ``Bevill exempt'' waste and
is not subject to regulation under RCRA Subtitle C. This exemption does
not, however, affect CERCLA jurisdiction over chat, since chat contains
hazardous substances, nor does it affect the jurisdiction of RCRA
section 7003, as long as the chat is a solid waste.
2. What Is the Areal Scope for This Action?
The Act directed EPA to develop criteria for chat from the Tar
Creek, Oklahoma Mining District. However, there is no definition of the
term ``Tar Creek Oklahoma Mining District.'' Available literature
references the ``Tar Creek Superfund site,'' which is in Oklahoma, but
the term ``mining district'' is only used in reference to the ``Tri-
State Mining District.'' For purposes of this final rule, the areal
scope includes chat originating from the Tri-State Mining District of
Ottawa County, Oklahoma, Cherokee County of southeast Kansas, and
Jasper, Newton, Lawrence and Barry Counties of southwest Missouri,
regardless of where it is used.
In 1979, the U.S. Bureau of Mines completed a study to identify all
mined areas and mine-related hazards which confirmed that lead-zinc
mining covers a portion of each of the States of Kansas, Missouri, and
Oklahoma. This area is the same area known as the Tri-State Mining
District.
Chat located in this historical mining district is a product of
similar mineralization processes that sets it aside from related lead-
zinc mineralization districts elsewhere in the United States. The Tri-
State mineralization is specifically associated with wall rock
alteration into dolomite and microcrystalline silica (chert). The term
chat is derived from the word ``chert,'' referring to the cherty
wallrock found in this mining district. The lead/zinc ore and its
related waste, chat, in this district also have a well defined lead to
zinc ratio.
For over one hundred years of activity ending in 1970, the Tri-
State Mining District has been the source of a major share of all the
lead and zinc mined in the United States. Surface piles of chat, as
well as underground mining areas, extend uninterrupted across the
Oklahoma-Kansas State line. In the proposal, the Agency did not include
Lawrence and Barry counties in southwest Missouri as part of the areal
extent of the rule, but requested comment on whether it would be
reasonable to include them (see 71 FR 16732). Commenters requested that
the Agency expand the scope of the rule to include these two counties
in southwest Missouri. Based on communication with state regulatory
officials in Kansas, Missouri, and Oklahoma and review of mineral
geology studies, EPA concludes that there is no real factual
distinction between chat derived from these three states, and believes
that it is reasonable to apply this rule to the areal extent of all
chat generated and currently located in the following counties: Ottawa
county, Oklahoma, Cherokee county, Kansas, and Newton, Jasper, Lawrence
and Barry counties in Missouri.
3. Are There Any Current Regulations of Asphalt, Portland Cement
Concrete or Chat Washing Facilities?
Based on the Agency's review of existing state and federal
regulations, the Agency did not propose to apply any additional
regulations on chat washing or hot mix asphalt and Portland cement
concrete plants, although the Agency solicited comment on whether it
would be prudent for this rule to apply additional controls, over those
that currently exist, to address environmental releases from these
types of facilities.\1\ Specifically, at proposal, the Agency assessed
existing regulations in Oklahoma, Kansas, and Missouri for hot mix
asphalt plants and Portland cement concrete plants to determine whether
those operations are appropriately regulated to address environmental
releases for such facilities. (See memorandum entitled: Evaluation of
State Regulations in the docket.) Those regulations set standards for
point and fugitive air emission sources (see Kansas: K.A.R. 28-19-500,
Missouri: 10 CSR 10-6.170, and Oklahoma: OAC 252:100-7/8/29) and also
set requirements for water discharges from point source discharges (see
Kansas: K.A.R. 28-16, Missouri: 10
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CSR 20-6.200, and Oklahoma: OAC 252:606-5-5). In addition, Oklahoma,
Missouri and Kansas all require that trucks transporting aggregate must
be covered to reduce fugitive emissions and reduce damage to other
vehicles from windblown debris. The Bureau of Indian Affairs (BIA) also
requires that trucks transporting chat from Tribal lands be covered to
prevent blowing dust from transport.
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\1\ It should be noted that the statute does not require the
Agency to set criteria for facilities that prepare chat prior to its
use, but restricts the activities for which the Agency is to
establish criteria for the use of chat in transportation projects
funded, wholly or in part, with Federal funds. Nevertheless, the
Agency evaluated the potential for environmental releases from these
types of facilities--chat washing, hot mix asphalt and Portland
cement concrete plants as part of the rulemaking.
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The Agency also assessed existing regulations in Oklahoma, Kansas,
and Missouri for chat washing facilities to determine whether chat
``washing'' operations are adequately managed.\2\ There are two
commercial chat washing facilities in the Tri-State area and both are
located within the Tar Creek Superfund site. While the States do not
have specific regulations applicable to chat washing facilities, these
facilities are subject to State general fugitive air emissions and
general storm water discharge regulations. These general State permits
require that fugitive dusts and runoff be controlled in a fashion so
that dusts and other pollutants do not leave the property line or the
boundary of the construction activity. In addition, because the two
chat washing facilities are located within the Tar Creek Superfund
site, the Agency may rely on CERCLA authority to establish any
additional conditions that are considered necessary to be safe and
environmentally protective.
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\2\ While EPA recognizes that some chat is washed or sized prior
to being used, today's final rule does not require that chat be
washed prior to its use. Therefore, imposing additional requirements
for chat washing facilities would seem inappropriate.
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The BIA is also establishing air and water standards for chat
washing facilities located on Tribal lands and lands administered by
BIA. BIA's requirements include that the chat washing facility manage
waste water discharges so that they do not exceed State standards, that
fugitive dusts be controlled, and that fines are handled and disposed
of so that they do not contaminate ground water. In addition, BIA
requires all purchasers of chat from Tribal lands, or lands
administered by BIA, to certify that the chat will be used in
accordance with authorized uses set forth in EPA fact sheets and other
guidance. (See report titled, Chat Sales Treatability Study Workplan
for the Sale of Indian-Owned Chat within the Tar Creek Superfund Site,
Ottawa County, Oklahoma, June 23, 2005.).
A number of commenters noted their concern that existing
regulations do not adequately control releases from these types of
facilities. As noted above, the Agency reviewed existing state and
Federal regulations of these facilities, and determined that they are
in fact subject to regulation of their releases and that the existing
regulations assure safe and environmentally protective conditions at
these facilities--that is, hot mix asphalt plants, PCC plants and chat
washing facilities. Therefore, the Agency is not promulgating
additional controls for these facilities.
4. Are There Existing Criteria for the Use of Chat?
As noted in a 2005 University of Oklahoma (OU) report, the Oklahoma
Department of Environmental Quality (ODEQ) has determined that the
following transportation uses of raw chat are inappropriate: Use in
residential driveways and as gravel or unencapsulated surface material
in parking lots, alleyways, or roadways (See A Laboratory Study to
Optimize the Use of Raw Chat in Hot Mix Asphalt for Pavement
Application: Final Report). ODEQ also identified the following non-
transportation uses of raw chat that are deemed inappropriate for
residential use:
--Fill material in yards, playgrounds, parks, and ball fields
--Playground sand or surface material in play areas
--Vegetable gardening in locations with contaminated chat
--Surface material for vehicular traffic (e.g., roadways, alleyways,
driveways, or parking lots)
--Sanding of icy roads
--Sandblasting with sand from tailings ponds or other chat sources
--Bedding material under a slab in a building that has underfloor air
conditioning or heating ducts
--Development of land for residential use (e.g., for houses or for
children's play areas, such as parks or playgrounds) where visible chat
is present or where the lead concentration in the soil is equal to or
greater than 500 mg/kg unless the direct human contact health threat is
eliminated by engineering controls (e.g., removing the contaminated
soil or capping the contaminated soil with at least 18 inches of clean
soil)
EPA Region 6 also issued a Tar Creek Mining Waste Fact Sheet on
June 28, 2002 that identified the following as acceptable uses of chat:
(1) Applications that bind (encapsulate) the chat into a durable
product (e.g., concrete and asphalt), (2) applications that use the
chat as a material for manufacturing a safe product where all waste
byproducts are properly disposed, and (3) applications that use the
chat as sub-grade or base material for highways (concrete and asphalt)
designed and constructed to sustain heavy vehicular traffic. This fact
sheet also incorporated the ODEQ list of unacceptable residential uses
of chat.
In addition, EPA Region 7 issued a Mine Waste Fact Sheet in 2003
that identified the uses of chat that are not likely to present a
threat to human health or the environment. Those uses are: (1)
Applications that bind material into a durable product; these would
include its use as an aggregate in batch plants preparing asphalt and
concrete, (2) applications below paving on asphalt or concrete roads
and parking lots, (3) applications that cover the material with clean
material, particularly in areas that are not likely to ever be used for
residential or public area development, and (4) applications that use
the material as a raw product for manufacturing a safe product. The
fact sheet also lists mine waste (chat) uses that may not be safe and
environmentally protective and are similar to those listed by ODEQ and
the Region 6 fact sheet. However, the Region 7 fact sheet also lists
use as an agricultural soil amendment to adjust soil alkalinity as a
use that may not be safe and environmentally protective.
This rule is more restrictive than the 2002/2003 Region 6 and 7
fact sheets. Therefore, the Agency is issuing new fact sheets on the
use of chat from the Tri State Mining District in transportation
construction projects funded, in whole or in part, with Federal funds
and in non-transportation non-residential uses of chat. The new fact
sheets are consistent with this rule. The fact sheets are available at
http://www.epa.gov/epaoswer/other/mining/chat/.
5. Physical and Chemical Characteristics of Chat
This section provides information on the physical characteristics,
such as hardness, soundness (durability), gradation, shape and surface
texture, and chemical characteristics, such as the leaching potential
of chat.
Physical Characteristics
In an OU study (A Laboratory Study to Optimize the Use of Raw Chat
in Hot Mix Asphalt for Pavement Application: Final Report (August
2005)), the specific gravity of the raw chat was found to be 2.67,
which is similar to some commonly used aggregates, such as limestone
and sandstone.
According to an ODEQ study (Summary of Washed and Unwashed Mining
Tailings (Chat) from Two Piles at the Tar Creek Superfund Site, Ottawa
County Oklahoma, Revised June 2003), chat consists of materials ranging
in diameter from 15.875 mm (\5/8\ inch) to
[[Page 39336]]
less than 0.075 mm (the size fraction that passes the No. 200 sieve).
Since raw chat is a crushed material from mining operations, raw
chat particles have fractured faces. Raw chat also has numerous inter-
granular voids in the loose aggregate form. The more angular the
aggregate the higher the amount of voids. The uncompacted void content
or the fine aggregate angularity of raw chat was found to be 46%. This
value exceeds the higher fine aggregate angularity required by most
State DOTs.
Raw chat is harder than some other aggregates, such as limestone.
The L.A. abrasion value (determined by the Test for Resistance to
Degradation of Aggregate by Abrasion and Impact in the Los Angeles
Abrasion Machine) of raw chat was found to be 18% which is lower than
that of limestone (23%) used in the OU study. This makes chat a good
material in road surfaces since it does not wear down as fast as other
aggregates.
Cubical shape is another desirable property of a good aggregate.
The coarse aggregate in raw chat (particles retained on a 4.75 mm
(4) sieve) has less than 5% flat or elongated particles.
Therefore, chat is viewed as a desirable aggregate material.
State DOTs specify minimum aggregate durability indices depending
on the type of road surface. In the OU study, the aggregate durability
index of raw chat was found to be 78%. The insoluble residue of raw
chat was found to be 98%. Oklahoma DOT has established a 40% insoluble
requirement for combined aggregates used in a surface layer of hot mix
asphalt, for the purpose of skid resistance. Surface treatments, like
microsurfacing, have higher insoluble residue requirements. Thus, the
use of insoluble aggregates like chat in hot mix asphalt surface mixes
and other surface treatments can improve the skid resistance and safety
of pavements.
State DOTs also specify aggregate requirements for hot mix asphalt
and PCC. Most State DOTs, including Kansas, Oklahoma and Missouri, have
adopted aggregate standards developed by the American Association of
State Highway and Transportation Officials (AASHTO). According to
AASHTO, the 0.075 mm (200) sieve size is the dividing line
between sand-size particles and the finer sized particles defined as
silts and clays. These finer particles often adhere to larger sand and
gravel particles and can adversely affect the quality of hot mix
asphalt and Portland cement concrete. The AASHTO standards for Fine
Aggregate for Bituminous Paving Mixtures (M 29-03) and Fine Aggregate
for PCC (M 6-03) specify limits for the amount of aggregate, on a
percent mass basis, in hot mix asphalt and Portland cement concrete
according to aggregate size and gradation. The aggregate sizes included
in the AASHTO standards range from .075 mm to 9.5 mm which is within
the range of particles found in raw chat. The AASHTO standards do not
preclude the use of fine chat particles in hot mix asphalt or PCC.
Depending on the designated grading, however, AASHTO limits particles
finer than sieve size 50 in the range of 7% to 60% for
aggregate in asphalt. Fine aggregate for use in concrete is limited by
the States of Oklahoma and Missouri to between 5% and 30% for particles
less than sieve size 50, while the corresponding values in
Kansas are 7% to 30%. Therefore, chat used in asphalt or PCC must meet
sizing specifications. This can be accomplished either by the raw chat
meeting these specifications as is, or mixing the raw chat with other
aggregates, by dry sizing, or by washing (wet sizing) the chat.
Current law requires that the chat used as an aggregate in
transportation projects meet existing State Department of
Transportation or Federal Highway Administration material
specifications, which assure that the road surface, composed of hot,
warm or cold mix asphalt, concrete or epoxy, is durable and will not
degrade prematurely. As discussed below, in light of these existing
requirements, EPA concluded that it was not necessary to establish any
additional material specifications for the use of chat as an aggregate
in federally funded transportation projects to ensure that when chat is
used, it will be safe and environmentally protective.
Chemical Characteristics
Dames and Moore, 1993 and 1995; Sampling and Metal Analysis of Chat
Piles in the Tar Creek Superfund sites for the Oklahoma Department of
Environmental Quality, 2002, and Datin and Cates; Summary of Washed and
Unwashed Mining Tailings (Chat) from Two Piles at the Tar Creek
Superfund Site, Ottawa County Oklahoma, Revised June 2003, provide data
on metals concentrations in washed and unwashed (or raw) chat. The
Dames and Moore study indicated that total lead concentrations in the
raw chat ranged from 100 mg/kg to 1,660 mg/kg, while the Datin and
Cates study noted that mean total lead concentrations from the raw chat
piles located throughout the Tri-State area ranged between 476 to 971
mg/kg. The AATA International, Inc. December 2005; Draft: Remedial
Investigation Report for Tar Creek OU4 RI/FS Program found that the
concentration of lead in the raw chat ranged from 210 mg/kg to 4,980
mg/kg, with an average of 1,461 mg/kg; cadmium ranged from 43.1 mg/kg
to 199.0 mg/kg, with an average of 94.0 mg/kg; and zinc ranged from
10,200 mg/kg to 40,300 mg/kg, with an average of 23,790 mg/kg.
These studies show that as chat sizes become smaller, their metals
content increases. The cited Datin and Cates report, Summary of Washed
and Unwashed Mining Tailings (Chat) from Two Piles at the Tar Creek
Superfund Site, Ottawa County Oklahoma, Revised June 2003, shows that
total metals testing of wet screened material (larger fractions)
resulting from chat washing have lead concentrations which range from
116 to 642 mg/kg, a range much lower than raw chat. Therefore, the data
show that chat washing generates chat aggregate (greater than sieve
size 40) with considerably lower metals concentrations than
raw chat.\3\
---------------------------------------------------------------------------
\3\ The Datin and Cates report also provides TCLP testing data
that indicates the dry sieve sizes greater than 40 would
not exceed 5 mg/l, as well as data on wet screened material (larger
fractions) that also shows that the leaching potential of this
material is below 5 mg/l (1.028 to 3.938 mg/l). 5 mg/l is the level
of lead that defines whether a waste is hazardous under RCRA
subtitle C. Thus, this is another indication that the larger sizes
of chat have lower lead concentrations than do smaller sized chat
particles. (Note: As indicated earlier, chat is considered a Bevill
mining waste and is thus, exempt from regulation under RCRA Subtitle
C. However, we are using the TCLP leachate value for lead simply as
a comparative measure to evaluate the leaching characteristics of
chat.)
---------------------------------------------------------------------------
6. What Are the Environmental and Health Effects Associated With
Pollutants Released From Raw Chat?
The Tri-State Mining District includes four National Priorities
List (NPL) Superfund sites that became contaminated from the mining,
milling, smelting, and transportation of ore and the management
practices for chat. These sites are located in Tar Creek in Ottawa
County, Oklahoma, Cherokee County in southeast Kansas, and in Jasper
and Newton Counties in southwest Missouri. Superfund cleanup activities
related to the millions of tons of mining waste that were deposited on
the surface of the ground at these sites have been designated as
Operable Units (OUs). OUs are groupings of individual waste units at
NPL sites based primarily on geographic areas and common waste sources.
Certain uses of raw chat have caused threats to human health and
the environment as a result of the concentrations of lead, cadmium and
zinc present in the chat.\4\ Evaluation of
[[Page 39337]]
raw chat also indicates that this waste in most unencapsulated uses has
the potential to leach lead into the environment at levels which may
cause threats to humans (i.e. elevated blood lead concentrations in
area children). Such threats have been fully documented in Records of
Decision (RODs) for the OUs at these NPL sites (See Tri-State Mining
District RODs in the docket to this action). Copies of Site Profiles
and RODs can be searched at: http://www.epa.gov/superfund/sites/rods/index.htm.
---------------------------------------------------------------------------
\4\ Information regarding the specific threats to human health
from lead, cadmium and zinc can be found in the Agency for Toxic
Substances and Disease Registry (ATSDR) Fact Sheet for Lead,
September 2005, the ASTDR Fact Sheet for Cadmium, June 1999 and the
ATSDR Fact Sheet for Zinc, September 1995, all of which are
available in the Docket to today's final rule.
---------------------------------------------------------------------------
IV. Rationale for This Rule and Response to Comments
A. What Was the Process EPA Used to Develop This Action?
In developing the proposed rule, the Agency initially reviewed
information concerning the environmental effects of the improper
placement and disposal of chat found in the RODs cited above for the
four NPL sites located in the Tri-State Mining District (Tar Creek,
Jasper County, Cherokee County, Newton County). The Agency then
reviewed reports which identified current or past uses of chat,
primarily studies prepared to support Oklahoma Governor Keating's
Taskforce (Governor Frank Keating's Tar Creek Superfund Task Force,
Chat Usage Subcommittee Final Report, September 2000) and research on
chat uses conducted by OU (A Laboratory Study to Optimize the Use of
Raw Chat in Hot Mix Asphalt for Pavement Application: Final Report
August 2005), as well as interviewed the principal authors of the OU
studies to further evaluate their findings. Additionally, the Agency
interviewed representatives from the Departments of Transportation in
Oklahoma, Kansas, and Missouri and met with the U.S. Department of
Transportation, Federal Highway Administration to discuss the use of
aggregate substitutes in road surfaces and relied on the joint EPA/FHWA
document of the use of wastes in highway construction [User Guidelines
for Waste and Byproduct Material in Pavement Construction, FHWA, 1997
(http://www.rmrc.unh.edu/Partners/UserGuide/begin.htm)]. Furthermore,
EPA met with the BIA to discuss BIA requirements for the sale of chat
on Tribal lands. The Agency also conducted a series of interviews with
the environmental regulatory agencies in the three involved States to
further identify acceptable versus unacceptable uses of chat. Moreover,
the Agency conducted interviews with companies which either used chat
at that time or had used chat previously. As part of this effort, EPA
representatives visited the Tri-State area to observe the condition of
chat piles and confirm the location of chat washing and asphalt
companies in the area. Finally, the Agency has communicated with the
tribal members in the Tri-State area to inform them about this action
and seek information about current uses.
Based on our review of the reports and interviews noted above, the
Agency published a Proposed Rule on April 4, 2006, in which we
specifically solicited comment on a number of issues (see 64 FR 16729).
The Agency received approximately 20 comments on the proposal. The
Agency's response to the comments received can be found in the docket
for this rule (see Response to Comments Document). In addition, the
Agency conducted an external Peer Review of the risk screen conducted
for the proposal. The Peer Review Panel submitted comments to the
Agency and based on those comments, the Agency conducted an additional
risk screen of chat dusts from milling of road surfaces containing chat
to determine if such an activity presented a risk to human health and
the environment. Both the original risk screen and subsequent risk
evaluations are noted in the risk section of the preamble to this final
rule, and are also in the Docket to this final rule. The Agency also
met with representatives from the Department of Transportation to seek
their input on a number of issues raised by commenters. Finally, the
Agency consulted with the Tribal interests to assure that their
comments were fully understood by the Agency. Based on the additional
work noted above, as well as responding to comments, the Agency is
today finalizing the chat rule.
B. What Criteria Are EPA Establishing for the Use of Chat?
1. Transportation Construction Uses
Transportation construction uses of chat addressed in this final
rule are those construction activities that occur as part of
transportation construction projects that are funded, wholly or in
part, with Federal funds. The Agency has evaluated all the
transportation construction uses and has concluded that chat used in
hot, warm, or cold mix asphalt, slurry seals, microsurfacing and in
epoxy seals, or other uses of chat that are evaluated on a case-by-case
basis will be safe and environmentally protective.
a. What Is the Final Action?
This final rule establishes criteria that chat used in
transportation construction projects that are funded, wholly or in
part, with Federal funds, must meet as a condition of receiving Federal
transportation funding. Specifically, those criteria define the
following uses to meet the statutory standards: chat that is used in
asphalt concrete, slurry seals, microsurfacing, or epoxy seals. The use
of chat also meets EPA's criteria if it is used in PCC, stabilized road
base, granular road base, flowable fill, and in chip seals, provided
that on a case-by-case basis: (1) Synthetic Precipitation Leaching
Procedure (SPLP, EPA SW-846 Method 1312) tests are conducted on the
proposed material and the leachate testing results show that
concentrations in the leachate do not exceed the National Primary
Drinking Water Standards for lead and cadmium and the fresh water
chronic National Recommended Water Quality Criterion for zinc of 120
ug/l; or (2) EPA (or a State environmental Agency, if it chooses to do
so) has determined, based on a site-specific risk assessment and after
notice and opportunity for public comment, that the releases from the
chat mixture in its proposed use will not cause an exceedance of the
National Primary Drinking Water Standards for lead and cadmium in
potential drinking water sources and the fresh water chronic National
Recommended Water Quality Criterion for zinc of 120 ug/l in surface
water.
EPA has also established a criterion that other chat uses will be
safe and environmentally protective if they are part of, and otherwise
authorized by a State or Federal response action undertaken in
accordance with Federal or State environmental laws. Such response
actions are undertaken with consideration of site specific risk
assessments.
In addition, for all chat used in transportation construction
projects that are funded, in whole or in part, using Federal funds that
is not subject to the BIA Chat Use Certification requirements described
in Section IV.B1, the Agency is establishing a certification
requirement similar to that required by BIA. Specifically, any acquirer
of the chat must submit a signed, written certification that the chat
will be used in accordance with EPA's criteria. The certification will
also include the location of origin of the chat and the amount of chat
acquired.
The certification must be provided to the environmental regulatory
agency in the State where the chat is used, except for chat acquired on
lands administered
[[Page 39338]]
by the BIA which is subject to the BIA certification requirements. The
Agency is also requiring that if the acquirer sells or otherwise
transfers the chat, the new owner of the chat must also submit a
signed, written certification as described in this section. Most
commenters did not support the certification requirement, because they
believe that it would increase the cost of using chat. As noted
earlier, BIA has established a chat sales program affecting chat sales
from tribal lands. That program includes a certification requirement
similar to that found in this rule. The Agency believes that
certification is necessary to assure that chat users comply with
today's criteria, as well as serving as a means to inform State
environmental agencies about the use of chat in their state. The Agency
has reviewed the burden on industry to fill out and maintain the
certification records and does not find that such a requirement is
burdensome. Moreover, the Agency believes that the certification
requirement will provide important information to state environmental
agencies to ensure that the chat is used as required under this rule.
This rule also requires that chat users maintain records. The
Agency is requiring that the acquirer, or any other person that
receives a copy of the certification, maintain a copy of the
certification in its files for three years following transmittal to the
State environmental regulatory agency. If the use is based on a case-
by-case basis, the acquirer must maintain copies of any SPLP leachate
testing results or any site-specific risk assessment for three years.
b. What is the rationale for the Rule?
The Agency is basing this action on our review of various studies
and data that show that certain uses of chat are safe and
environmentally protective.
i. Hot Mix Asphalt
There are a number of factors which lead us to conclude that chat
used in hot mix asphalt is safe and environmentally protective:
Several studies have been conducted on the use of chat in hot mix
asphalt. The most comprehensive study was conducted by the OU School of
Civil Engineering and Environmental Science. OU published their
findings in a report titled, A Laboratory Study to Optimize the Use of
Raw Chat in Hot Mix Asphalt for Pavement Application: Final Report
(August 2005). OU tested the durability and leaching potential of a
variety of mixtures of hot mix asphalt with raw chat for road surfaces
and for road bases. In addition, OU milled (sawed) samples to simulate
weathering. The Agency relied on these findings as one of the principal
sources of data supporting the use of chat in hot mix asphalt road
surfaces and asphalt road bases. The OU study also confirms the
findings of an earlier study conducted by the U.S. Army Corp of
Engineers (Tar Creek Superfund Site, Ottawa County, Oklahoma, Final
Summary Report: Chat--Asphalt Paved Road Study USACE--Tulsa District,
February 2000). Specifically:
Comparison of the Synthetic Precipitation Leaching
Procedure (SPLP) results of milled (weathered) chat asphalt samples in
the OU study with the National Primary and Secondary Drinking Water
Standards (www.epa.gov/safewater/mcl.html), without dilution and
attenuation, show that milled surface and road base mixtures did not
exceed the primary drinking water standard for lead \5\ (0.015 mg/l) or
cadmium (0.005 mg/l). The OU results also show that milled asphalt road
bases and surfaces did not exceed the secondary drinking water standard
for zinc (5 mg/l).\6\
---------------------------------------------------------------------------
\5\ The National Primary Drinking Water Regulations set a
Maximum Contaminant Level Goal of zero and a Treatment Technique
action level of 0.015mg/l for lead.
\6\ Several hot mix asphalt samples were also tested in the OU
study using the Toxicity Characteristic Leaching Procedure (TCLP).
For surface samples, TCLP average concentrations for lead ranged
from <0.005 mg/l to a high of 0.46 mg/l. TCLP average concentrations
for cadmium ranged from <0.010 mg/l to 0.223 mg/l and zinc
concentration averages ranged from 11.3 mg/l to 28.53 mg/l. Road
base samples usually have higher metals concentrations than do
surface samples. For road base samples, average TCLP lead
concentrations ranged from 0.069 mg/l to 2.008 mg/l, while average
TCLP cadmium concentrations ranged from 0.011 mg/l to 0.087 mg/l and
average TCLP zinc concentrations ranged from 19.9 mg/l to 41.33 mg/
l.
---------------------------------------------------------------------------
The TCLP test was designed as a screening test to simulate
leaching of materials in a municipal solid waste landfill. The SPLP
test is also a screening test to simulate leaching of materials when
exposed to acid rain. It is highly unlikely that road surfaces would be
exposed to leaching conditions found in municipal solid waste
landfills. Therefore, the Agency believes that of these two tests, the
SPLP tests are likely to better mimic the leaching potential of such
mixtures when they are to be used in road construction.
The OU study tested unweathered and milled samples. The
Agency believes milled samples represent worst case scenarios because
milling exposes more surface area to leaching.
In a dissertation submitted to the University of New
Hampshire titled, Contributions to Predicting Contaminant Leaching from
Secondary Material Used in Roads, Defne S. Apul, September 2004, the
author noted that if pavement is built on highly adsorbing soils, the
concentrations of leached contaminants reaching groundwater are more
than several orders of magnitude lower than the MCLs.
The ODEQ report entitled, Summary of Washed and Unwashed Mining
Tailings (Chat) from Two Piles at the Tar Creek Superfund Site, Ottawa
County Oklahoma, Revised June 2003, also evaluated leachate from
asphalt containing chat removed from the Will Rogers Turnpike located
near Quapaw, Oklahoma. This evaluation was conducted to determine if
asphalt concrete containing chat that is removed at the end of its
useful life poses contamination threats from metals leaching into the
environment. TCLP results for lead ranged from less than 0.050 mg/l to
0.221 mg/l. There are no SPLP test data in this report. However, based
on best professional judgment and review of TCLP versus SPLP results,
EPA believes that if SPLP tests were conducted, there would be a
reduction in lead concentrations of approximately one order of
magnitude as compared to the results of TCLP tests. Therefore, we
believe that SPLP results would not exceed the MCL for lead. Based on
these results, EPA does not believe the disposal of chat asphalt should
present risks to the environment. The Agency sought comment on whether
data was available which would further clarify whether the leachate
potential from end of life use of chat in asphalt presented any
threats. The Agency did not receive any comments or information that
disproves the Agency's contention that it is unlikely that end of life
chat asphalt will adversely affect the environment.
Finally, the Peer Review Panel that reviewed and commented on the
risk screen for the proposed rule concluded that the use of chat in hot
mix asphalt road surfaces and in asphalt road bases are safe and
environmentally protective. The Agency, therefore, concludes that the
use of chat in hot mix asphalt for pavement (which accounts for about
95% of the current chat usage), asphalt base, and asphalt sub base are
safe and environmentally protective. EPA does not believe that it is
necessary to establish specifications of what constitutes ``hot mix
asphalt'' because transportation construction uses are required to
comply with Federal and State Department of Transportation material
specifications. These specifications delineate requirements which
ensure that when chat is used in hot mix asphalt, the resulting product
will be structurally stable. It is
[[Page 39339]]
recommended that chat users first determine if the proposed use meets
State or Federal DOT materials specifications, since adherence to them
is separately required under current law.
ii. Slurry Seal, Microsurfacing, Warm Mix Asphalt, Cold Mix Asphalt,
and Epoxy Seal
While the proposal limited the use of chat as a direct ingredient
in hot mix asphalt (including use as road pavement, asphalt base and
asphalt sub base), many commenters requested that the Agency expand the
scope of the criterion to include other road surface uses associated
with asphalt that they believed retard the leaching of metals in chat
in the same manner as does hot mix asphalt, including slurry seals,
microsurfacing, cold mix asphalt, epoxy seals and chip seals.
Commenters did not provide data to support their assertions. The Agency
reviewed published information regarding the binding and durability
characteristics of these uses and found that, except for chip seals,
they would retard the leaching of metals in the same manner as hot mix
asphalt. To further confirm this information, we met with Department of
Transportation officials to determine which of these applications, if
any, do in fact encapsulate chat similarly to hot mix asphalt. Based on
those discussions and our review of published information, the Agency's
criteria includes the use of chat in slurry seals, microsurfacing, warm
mix asphalt, cold mix asphalt, and epoxy seals as safe and
environmentally protective in transportation construction projects that
are carried out in whole, or in part, using Federal funds, but does not
include the use of chat in chip seals. Specifically:
Slurry seals and microsurfacing involve the application of
a mixture of asphalt, chemical binders, petroleum liquids and aggregate
on the top surface of roads. This ``resurfacing'' meets a number of
needs, including repairing fine fractures in the road surface,
extending the life of the road, and improving skid resistance. EPA
reviewed literature on these uses and found that these uses have the
same engineering characteristics as hot mix asphalt. EPA also met with
the FHWA, U.S. DOT to determine if microsurfacing and slurry seals
retard the leaching of metals in the same manner as hot mix asphalt.
FHWA indicated that slurry seals and microsurfacing would bind metals
in the same manner as hot mix asphalt and would result in similar
leaching results. Based on this conclusion and our review of the
literature, the Agency today views the use of chat in slurry seals and
microsurfacing as safe and environmentally protective.
As part of EPA's discussions with FHWA, we also discussed
the ability of warm mix asphalt and cold mix asphalt to encapsulate and
bind chat. Warm mix asphalt is a combination of asphalt, asphalt
emulsions, paraffin or esterfied wax, and mineral additives that allow
the materials to be worked at temperatures much lower than hot mix
asphalt. Cold mix asphalt is a combination of asphalt, petroleum
liquids, soaps, and other chemicals which allow the materials to be
worked with when cold. FHWA confirmed that warm and cold mix asphalt
would encapsulate chat in the same manner as hot mix asphalt, and thus,
would likely result in similar leaching results. Based on Agency
conversations with FHWA and our review of the literature, the Agency
also views the use of chat in warm and cold mix asphalt as safe and
environmentally protective.
EPA also discussed the use of epoxy binders on bridge
decks with FHWA. Commenters and one of the chat washing companies noted
that some chat is sold to companies which mix chat with epoxy binders
for use as an anti-skid coating for highway bridges. EPA evaluated the
engineering durability of these epoxies and found that they are equal
to or are more durable than asphalt. FHWA also confirmed that the use
of epoxies would encapsulate chat equally to the binding found with
asphalt, and thus, would result in similar leach results. Based on this
conclusion, the Agency today views the use of chat in epoxy binders for
anti-skid purposes as safe and environmentally protective.
In conclusion, the use of chat in hot mix asphalt, slurry seals,
microsurfacing, warm mix asphalt, cold mix asphalt, or epoxy seals in
transportation construction projects funded, in whole or in part, with
Federal funds is safe and environmentally protective. Such uses do not
require approval from EPA prior to their use, as long as certification
and recordkeeping requirements are met.
iii. Concrete, Flowable Fill, Granular Road Base, Stabilized Road Base
and Chip Seals and Conditions for Use
This rule regarding the use of chat in concrete pavement has
changed from that presented in the April 2006 proposal and this rule
sets additional requirements on chat used in PCC. In particular, the
proposed rule allowed chat used as an aggregate in PCC without any
testing or other requirements. The Agency proposed the use of chat in
PCC based on the following data and information:
An undated OU Surbec-Art Environmental study \7\ and a
2000 OU study \8\ conducted the only known assessments of total metals
content and TCLP testing of concrete matrices mixed with raw chat. The
2000 OU results are also presented in the 2005 OU study. The results
from those two studies are presented in the following Table:
---------------------------------------------------------------------------
\7\ Preliminary Report on the Findings of Environmental and
Engineering Tests Performed on Mine Residual Materials from Ottawa
County, Oklahoma.
\8\ Development of Holistic Remediation Alternatives for the
Catholic 40 and Beaver Creek.
----------------------------------------------------------------------------------------------------------------
S1 S2 C40
-----------------------------------------------------------------
Total (mg/ TCLP (mg/ Total (mg/ TCLP (mg/ Total (mg/ TCLP (mg/
kg) l) kg) l) kg) l)
----------------------------------------------------------------------------------------------------------------
Lead.......................................... 178 0.92 379 0.17 150 1
Cadmium....................................... \R\ 30 0.09 \R\ 35 0.12 35 0.1
Zinc.......................................... 4200 0.23 4400 0.16 4100 .........
----------------------------------------------------------------------------------------------------------------
\R\ rounded to nearest whole number.
While not a direct measure of the leaching potential of
chat contained in PCC, waste stabilization technologies and their
effectiveness are well defined in the Agency's Final Best Demonstrated
Available Technology (BDAT) Background Document for Universal
Standards, Volume A, July 1994 and Proposed Best Demonstrated Available
Technology (BDAT) Background Document for Toxicity Characteristic Metal
Wastes D004-D011,
[[Page 39340]]
July 1995. One of those technologies is stabilization or encapsulation
of the waste in a cement matrix, to reduce the mobility of the metals
in the waste. That is, the metals are chemically bound into a solid
matrix that resists leaching when water or a mild acid comes into
contact with the waste. The Agency evaluated contaminant levels in
unstabilized versus stabilized wastes to determine the reduction in
mobility of metals, including lead and cadmium, when those wastes were
stabilized in a cement matrix. These results indicate that
stabilization with cement generally reduced lead and cadmium mobility
by two to three orders of magnitude (see Table A4 of the July 1994
document cited above).
However, the Peer Reviewers and commenters who reviewed and
commented on the risk screen analyses to the proposed rule raised
concerns with the lack of data presented on the stabilization of chat
in concrete. Specifically, the Peer Reviewers indicated that there were
only three samples analyzed and that given the limited data, it was not
possible for them to determine if risks existed from the use of chat in
concrete. While the Peer Reviewers noted that it was likely that the
concrete bound the metals in a similar fashion as asphalt, they also
did not believe there was enough data or information to reach a
definitive conclusion.
Some commenters also argued with the lack of leaching data for chat
in PCC and questioned whether the Agency has sufficient information to
finalize the proposal. Other commenters also noted that there were
significant differences between stabilizing high metal bearing wastes
with cement and the mixing of chat into PCC pavement. Commenters
indicated that from a risk standpoint, concrete road surfaces after
aging contain fine surface fractures that would allow rain water to
percolate through the surface into groundwater. The Agency acknowledges
these differences.
Commenters also noted that it was unlikely that chat would be used
in concrete pavement since it can be a poor performing aggregate when
used in PCC due to potential alkali-silica reaction (ASR) and freeze/
thaw durability issues. This is the reason that chat is not an approved
PCC aggregate by Oklahoma DOT. At proposal, the Agency also evaluated
highway design specifications; i.e., layering of compacted material and
the movement of water through concrete (hydraulic conductivity,\9\) and
initially thought that such designs in general retard the movement of
rainwater through concrete and into groundwater. Commenters questioned
this conclusion. As a result, the Agency met with the FHWA to determine
how extensively water flowed across and through concrete pavements.
FHWA indicated that there is considerable water flow through concrete
pavement either through flow out of the joints or cracks, or through
flow from the shoulders downward into the base. Based on Agency
discussions with FHWA, the Agency no longer believes that such designs
in general retard the movement of rainwater through concrete.
---------------------------------------------------------------------------
\9\ Acording to the Portland Cement Association, the hydraulic
conductivity of a typical Portland cement concrete is 1 x
10-1cm/sec.
---------------------------------------------------------------------------
Commenters also requested that the rule allow the use of chat in
flowable fill. However, commenters did not provide information to
support this request. While flowable fill involves the use of a
pozzolanic material (cement), the ability of flowable fill to bind chat
is unclear because flowable fill uses cement in amounts as little as 3
to 5 percent by weight. Therefore, the Agency does not have sufficient
information to allow this use without additional information or setting
additional conditions.
In addition, commenters requested that the rule allow the use of
chat as granular road base. Such bases are typically constructed by
spreading aggregates in thin layers and compacting each layer to reduce
the stress applied to the sub grade layer and providing drainage for
the pavement structure. The Agency acknowledges that some chat can meet
state or Federal materials specifications for this use. These
commenters did not, however, provide any information to support this
request. As noted above, some washed chat has significantly lower lead
concentrations than raw chat. However, as FHWA notes, highway designs
retard some, but not all of the water flowing across and into ground
water. Such water movement could leach metals from the chat road base
into ground water. Because the Agency did not receive additional
information on the leaching characteristics of this use, the Agency is
unable to allow it without additional information or setting additional
conditions.
Still other commenters requested that the rule allow the use of
chat in stabilized base. Stabilized base uses chat mixed with cement or
other pozzolanic materials to increase their bearing weights. This
additional material should reduce the mobility of the metals. However,
the stabilized road base may use cement or other materials in amounts
corresponding to 4 to 6 percent by weight which is less than that used
in PCC. The commenters did not provide information to support this
request. While some binding of metals is likely to occur, the Agency
does not have sufficient information to allow this use without
additional information or setting additional conditions.
Finally, at proposal, the Agency did not include an evaluation of
the use of chat in chip seals. Commenters requested that the rule allow
the use of chat in chips seals. These commenters did not, however,
provide information to support this request. Chip seals involve
application of an asphalt liquid on top of an existing road surface.
After the application of the asphalt liquid, an aggregate (such as
chat) is placed on the asphalt liquid and may then be rolled into the
liquid. It is possible that several applications can be applied. In
some circumstances, the aggregate layer is coated with asphalt liquids.
EPA met with the FHWA to determine if chip seals were generally viewed
as being able to retard the leaching of metals in the same manner as
hot mix asphalt. FHWA indicated that under most circumstances, asphalt
used in chip seals did not always fully coat chat particles, and chat
could be released into the environment. Given the concerns raised by
FHWA and the lack of data on this use, the Agency concludes that it
does not have sufficient information to allow the use of chat in chip
seals without additional information or setting additional conditions.
A number of commenters also noted that some washed chat does not
test hazardous under the TCLP and that restricting all uses of raw
chat, or encapsulated uses where leach data are not available, was
overly restrictive.\10\ The Agency has reviewed the TCLP/SPLP test data
of raw chat and recognizes that some washed chat has significantly
lower lead and zinc concentrations than raw chat. Nevertheless, the
Agency remains concerned that the use of raw chat or chat mixed with
other materials could pose risks to human health and the environment,
based on the physical and chemical characteristics of the material, as
well as the history of its use.
---------------------------------------------------------------------------
\10\ While the Agency is not requiring that chat be washed or
dry sized prior to being used, the rules also do not prevent a
person from washing or dry sizing chat before it is used either
directly or in combination with another material.
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[[Page 39341]]
After careful evaluation of the comments received and the report
from the Peer Reviewers, the Agency believes that the limited amount of
leaching data on chat used in PCC, flowable fill, granular road base,
stabilized road base, and chip seals do not provide enough support to
determine that these uses of chat will be safe and environmentally
protective.
In the proposal, the Agency requested comment on whether there was
a need for leachate testing of chat used in hot mix asphalt or in PCC
(see 54 FR 16738). Most commenters noted that the use of chat in hot
mix asphalt was protective and that a requirement of additional SPLP
testing was not warranted, however, they did not provide information to
support this position. Nevertheless, as already discussed, the Agency
believes there are sufficient data, particularly that provided in the
2005 OU study, to support its finding that chat used in hot mix
asphalt, as well as warm mix asphalt, cold mix asphalt, slurry seals,
microsurfacing, and in epoxy seals will be safe and environmentally
protective without the need for further leachate testing.
Other commenters, while they did not call for specific leachate
testing of chat used in PCC, did raise concerns as to whether there
were sufficient data to reach the conclusion that chat used in PCC or
other uses was protective. The Agency agrees that insufficient data
exist to conclude that the use of chat in PCC would be safe and
protective. Therefore, the Agency has concluded that additional
information, either through the use of SPLP testing or through a site-
specific risk assessment, is necessary to be able to conclude that the
use of chat in PCC, as well as flowable fill, granular road base,
stabilized road base, and chip seals would meet the statutory
standards. Specifically, EPA has established a criterion defining the
use of chat in PCC, flowable fill, granular road base, stabilized road
base, and chip seals as safe and environmentally protective if, on a
case-by case basis, either: (1) Synthetic Precipitation Leaching
Procedure (SPLP, EPA SW-846 Method 1312) tests are conducted on the
proposed material and the leachate testing results show that
concentrations in the leachate do not exceed the National Primary
Drinking Water Standards for lead and cadmium and the fresh water
chronic National Recommended Water Quality Criterion for zinc of 120
[mu]g/l\11\; or (2) EPA (or a State environmental Agency, if it chooses
to do so) has determined, based on a site-specific risk assessment and
after notice and opportunity for public comment, that the releases from
the chat mixture in its proposed use will not cause an exceedance of
the National Primary Drinking Water Standards for lead and cadmium in
potential drinking water sources and the fresh water chronic National
Recommended Water Quality Criterion for zinc of 120 [mu]g/l in surface
water.
---------------------------------------------------------------------------
\11\ It should be noted that this case-by-case showing does not
require public notice and comment.
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If a chat user chooses to conduct SPLP leachate testing and the
results indicate that they do not exceed the standards noted above, the
user does not need to submit the data to EPA (or a state, if it chooses
to do so) for review and approval. However, the regulation requires
that the user submit a certification statement to the environmental
regulatory agency in the State where the chat is acquired and maintain
copies of the SPLP testing results for a period of three years.
If a chat user chooses to prepare a site specific risk assessment,
the assessment must be submitted to EPA, or the State environmental
agency, at the State's option, prior to use. EPA or the State
environmental agency will review the site-specific risk assessment and
determine, after notice and comment, if the use is safe and
environmentally protective (see Section iii c below). After EPA or the
State makes its determination, the user will still be required to meet
the certification and recordkeeping requirements described in Section
IV. B. 1. of this final rule.
iv. Sizing of Chat Prior to Use
Finally, this final rule is not requiring that chat be sized before
it is used because chat used in transportation construction projects
must meet material specification standards established by either the
State or Federal DOT. Those specifications set their own size standards
which can be met in a variety of ways, such as by sizing chat or by
blending chat with other sized aggregate. Since existing specifications
address the sizing issue, this rule need not do so. However, some
commenters recommended that the Agency allow any use of sized chat
since it has lower lead concentrations than raw chat. Studies of the
lead concentrations found in raw chat piles indicate that those
concentrations vary from pile to pile. Data indicates that particles
finer than sieve size 40 in raw chat tend to have a TCLP for
lead of greater than 5 mg/l, while larger particles in the raw chat
tend to have a TCLP for lead of less than 5 mg/l. While the Agency
acknowledges these results, commenters did not provide information
showing a lack of risks from other uses of washed chat not covered by
this rule. As a result, the Agency is unable to allow these other uses
unless the user can show the use is protective through a case-by-case
demonstration as discussed previously.
v. Use of the SPLP Versus the TCLP
EPA developed the TCLP as a tool to predict the leaching potential
of constituents from waste in a municipal solid waste landfill. The
TCLP method is used to determine if a waste is hazardous under 40 CFR
261.24 (see the Toxicity Characteristic rule, 55 FR 46369; November 2,
1990). The TCLP is also used in listing hazardous wastes to estimate
leachate concentrations for use in groundwater modeling (for example,
see the petroleum listing, 63 FR 42110, August 6, 1998). The TCLP
leaching solution contains acetic acid that is adjusted to a pH of 4.93
or 2.88, depending on the acidity of the waste sample.
On the other hand, EPA developed the SPLP as a method to predict
the leaching from wastes or soils under exposure to the slightly
acidic, dilute solution generated by normal rainfall. The SPLP test
uses a leach solution which mimics acid rain, while the TCLP uses a
leach solution which mimics acids formed in municipal landfills. In
past actions, EPA has recognized that the TCLP's use of organic acids
may not be appropriate for disposal scenarios that do not involve
municipal landfills. For example, in the proposed rule for management
and disposal of lead-based paint debris, EPA used the SPLP to assess
leaching from landfills that do not accept municipal wastes (see 63 FR
70189; December 18, 1998). Similarly, EPA utilized the SPLP in
screening low hazard wastes as part of its 1989 Bevill determination
(see 54 FR 36592; September 1, 1989). The use of chat in transportation
construction projects would preclude chat from being exposed to the
conditions found in municipal landfills. Chat used in transportation
construction projects will, however, be exposed to rainfall that then
enters the groundwater.
In determining which leach test to require, the Agency believes
that the SPLP is the more appropriate test. As stated previously, the
TCLP was designed as a screening test to simulate the leaching
potential of wastes in municipal solid waste landfills. Since it
[[Page 39342]]
is highly unlikely that road surfaces would be exposed to leaching
conditions found in municipal landfills, and because the SPLP test is a
more likely scenario that would simulate the leaching potential of
metals in chat used in transportation construction projects, we are
requiring that if chat is to be used in PCC, granular road base,
flowable fill, stabilized road base or chip seals, the user make a
case-by-case demonstration using the SPLP test.
vi. Rationale for Setting National Primary Drinking Water Standards
Versus National Recommended Water Quality Criteria, and Dilution and
Attenuation Factors (DAFs)
Because the Agency is requiring leachate testing if chat is to be
used in PCC, granular road base, flowable fill, stabilized road base or
chip seals, the Agency also must establish specific numeric criteria.
In the proposal, the Agency requested comment on this issue.
Specifically, the Agency stated, ``For example, the Agency could
specify that the results of testing would need to meet the Primary and
Secondary Drinking Water Standards for lead, cadmium, and zinc. The
Agency also solicits comment on whether the leachate should be measured
against the National Recommended Water Quality Criteria which address
acute and chronic biological effects.'' The Agency also requested
comment on whether a Dilution and Attenuation Factor should be applied
to reflect how contaminant concentrations may change as they move
through the environment (see 64 FR 16738-39). The Agency received only
one comment on this issue. The commenter suggested that SPLP results
should be measured against state water quality standards for lead,
cadmium and zinc, and the Agency should use the chronic criteria for
protection of aquatic life.
The Agency disagrees with the commenter that we should use the
State water quality criteria instead of the National Primary Drinking
Water standards for lead and cadmium. State water quality criteria are
established for the protection of aquatic life and human health in
surface water for approximately 150 pollutants. National Primary
Drinking Water standards protect public health by ensuring safe
drinking water and protecting ground water. EPA has selected the
National Primary Drinking Water standard for lead and cadmium since
those standards are most protective of human health. The Agency has
selected these standards for a variety of reasons. First, review of the
Tar Creek Superfund site RODs indicated that one of the metals of
concern is lead. The 2005 OU studies on the use of chat in asphalt also
indicated that lead, cadmium and zinc are the principle heavy metals of
concern in chat. Those conclusions are based on review of a series of
studies which evaluated the metals concentrations in raw chat piles.
They are also the criteria that EPA used in determining that chat used
in hot mix asphalt is safe and environmentally protective.
RODs also show that runoff from chat piles may be adversely
affecting biological resources in streams throughout the Tar Creek
Superfund site. Agency review of the environmental impacts of zinc (see
ATSDR report on zinc) confirms that it can adversely affect aquatic
species. Since the Agency agrees with the commenter that aquatic life
should be protected, the Agency has decided to use the freshwater
chronic National Recommended Water Quality Criteria for zinc of 120
[mu]g/l. It should be pointed out that there is no National Primary
Drinking Water standard for zinc and that the National Secondary
Drinking Water standard for zinc is a non-enforceable guideline
regulating contaminants that may cause cosmetic effects or aesthetic
effects in drinking water. The Agency believes it is more appropriate
to use the National Recommended National Water Quality Criteria for
zinc since it addresses aquatic toxicity, as opposed to the National
Secondary Drinking Water standard which addresses cosmetic and
aesthetic effects.
As noted above, other commenters stated that they did not believe
leachate testing is necessary when chat is mixed with asphalt or
concrete. They asserted that such uses were safe and environmentally
protective. With respect to most uses of chat in asphalt; i.e., hot mix
asphalt, warm mix asphalt, cold mix asphalt, slurry seals, and
microsurfacing, the Agency agrees with the commenters. However, as
stated previously, there is insufficient data or evidence that other
uses of chat; e.g., in PCC, granular road base, flowable fill,
stabilized road base or chip seals are safe and protective. This final
rule allows these uses of chat in transportation construction projects
if the user conducts SPLP testing and the leachate does not exceed the
National Primary Drinking Water Standards for lead and cadmium and the
freshwater chronic National Recommended Water Quality Criteria for zinc
of 120 [mu]g/l.
At proposal, the Agency also solicited comment on whether Dilution
and Attenuation Factors (DAFs) should be applied to the leachate
criteria if such criteria were established. The Agency received only
one comment on this issue. The commenter suggested that to assess
surface water quality, a DAF of 100 times the Water Quality Criteria be
used, while for groundwater no DAF be used and reliance should be
directly on the primary MCLs. This rule is not establishing DAFs due to
the lack of data the Agency has regarding the leachate potential for
uses requiring SPLP testing, a lack of data to properly establish DAFs
which would assure that chat use is safe and environmentally
protective, and because the Agency did not use DAFs in evaluating the
use of chat in hot mix asphalt. Therefore, we are requiring that chat
used in PCC, granular road base, flowable fill, stabilized road base or
chip seals undergo SPLP testing prior to its use and the results
compared to the National Primary Drinking Water Standards for lead and
cadmium and the freshwater chronic National Recommended Water Quality
Criteria for zinc of 120 [mu]g/l, without DAFs. Again, if the test
results do not exceed the National Primary Drinking Water Standards for
lead and cadmium and the freshwater chronic National Recommended Water
Quality Criteria for zinc, the test results do not need to be submitted
to EPA or the State for review and approval.
vii. Rationale for Use of Site-Specific Risk Assessments
As noted above, a chat user can conduct SPLP testing prior to use
in PCC, granular road base, flowable fill, stabilized road base or chip
seals to demonstrate, on a case-by-case basis, that the use of chat in
such uses are safe and environmentally protective. If the results of
such testing exceed the standards noted above, the chat user may still
make another case-by-case showing by conducting a site-specific risk
assessment. Our rationale for allowing chat uses based on site-specific
risk assessments is to encourage greater use of chat provided the uses
are safe and protective. We believe site-specific risk assessments
conducted according to EPA guidelines referenced below will provide the
necessary data to determine whether a proposed use is safe and
protective. The Agency received comments on the April 4, 2006 proposal
requesting that EPA allow these uses of chat. Some commenters argued
that allowing these uses would encourage greater use of chat and
facilitate the elimination of chat piles. They also suggested that
these uses would be more protective of human health and the environment
than the chat piles, however, the commenters did not
[[Page 39343]]
provide data or evidence to show that these uses are in fact safe and
protective. Nevertheless, EPA agrees with the commenters that
encouraging chat use, as long as uses are safe and environmentally
protective, would lead to a quicker drawdown of the chat piles and
ultimately benefit the communities where the piles are located. As a
result, the use of chat in PCC, granular road base, flowable fill,
stabilized road base or chip seals will be allowed in transportation
construction projects if there is a demonstration through a site-
specific risk assessment, as described below, that the use is safe and
environmentally protective.
Such risk assessments involve analyses of how the leachate moves
into surface or groundwater and whether metals concentrations down
gradient from the chat use location will exceed relevant standards.
Therefore, risk assessments involve the modeling of leachate in the
environment and findings of whether, after such movement, health or
environmental based standards are exceeded. This type of surface and
groundwater modeling involves analysis of the type and concentration of
metals in the leachate and their mobility. A commenter noted that the
Agency should compare the results of modeling of leachate movement in
ground water against the National Primary Drinking Water standards as
the basis in determining if a use is protective. We generally agree
with this position, as it applies to lead and cadmium. However, in some
cases, drinking water standards may not be relevant for ground water,
for example where it is already contaminated so that it is not suitable
for drinking, and controls are in place to prevent consumption. Also,
where the ground water drains into surface water, the reviewing agency
should consider the freshwater chronic Water Quality Criteria for zinc
of 120 [mu]g/l.
EPA, or the State environmental agency, if the State chooses to do
so, will determine whether the proposed use is safe and environmentally
protective based on the information in the site-specific risk
assessment. The agency conducting the evaluation may request additional
information from the chat user to assure that the risk assessment meets
EPA or State criteria and there is sufficient information to determine
if the proposed use is safe and environmentally protective.
EPA, or the state if it chooses to do so, will solicit public input
by a number of means; for example, it can publish its proposed
determinations in a local newspaper, prior to making a final
determination. In addition, EPA will provide sufficient time for the
public to review and comment on the proposed decision. For example, EPA
provides 45-days for public review and comment of proposed permit
decisions under the hazardous waste regulations. Such timeframe may
also be appropriate in this case. States might achieve the same level
of public input by following a similar approach.
If a chat user decides to conduct a site-specific risk assessment,
it is recommended that they consult with EPA or the State environmental
agency to discus how best to conduct the risk assessment to reflect
existing site conditions and receptors.
EPA has established guidelines on how to conduct risk assessments.
These guidelines were developed to help guide EPA scientists in
assessing risks to human health from chemicals or other agents in the
environment. They also inform EPA decision makers and the general
public about these procedures. When risk assessments are conducted, we
recommend that these guidance documents be utilized (see http://cfpub.epa.gov/ncea/cfm/nceaguid_human.cfm). EPA's Superfund program
has also developed guidance on how to conduct human health and
ecological risk assessments. Those guidance documents can be accessed
at: http://www.epa.gov/oswer/riskassessment/superfund_hh_exposure.htm.
viii. Uses Authorized by a State or Federal Response Action
This rule also establishes a criterion that other uses of chat in
transportation construction projects funded, in whole or in part, with
Federal funds will be safe and environmentally protective if they are
part of, and otherwise authorized by, a State or Federal response
action undertaken in accordance with Federal or State environmental
laws. Such actions are undertaken with consideration of site-specific
risk assessments, which account for the full variety of conditions at
the site, such as existing contamination in assessing risks to human
health and the environment. For example, Region 7 assessed the
protectiveness of using unencapsulated chat as road base for a proposed
highway bypass and, as a result of a site-specific risk assessment,
determined that such use, compared to other alternatives, was a more
protective action (Engineering/Cost Analysis--Highway 71, Jasper
County, Missouri, USEPA Region 7, August 2000).
This approach was included in the proposal and the Agency did not
receive any adverse comments on this approach. The Agency also
discussed this option during the comment period with State
environmental regulatory agencies who indicated that they supported the
ability to utilize chat as a result of their response actions.
ix. Certification
At proposal, the Agency noted that the rule should include a
certification requirement. A number of commenters objected to this
requirement since they argued that this type of reporting would
increase the cost of using chat and therefore discourage its use. The
Agency noted at that time that the BIA had established a similar
certification requirement for chat sold from lands under their
authority.
The Agency does not agree that this rule's certification
requirements will place an undue financial burden on chat users (see
Economic impact section of this rule). In addition, the Agency believes
that the certification requirement is necessary to assure that chat
users comply with today's action, and that it is not used in a manner
that would necessitate Federal or State cleanup actions. The
certification will also serve as a means to inform State environmental
agencies about the use of chat in their state.
This final rule requires that chat users must submit a signed,
written certification to the environmental regulatory agency in the
State where the chat is to be used within 30 days of the date of
acquisition. The certification will contain the following information:
location of origin of the chat, amount of chat acquired, and a
Certification Statement that the chat used in this transportation
project will meet the criteria established by this rule. If the chat is
sold or otherwise transferred to another party, the acquirer shall
provide a copy of the certification to the new owner of the chat. The
new owner shall submit a certification according to Sec. 278.4(a)(1).
The new certification supersedes all previous certifications.
The acquirer of chat, and any other person that receives the chat,
will also maintain copies of all of the following for three years; (a)
A copy of the certification following transmittal to the State
department(s) of the environment, and, as appropriate, (b) any SPLP
testing results, or (c) any site specific risk assessments.
2. Non-Transportation Uses--Cement and Concrete Projects
Title VI of Section 6018 of the Safe, Accountable, Flexible, and
Efficient Transportation Equity Act of 2005 (HR 3 or ``the Act''),
amended Subtitle F of the Solid Waste Disposal Act (42 U.S.C. 6961 et
seq.) by adding Sec. 6006. This
[[Page 39344]]
provision also requires the Agency to develop environmentally
protective criteria for the safe use of chat in cement and concrete
projects. However, these criteria are only guidance and are not
Federally enforceable since the Act requires only that transportation
construction projects funded, in whole or in part, with Federal funds
meet the criteria established in this rule.
Non-transportation uses of chat include its use as a raw material
in the manufacture of cement and as an aggregate in PCC. This final
rule establishes criteria as guidance for chat used in cement and
concrete for non-transportation, non-residential projects.
Specifically, chat used in cement and concrete in non-transportation
construction projects should only be used in non-residential
construction projects, and for structural purposes if, based on a case-
by-case basis, a demonstration shows that the proposed use of chat is
safe and environmentally protective. The remainder of this section
discusses the approach and rationale for the approach taken.
a. What is our approach?
Based on the lack of leaching data available on the use of chat in
PCC, the Agency is establishing guidance that chat used in cement and
concrete projects for non-transportation uses rely on the same approach
taken for the transportation use of chat used in PCC. That is, for such
uses, the Agency recommends that chat only be used in cement and
concrete for non-transportation, non-residential construction projects
if, on a case-by-case basis, either: (1) Synthetic Precipitation
Leaching Procedure (SPLP, EPA SW-846 Method 1312) tests are conducted
on the proposed material and the leachate testing results show that
concentrations in the leachate do not exceed the National Primary
Drinking Water Standards for lead and cadmium and the fresh water
chronic National Recommended Water Quality Criterion for zinc of 120
[mu]g/l; or (2) EPA (or a State environmental Agency, if it chooses to
do so) has determined, based on a site-specific risk assessment and
after notice and opportunity for public comment, that the releases from
the chat mixture in its proposed use will not exceed the National
Primary Drinking Water Standards for lead and cadmium in drinking water
sources and the fresh water chronic National Recommended Water Quality
Criterion for zinc of 120 [mu]g/l in surface water. It is recommended
that such a finding should be subject to public notice and comment
before any decision is final.
At proposal, the Agency sought comment on whether it should place
some restrictions on the use of chat in cement and concrete in non-
transportation projects. The proposal offered a restriction that chat
used in such non-transportation projects be limited to non-residential
uses. The Agency assessed information about potential exposure of
metals in cement and concrete containing chat when used for residential
purposes and was unable to find data on whether such use presented
risks to human health or the environment. Due to the lack of
information, the Agency proposed to limit potential exposures by
limiting chat in cement and concrete to only non-residential uses. That
is, the guidance would allow, after SPLP testing or site-specific risk
assessment, chat in cement or concrete to be used in commercial and
industrial uses. Some commenters supported this limitation to non-
residential uses to limit potential human exposure to lead. Other
commenters requested that such uses also be allowed in residential
structural uses. However, the Agency did not receive data or
information supporting this request. Considering the lack of data, the
range of risks related to the residential use of chat in cement and
concrete remains largely unknown, and that there is the potential for
these uses to be used for ``sham recycling,'' the Agency believes it is
prudent to maintain the non-residential restriction in our guidance,
even though we recommend in this rule that a case-by-case demonstration
be made that such use is safe and environmentally protective.
b. What is the rationale for this guidance?
As noted previously, the Peer Review Panel that reviewed the risk
screen document and commenters to the proposed rule indicated that
there was insufficient leachate data to characterize the risk from the
use of chat in cement and concrete. Therefore, as we discussed
previously, this guidance recommends that for non-transportation
construction projects, chat only be used in cement and concrete for
non-residential uses and only if a case-by-case showing is made, based
on SPLP testing or a site-specific risk assessment, that the proposed
use is safe and environmentally protective.
In the past, chat has been used in the manufacture of cement and
used in concrete for building foundations and roads. Ash Grove Cement,
in a communication with EPA (Memo to File: Conversation with Ash Grove
Cement Regarding Use of Chat, which is available in the docket to this
final rule), indicated that it had produced cement clinker in 2001-2003
using chat as a silica substitute. According to Ash Grove, the clinker
produced with chat met American Society for Testing and Materials
(ASTM) standards for clinker. However, Ash Grove is no longer producing
cement with chat. The Agency also reviewed published data and conducted
interviews with chat sellers and State regulators and determined that
chat is not currently being used in cement manufacturing or in non-
transportation PCC projects.
Pursuant to section 6006(a)(1) of the Act, the Agency reviewed the
possible use of chat as aggregate in concrete, and as it did in its
transportation construction projects evaluations, concludes that
certain non-transportation uses of chat in concrete may be safe and
environmentally protective. However, due to the lack of data for non-
transportation uses, information is required that shows such uses are
protective. Consequently, EPA recommends that using chat in cement and
concrete be allowed only if a case-by-case showing is made that shows
such use is safe and environmentally protective (see discussion under
concrete in transportation uses for further details of the approach
recommended and our rationale). To meet this goal, the Agency
recommends that such non-transportation uses of chat in cement and
concrete projects be limited to non-residential foundations, slabs,
concrete wall panels, retaining walls, commercial and industrial
parking areas and sidewalks. Other non-residential uses also may be
approved after a review of SPLP test data or a site-specific risk
assessment as described throughout this final rule. As noted
previously, we would not recommend that chat be used in residential
settings (e.g., concrete countertops, sidewalks, foundations, slabs,
driveways, roads).
There were comments raising concerns about the possible exposure of
workers involved in non-transportation construction projects to chat in
cement or concrete. The Agency has reviewed the Occupational Safety and
Health Administration (OSHA) standards governing worker health and
safety related to the construction and demolition of non-residential
non-transportation uses of cement and concrete. Based on this review,
the Agency concludes that existing standards require employers to
provide adequate protection to workers from dusts and metals and these
standards would extend to dusts and metals from cement and concrete
containing chat. It should also be noted that when chat is
[[Page 39345]]
used as an aggregate in concrete, worker exposures would be limited
since the metals would already be bound.
C. Relationship of This Rule to Other Federal Regulations and Guidance
For all uses of chat in transportation construction projects
carried out, in whole or in part, with Federal funds that is affected
by this action, users must meet the relevant specifications (e.g., for
durability, granularity) established by the relevant state departments
of transportation and the Federal Highway Administration (FHWA), prior
to it being used in transportation projects. This final rule does not
affect or change these specifications and requirements.
The FHWA established minimum standards at 23 CFR Part 626 for
Highways (including references to the AASHTO Standard Specifications
for Transportation Materials and Methods of Sampling and Testing) and
at 23 CFR Part 633, Required Contract Provisions. Aggregate
requirements for Concrete include AASHTO-6, Fine Aggregate for Portland
cement concrete and AASHTO-80, Coarse Aggregates for Portland cement
concrete. Technical requirements for Hot Mix Asphalt include AASHTO-29,
Fine Aggregate For Bituminous Paving Mixtures and ASTM D6155, Standard
Specification for Nontraditional Coarse Aggregates for Bituminous
Paving Mixtures. FHWA National Highway Standard Specifications and
Supplements is divided into topic areas corresponding to the divisions
used in the ``Guide Specifications for Highway Construction'' Manual
published by the AASHTO and can be accessed at (http://fhwapap04.fhwa.dot.gov/nhswp/servlet/
LookUpAgency?category=Standard+Specifications+and+Supplements) \12\.
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\12\ State highway construction specifications can be found at
the following internet web sites for Oklahoma (http://www.okladot.State.ok.us/materials/700index.htm), Kansas (http://www.ksdot.org/burMatrRes/specification/default.asp), and Missouri
(http://www.modot.State.mo.us/business/standards_and_specs/highwayspecs.htm).
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In addition, ASTM Standard C-33 restricts the amount of chert that
may be mixed into PCC when the chert has a specific gravity (ratio of
its density to the density of water) less than 2.4. Chat in the Tri-
State area, a form of chert, has a specific gravity greater than 2.4
and thus, would not be limited by this standard. Chat does, however,
have the potential to be a poor performing aggregate when used in PCC
due to its potential alkali-silica reactivity (ASR) \13\.
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\13\ The Agency also reviewed studies on the potential for
alkali-silica reactions in chat concrete and concludes that it can
be used if appropriate materials testing is conducted prior to use.
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The Agency also assessed current regulation of dusts from milling
and demolition. As part of this assessment, based on the Peer Review
comments, the Agency conducted an additional risk screen from the
milling of chat encapsulated in asphalt road surfaces. Based on this
review and analyses, we conclude that exposure to fine particles
released during milling and demolition operations would be limited to
on-site workers (for the basis of this conclusion, see Section V). The
Occupational Safety and Health Administration have established limits
for worker exposure to the metals found in chat (29 CFR 1926.55--Safety
and Health Regulations for Construction, Gases, Vapors, Fumes, Dusts,
and Mists, available at: http://www.osha.gov/pls/oshaweb/owastand.display_standard_group?p_toc_level=1&p_part_number=1926). EPA has reviewed the OSHA standards (see Section V ``What
Are the Environmental and Health Impacts?'' below) and concludes that
the OSHA standards require adequate worker health and safety protection
and thus, it is not necessary to promulgate additional standards to
address this issue.
D. How Does this Rule Affect Chat Sales From Lands Administered by BIA
or Directly From Tribal Lands?
BIA signed a Memorandum of Agreement with EPA Region 6 in February
2005, designed to lead to the renewed sale of chat from Tribal lands
and from lands administered by BIA. EPA's rule does not prevent chat
sales, nor is it intended to delay such sales. This rule is consistent
with BIA's chat sales requirements.
The draft sales agreement prepared by BIA requires the submittal of
a certification which requires buyers of chat from tribal lands to use
it in a fashion which is deemed acceptable by EPA. This rule requires
the same certification for the use of non-tribal chat.
E. How Does This Rule Affect CERCLA Liability, Records of Decision, and
Response Actions?
If waste material, such as chat, is used in a way that creates a
threat to human health or the environment, the owner of the property
and the party responsible for creating the hazardous situation could be
liable for conducting or financing a response action under CERCLA or
State law.
This rule establishes criteria for chat use in federally funded
transportation construction projects. However, such Federal funding
does not include compensation for any response action as defined in
CERCLA section 101 (25), (42 U.S.C. Section 9601 (25)) involving chat
or other hazardous substances.
Finally, nothing in this rule shall affect existing RODs issued at
EPA National Priorities List sites or Removal Decisions associated with
chat nor does the rule affect the determination of liability as noted
in CERCLA Sections 104, 106, and 107 or State corrective action
decisions.
F. How Does This Rule Affect the Use of Federal Funds Administered by
the U.S. Department of Transportation for Transportation Construction
Projects?
Through Title VI of Section 6018 of the Safe, Accountable,
Flexible, and Efficient Transportation Equity Act of 2005 (HR 3 or
``the Act''), Congress amended Subtitle F of the Solid Waste Disposal
Act (42 U.S.C. 6961 et seq.) by adding Sec. 6006. This provision
requires, among other things, for the Agency to develop environmentally
protective criteria (including an evaluation of whether to establish a
numerical standard for concentrations of lead and other hazardous
substances) for the safe use of granular mine tailings from the Tar
Creek, Oklahoma Mining District, known as ``chat,'' in transportation
construction projects that are carried out, in whole or in part, using
Federal funds. Section 6006(a)(4) requires that any such use meet EPA's
established criteria.
As noted above, the oversight of Federal funds used in
transportation is the responsibility of the U.S. DOT. Its policies and
procedures related to the management of those funds can be found in the
Code of Federal Regulations beginning at Title 23 Part 1(23 CFR 1). DOT
requires that users of Federal transportation funds must comply with
applicable State or Federal regulations (23 CFR 1.9 and 1.36). DOT will
include reference to compliance with this rule in its guidance
regarding the awarding of federal transportation funding.
V. Impacts of the Final Rule
A. What Are the Potential Environmental and Public Health Impacts From
the Use of Chat in Transportation Construction Projects?
For the proposed rule, we conducted an assessment of the risks
associated with the proposed use of chat. (See the preamble to the
proposed rule at 71 FR 16729, April 4, 2006 and the Report on Potential
Risks Associated with the Use of Chat from the Tri-State Mining Area
[[Page 39346]]
in Transportation Projects (RTI, 2006) for more details on this
assessment.) Data from studies conducted by OU present total metal
concentrations and leaching characteristics of (1) asphalt concrete
surface and base mix formulations prior to roadway application, (2)
asphalt and stabilized base samples from roads currently in use, (3)
spent asphalt concrete samples that were broken up and stored in piles,
and (4) milled asphalt concrete samples intended to simulate
weathering. These studies show that the metals are tightly bound in the
encapsulated matrix when the total metals concentrations in asphalt
concrete samples are compared to corresponding TCLP and SPLP leachate
concentrations. In particular, for asphalt concrete surface mix and
stabilized road base uses for all four categories, the highest TCLP
concentrations reported for lead and cadmium were below the toxicity
characteristic (TC) regulatory limits (5 mg/L and 1 mg/L,
respectively). In fact, when the metals were detected, in many cases,
they were below the drinking water MCLs for lead and cadmium.\14\ For
zinc, when detected, the TCLP concentrations were found to be generally
above the SMCL (5 mg/L) by up to a dilution and attenuation factor of
16. As we have noted earlier, however, we believe that use of the TCLP
in evaluating the leaching potential of encapsulated chat used in
transportation construction projects is inappropriate since it does not
accurately reflect the environmental conditions of the management
scenario. Rather, we believe the SPLP is a more appropriate test of the
conditions expected to lead to leaching of metals from this material.
In addition, where leachate testing was conducted using the TCLP and
SPLP methods, in all cases, the concentrations of the metals were
approximately an order-of-magnitude lower for the SPLP as compared to
the TCLP. In most cases, the SPLP concentrations were below the MCLs
for lead and cadmium and were always below the SMCL for zinc.
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\14\ Comparisons of leachate concentrations with drinking water
criteria assume that no dilution or attenuation occurs before the
dissolved metals reach a drinking water well or surface water. The
Agency believes this worst case scenario is highly unlikely to occur
in the area of the country where the use of chat is occurring.
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In summary, this assessment concluded that based on the available
reports and data reviewed, the use of chat as an aggregate for hot mix
asphalt poses negligible risks to human health through the groundwater
exposure pathway, while some unencapsulated uses of chat may pose
substantial risks to human health and the environment. The leachate
data representing the binding capacity of the asphalt matrix--
particularly in hot mix asphalt--show that the metals are tightly bound
throughout the life of these products.
By inference and based on limited data, it appears as though
certain other uses of chat, such as chat contained PCC, flowable fill
and stabilized base would have similar binding properties that would
reduce the leaching of metals. However, the available leachate data on
these uses are very limited, and may be a concern given the volume of
chat that could be used in road construction projects.
In addition to these data deficiencies on specific uses, we
identified other data gaps with respect to risk, including the milling
of chat-containing asphalt concrete. Milling of asphalt concrete
roadways during resurfacing would likely release to the air fine chat
particles, which could lead to contamination of residential soils and
homes located in the vicinity of a road construction project. Our
assessment concluded that these events would be episodic and infrequent
(corresponding to approximately once over a 15 year lifespan of the
asphalt), resulting in transitory exposures of relatively short
durations. The Agency assumed that the milling operations would be
subject to regulations and best management practices that would protect
the health of workers. However, the data were not available to evaluate
the potential exposures to nearby residents from chat concrete
particles blowing on to residential areas. The assessment concluded,
however, that the uncertainty of the exposures to residents from
milling and management of encapsulated chat products during road
resurfacing could be an area for future study.
The Agency also considered in its assessment non-transportation
uses and the demolition of structures containing chat. We did not
perform any environmental modeling as with the evaluation of
transportation uses. However, with existing fugitive dust regulations
and demolition practices, we concluded that exposures from dust
generated during the use or demolition of chat in concrete buildings
would not pose significant risks to human health.
Concurrent with the public notice and comment period for the
proposed rule, the Agency conducted an external peer review of its
assessment, Report on Potential Risks Associated with the Use of Chat
from the Tri-State Mining Area in Transportation Projects. Based on the
comments received from the public and from the Peer Reviewers, the
Agency has revised the screening evaluation report to reflect those
comments. The following discussion provides the Agency's response to
the major comments received from the peer reviewers. In addition, the
revised report and our response to comments are provided in the docket
for this rule.
The following are the major issues raised by the peer reviewers and
the Agency's responses.
(1) Potential Exposures During the Milling Process Were Not Evaluated
The peer review commenters believe that the lack of data on air
emissions from the grinding of the road surface prior to resurfacing
(``milling'') is a considerable source of uncertainty in evaluating the
potential risks of using chat in hot mix asphalt. They contend that
potential exposure to chat dust generated during the milling of asphalt
concrete roads, in addition to the storage of milled materials, should
be evaluated through pathways that consider both the inhalation of dust
and the incidental ingestion of metals contaminated soil from areas
adjacent to a roadway being milled. In addition, peer review commenters
noted two additional concerns associated with the milling process: (a)
Addressing the short-term exposure of lead to a developing fetus or
young child during critical and sensitive periods of growth, and (b)
considering background levels of lead in the screening analysis.
The Agency believes that the concerns raised by the peer reviewers
are valid and conducted further study to address them. Specifically, we
performed a screening analysis to evaluate exposures through direct
inhalation of air emissions associated with milling and incidental
ingestion by a child of metals-containing soils adjacent to a milled
roadway. The assessment was designed to be conservative by selecting
both a methodology and the use of high-end parameters that result in
upper-bound estimates of hazard and risk. Examples of high-end
parameters used in the screen are: (1) Total metals concentrations for
lead, zinc, and cadmium from the 2005 OU study where chat comprised 40%
of the aggregate used in hot mix asphalt, where typical hot surface mix
includes up to 20% chat, (2) the risk screen utilized maximum, hourly
air concentrations, rather than an average concentration for inhalation
exposure to an adult and also to a child (using the Agency's Integrated
Exposure Uptake Biokinetic Model for lead in Children (IEUBK), (3) the
risk screen assumed the placement of the milled asphalt concrete
storage pile on the side of a
[[Page 39347]]
road closest to a receptor and locating the receptors at the point of
maximum off-site air concentration, (4) the risk screen assumed
exposure to chat dust occurs 24 hours/day, for seven days a week, and
(5) protective assumptions were used with respect to emissions factors
for street sweeping and storage pile loading/unloading operations and
meteorological conditions.
The results of this additional analysis show that the milling of
chat in asphalt concrete roadways will not adversely affect public
health. Specifically, for the direct inhalation pathway, the highest
cancer risk predicted for cadmium was 2 x 10-9 (that is, 2
excess cases of cancer per 1,000,000,000 people exposed to the
estimated air concentration). The highest non-cancer hazard quotient
for cadmium was 0.004 (a hazard quotient is the ratio of the air
concentration of cadmium and the level at which no adverse effects are
expected; if the hazard quotient is less than 1, then no adverse health
effects are expected as a result of exposure). For the direct ingestion
of soil adjacent to the roadway, the predicted concentrations of metals
in soil were 37.6 (Zn), 3.2 (Pb), and 0.2 (Cd) mg/kg soil, all of which
are below (a) The generic EPA Superfund Soil Screening Levels (SSLs)
for cadmium and zinc, (b) the 400 ppm CERCLA/RCRA screening level for
lead in residential soils, and (c) the background soil concentrations
for the western U.S. The comparison with background concentrations was
intended to provide additional insight into the contribution to the
current environmental ``burden'' of these metals in the area in which
chat-containing surface mixes could be used. A soil concentration below
background levels suggests that the milling operations will not result
in significant increases in the zinc, lead, and cadmium concentrations
in soil.
In order to address the concern of lead exposures for children, the
Agency used the IEUBK model, which includes multiple pathways of lead
exposures (for example, inhalation of dust, ingestion of soil and dust,
and dietary intake), and is considered a good predictor of potential
long-term blood-lead levels for children in residential settings. We
ran the IEUBK model using the maximum air concentration estimated from
the direct inhalation analysis, and both the soil concentration we
estimated due to milling operations and a separate analysis using a
background soil concentration for lead reported in the western U.S. In
both cases, a hypothetical child exposed to the estimated air and soil
levels resulted in a chance of less than 5% of exceeding a 10[mu]g/dL
blood-lead level. The blood-lead levels predicted were 4.328[mu]g/dL
and 4.473[mu]g/dL, respectively, from the lead levels we estimated in
soil from milling operations and for background soils. The criterion of
no more than a 5% chance of exceeding a 10[mu]g/dL blood-lead level is
the current Agency guidance level. The Center for Disease Control
considers a blood-lead level of 10[mu]g/dL to be of concern for
children.
A complete discussion of the screening analysis for the milling of
asphalt concrete roads is available in the public docket supporting
this final rule. In addition, the screening level analysis was reviewed
by selected Agency experts in the fields of emissions modeling and risk
assessment. Their comments are also in the docket supporting this final
rule. Responses to their comments are reflected in the final document
for the screening analysis (RTI, 2007).
(2) Demolition
The peer review commenters raised concerns that dusts resulting
from the demolition of chat contained in asphalt concrete and PCC could
pose a threat to human health. Road surfaces using chat may also be
demolished at the end of their useful life (like conventional asphalt
concrete, the useful life could be on the order of 15 years). The
demolition of road surfaces containing chat would likely involve low
emissions of chat dust particles, theoretically with subsequent
dispersion and deposition to nearby soils. Based on discussions with
demolition contractors, it is apparent that dusts from such demolitions
are regulated under the State fugitive dust regulations. Exposure to
such dusts probably would be limited to workers because existing State
regulations require that dusts be contained within the area of origin.
As noted elsewhere in this preamble, OSHA has established exposure
limits for dusts and metals for workers in construction and demolition.
Most, if not all, road concrete which is demolished is reused as fill
or as road base. Based on the information noted above, the Agency
concludes that exposure to chat in demolished pavement does not present
a significant risk.
(3) Data Are Insufficient To Establish Risks From the Use of
Encapsulated Chat in Products Other Than Hot Mix Asphalt
The peer review commenters noted that there is very limited
information to determine whether the use of chat in products other than
HMA poses low risk. One of the Peer Reviewers stated that it is
``likely that the risk from other encapsulated forms will be closer to
HMA than to unencapsulated forms, but it is not possible to state how
close it will be to the HMA risks.''
The Agency generally agrees that data are insufficient to determine
if the use of specific products other than HMA evaluated in the Report
on Potential Risks Associated with the Use of Chat from the Tri-State
Mining Area in Transportation Projects are environmentally safe.
Consequently, as discussed elsewhere in this preamble, the Agency is
allowing the use of chat in Portland cement concrete products (and
certain other uses) if a person can demonstrate, on a case-by-case
basis, either that: (1) Synthetic Precipitation Leaching Procedure
(SPLP, EPA SW-846 Method 1312) tests are conducted on the proposed
material and the leachate testing results show that concentrations in
the leachate do not exceed the National Primary Drinking Water
Standards for lead and cadmium and the fresh water chronic National
Recommended Water Quality Criterion for zinc of 120 ug/l \15\; or (2)
EPA (or a State environmental Agency, if it chooses to do so) has
determined, based on a site-specific risk assessment and after notice
and opportunity for public comment, that the releases from the chat
mixture in its proposed use will not cause an exceedance of the
National Primary Drinking Water Standards for lead and cadmium in
potential drinking water sources or the fresh water chronic National
Recommended Water Quality Criterion for zinc of 120 ug/l in surface
water.
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\15\ It should be noted that this case-by-case showing does not
require public notice and comment.
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We believe this approach directly addresses the Peer Review
commenters concerns, while at the same time allow persons to proceed
with the use of chat in other products or activities if they can make
the relevant showing.
(4) Non-Transportation Risks-Demolition
Peer review commenters requested that the Agency carefully review
whether existing regulations adequately protect workers from the
demolition of chat encapsulated materials. To address that request,
this assessment considered how dust generated during the demolition of
nonresidential buildings which used chat encapsulated in PCC would
occur and whether regulations address worker exposure.\16\ The Agency
[[Page 39348]]
assumed that such buildings would be demolished once every 30 years,
based on the Internal Revenue Service allowable straight-line
depreciation for non-residential real property of 31.5 years. The
Agency determined that demolition practices, as noted by the National
Association of Demolition Contractors, would generally generate dusts
for periods rarely in excess of 20-30 minutes when buildings are
imploded. Furthermore, the Agency has reviewed the fugitive dust
demolition regulations in Oklahoma, Missouri, and Kansas and found that
building demolition requires a general fugitive dust permit that
mandates that demolition related dusts be contained within the property
line (most often through the use of water sprays). Based on this
information, the Agency concludes that dusts from the demolition of
nonresidential buildings with chat contained in PCC are not likely to
present a significant threat to human health.
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\16\ The American National Standards Institute ANSI-A 10.6-1983
American National Standard for Demolition Operations Safety
Requirements set minimum dust exposure limits and recommends that no
worker shall be permitted in any area that can adversely affect them
when demolition operations are being performed.
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Even if chat metal levels do not trigger OSHA requirements,
however, other OSHA controls would still be utilized to address worker
health risks from exposure to fine particulates, which indirectly
addresses the issues associated with chat. In particular, demolition of
concrete structures is known to produce extremely fine particles of
crystalline silica. Breathing crystalline silica dust can lead to
silicosis, a commonly known health hazard which has been associated
historically with the inhalation of silica-containing dusts. Silicosis
is a lung disease which can be progressive and disabling; it can lead
to death. The OSHA standards for exposure to dust, (29 CFR 1926.55)
prohibit employee exposure to any material at concentrations above
those specified in the ``Threshold Limit Values of Airborne
Contaminants for 1970.'' OSHA has established for crystalline silica
dust a Permissible Exposure Level which is the maximum amount to which
workers may be exposed during an 8-hour work shift. NIOSH has
recommended an exposure limit of 0.05 mg/m\3\ as a time-weighted
average for up to a 10-hour workday during a 40-hour workweek. Although
the Agency has no reason to believe that chat contained in PCC would
increase the levels of fine particulates, including crystalline silica,
we believe the OSHA/NIOSH standards will provide adequate protection to
workers from potential exposure.
OSHA has also established worker health and safety standards
specific to building demolition in 29 CFR 1926 Subpart T. These
standards require an engineering survey of the building prior to
demolition to identify any risks and implementation of project wide
dust controls. The standards also require compliance with NIOSH
respirable dust standards which essentially require the use of
respirators, if standards noted in 29 CFR 1910 are exceeded. Based on
the Agency's review of the OSHA standards, we conclude that these
regulations provide adequate protection to onsite demolition workers.
One of the Peer Reviewers noted that NIOSH and OSHA standards may
not apply to county or State highway workers and that those safeguards
would not actually protect workers potentially exposed to dusts during
milling or demolition. The Agency has reviewed State and Federal worker
health and safety laws as they apply to demolition, and does not agree
that there is insufficient regulatory protection of workers. The
commenter also noted that existing regulations are not being enforced.
While the Agency has not been able to determine whether this allegation
is accurate, it is beyond the scope of this effort to determine whether
these regulations are being enforced by the states or others.
(5) The Risk From the Generation of Chat Fines During Processing Was
Not Evaluated
The peer review commenters noted that the rule should include
criteria addressing the handling and disposal of chat fines resulting
from the wet sizing of chat. First, the Agency would note that this
final rule does not require that the raw chat be washed or sized prior
to being used. Therefore, any fines that are generated would not be the
result of this rule. Nevertheless, the Agency evaluated the risks from
exposure to fines from chat washing facilities during Superfund Site
investigations at the NPL Sites in the Tri-State Mining District. The
information we have shows that fines may release metals into the
environment. However, the release of these metals can be effectively
controlled by EPA through its oversight authority of the Tar Creek
Superfund site. In addition, we believe that most chat washing will
continue to be conducted at the two known commercial chat washing
facilities located within the Superfund Sites. However, to the extent
that other chat washing facilities become operational, we also believe
that they will be adequately controlled based on our review of the air
and water regulations in Oklahoma, Missouri and Kansas. (See Section
III for a discussion of EPA's evaluation of the states regulatory
programs to control air and water releases at asphalt plants, PCC
plants and chat washing facilities.)
(6) Ecological Risks
The peer review commenters noted that there should be a more
comprehensive analysis of the ecological risks from chat use.
Environmental quality information presented in several studies
indicated that damages to streams had been documented for the Tri-State
Mining Area; however, these studies did not address encapsulated chat
uses, but were from multiple sources of contamination associated with
lead and zinc mining, including subsurface sources (flooded mine
shafts), surface sources (chat piles, tailing sites), and smelting
operations. SPLP analyses for chat encapsulated in hot mix asphalt (OU,
2005) shows that zinc concentrations, when detected, were below EPA's
National Recommended Water Quality Criteria (http://www.epa.gov/waterscience/criteria/wqcriteria.html) for the protection of aquatic
life. This study did not find detectable levels of lead or cadmium in
any leachate using the SPLP method. We do not foresee that
environmental conditions could occur where metals from chat used in
transportation projects, that are funded, in whole or in part, using
Federal funds, would reach surface waters at levels of concern either
through run-off to nearby soils, which would have subsequent
attenuation before reaching surface waters, or via the groundwater
pathway, which would have additional attenuation and dilution in
groundwater before reaching nearby receiving waters.
B. What Are the Economic Impacts?
This Part summarizes projected cost impacts, economic impacts, and
benefits associated with this final rule. A brief market profile is
first discussed, followed by specification of the economic baseline.
Costs and economic impacts are next discussed. These estimates are
presented on an annualized basis. Finally, this Part presents a
qualitative discussion of potential benefits associated with this final
rule.
1. Chat Market Profile
Chat is a byproduct of mining and milling operations that has been
exempted from regulation as a ``hazardous waste'' under Subtitle C of
[[Page 39349]]
RCRA.\17\ However, it can pose risks to human health and the
environment. Currently, chat in the Tri-State Mining District is found
in above-ground piles of varying sizes, reflecting the different types
of mining operations that occurred in each area. The total quantity of
chat in the Tri-State Mining District is roughly 100 million tons. A
small percentage of this total is currently used annually in road
building or other beneficial use projects.
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\17\ See 40 CFR 261.4(b)(7).
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A small, but well-established market for chat in transportation
applications currently exists. The preparation and use of chat is
dominated by a few small operations that purchase, process, and sell
chat to area hot mix asphalt plants for use as an aggregate.
Approximately 95 percent of all current chat use is for aggregate in
hot mix asphalt. A wide range of different projects comprise the
remaining 5 percent.\18\ We have no evidence there is any current use
of chat in cement or Portland cement concrete.
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\18\ Current other uses of chat include: component in anti-skid
surfaces, sand blasting material, and waste water treatment filters.
The Agency believes that additional evaluation, outside the scope of
this rule, is necessary to determine the environmental suitability
of using chat as sand blasting or as filter media.
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The demand for chat as aggregate in transportation uses is price
sensitive and is limited by various technical and performance
standards. However, consistent demand exists as long as chat can be
provided at prices that are competitive with other sources of
aggregate. The key cost drivers for chat include raw material costs,
processing and sizing, if conducted, and transportation. The current
market price for chat, and other forms of aggregate, is approximately
five dollars per ton. This estimate excludes transport cost, but
includes processing and sizing, even though such operations are not
required as part of this rule.
A limited number of small companies act as brokers, processors and
distributors (washers and haulers) of the chat in the Tri-State Mining
District. Chat haulers and washers buy chat from several owners, each
typically owning only a small amount of the total quantity of chat.
Chat is both privately and publicly owned, including chat piles located
on land controlled by the Quapaw Tribe of Oklahoma.
Historical trends and information from regional chat suppliers
suggest that the demand for chat for transportation-related uses is
unlikely to change significantly over the next couple of decades. The
currently viable market is well defined and transportation costs make
chat economically unattractive beyond current market limits. Within the
current market, rates of growth for new roads are modest (estimated at
less than 2 percent per year) and population densities are low in areas
where the use of chat is economically competitive. We are not able to
determine what, if any, impact this rule may have on chat demand for
use in asphalt concrete. Significant chat use in other applications,
such as Portland cement concrete, does not appear to be viable at this
time either for economic or other reasons.
2. Cost Impacts
The value of any regulatory action is traditionally measured by the
net change in social welfare that it generates. Our economic assessment
conducted in support of this rule evaluated compliance costs only.
Social costs are not assessed due to data limitations and the lack of
equilibrium modeling capabilities associated with this industry. The
data applied in this analysis were the most recently available at the
time of the analysis. Because our data and analytical techniques were
limited, the cost impact findings presented here should be considered
generalized estimates.
Our cost analysis examined the potential impact of the rule based
on the use of encapsulated chat that comes from the Tri-State Mining
District. Ninety-five percent of all chat that is used beneficially is
used in hot mix asphalt transportation construction applications. Our
cost analysis, therefore, focused on the use of chat as aggregate in
hot mix asphalt. Chat may also be used for a variety of non-asphalt
transportation and commercial building products.
However, available data appear to indicate that non-asphalt uses of
chat from the Tri-State area generally are not common either due to
economics or a lack of demand.
Our analysis indicates that the incremental cost impacts associated
with this rule are approximately $210,000 per year. This estimate
incorporates costs associated with certification, recordkeeping and
reporting. Sampling and analysis costs, if any, for use in concrete
pavement and nonresidential concrete are not included because the
Agency is unaware of any such use currently taking place and further
believes that such use, if it occurs, will be minimal. Additional
``expanded use'' scenarios are examined in the economic support
document prepared for this action: Assessment of the Potential Costs,
Benefits, and Other Impacts of Chat Use in Transportation Projects,
December 18, 2006. This document is available in the docket established
for this final rule.
3. Economic Impacts
Our findings indicate that this final rule is unlikely to result in
any significant economic impacts to chat suppliers or users in the
short term. However, the potential impact of this rule on chat use over
the next ten to twenty years is undetermined. As a result, it is not
possible to estimate regional or local economic impacts over the long
term.
4. Benefits
This final rule is designed to establish standards intended to
clarify and facilitate the safe use of chat in transportation
applications carried out, in whole or in part, with Federal funds. The
social benefits of this action are related to reduced human health and
environmental damage in the Tri-State Mining District associated with
the timely removal of chat from existing piles. Should there be no
accelerated use of chat in transportation projects above the current
annual rate, human health and environmental benefits may be equivalent
to those expected under a no action baseline.
VI. State Authority
This final rule is promulgated under the authority of RCRA Section
6006. It becomes effective in all relevant States on its effective date
of September 18, 2007; after that date, chat cannot be used in
federally funded transportation projects except in compliance with
today's regulations, regardless of current State law. At the same time,
nothing in this rule restricts the authority of States, under State
law, to establish different requirements or procedures for the use of
chat in federally funded transportation projects. States are neither
expected nor required to pick up this rule or to seek approval or
authorization.
Several provisions of this final rule directly affect States.
Specifically, Section 278.3(b)(2) prohibits the use of chat in Portland
cement concrete or in certain other uses (in Federally funded
transportation projects,) unless approved by EPA or the State
environmental agency, if the State chooses to be the approving entity,
where the use will occur. While the rule would allow either EPA or the
relevant State agency to approve such uses, EPA ordinarily expects to
defer to the State where a potential chat user requests approval. EPA
would only expect to act where the State preferred not to, and in these
cases, it would work in close consultation with the State. In addition,
[[Page 39350]]
Section 278.3(b)(3) provides that EPA or a State, if it chooses to do
so, may approve the use of chat authorized as part of a State or
Federal response action undertaken pursuant to applicable Federal or
State environmental laws. In such cases, EPA expects that the State
would rely on its existing cleanup regulations and procedures in
approving the use.
VII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993),
this action is a ``significant regulatory action.'' This action may
raise novel legal or policy issues [3(f)(4)] arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order. Accordingly, EPA submitted this action to the
Office of Management and Budget (OMB) for review under EO 12866. Any
changes made in response to OMB recommendations have been documented in
the docket for this action.
This rule is projected to result in cost impacts of approximately
$210,000 per year. This figure is significantly below the $100 million
threshold established under part 3(f)(1) of the Order. In addition,
this rule is not expected to adversely affect in a material way the
economy, a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities. Thus, this rule is not considered to be an
economically significant action.
We have prepared an economic assessment in support of this rule.
This document is entitled: Assessment of the Potential Costs, Benefits,
and Other Impacts of Chat Use in Transportation Projects, December 18,
2006. Findings from this document are briefly summarized under Section
V. B above.
B. Paperwork Reduction Act
The information collection requirements in this rule have been
submitted for approval to OMB under the Paperwork Reduction Act, 44
U.S.C. 3501 et seq. via this preamble instead of a separate Information
Collection Request (ICR) document.
The certification, reporting, and record keeping required under
this rule is necessary to ensure the safe use of the product containing
chat. Certification, recordkeeping and reporting requirements under
this rule are not subject to confidentiality restrictions.
Since the burden associated with this rule is insignificant, a
separate ICR is not necessary. The burden is projected to affect a
limited number of entities. These include: three State governments
(Oklahoma, Missouri, Kansas), one Native American tribe (Quapaw Tribe
of Oklahoma), and no more than fifty sand and gravel companies located
in the States of Oklahoma, Missouri, and Kansas (NAICS 4233202).
The burden on respondents is estimated at 3,800 hours per year,
with a total annual cost ranging from $152,000 to $228,000, depending
upon labor costs. Respondents would also need to read and understand
the rule. The burden associated with reviewing the regulation is
estimated at 100 hours, with a total annual cost estimated at $5,000.
The burden on governmental entities is estimated at 380 hours per year,
with total costs ranging from $15,200 to $22,800 per year. These
estimates do not include costs related to a user making a case-by-case
showing to EPA or a State environmental agency that a proposed use is
safe and environmentally protective. Those costs are not included
because the Agency believes that there will be very few such requests
made in any one year. All these estimates are summarized in the Table
below.
Summary of Estimated Burden to Respondents and Government
----------------------------------------------------------------------------------------------------------------
Estimated Estimated
Number of Estimated number of total
Activity hours per cost per affected annual Estimated total
project hour projects burden annual cost
per year (hours)
----------------------------------------------------------------------------------------------------------------
Burden to Respondents:
Certification, Reporting, Record 5.0 $40-$60 760 3,800 $152,000-$228,000
keeping...........................
Burden to Government (affected States):
Certification review and 0.5 40-60 760 380 15,200-22,800
recordkeeping.....................
----------------------------------------------------------------------------------------------------------------
Note: The additional burden to respondents associated with reading and understanding the regulation is estimated
at 100 hours, with a total average annual cost estimated at $5,000.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a governmental entity. This includes the
time needed to review instructions; develop, acquire, install, and
utilize technology and systems for the purposes of collecting,
validating, and verifying information, processing and maintaining
information, and disclosing and providing information; adjust the
existing ways to comply with any previously applicable instructions and
requirements; train personnel to be able to respond to a collection of
information; search data sources; complete and review the collection of
information; and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C.
601 et seq., generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act, or any
other statute. This analysis must be completed unless the agency is
able to certify that the rule will not have a significant economic
impact on a substantial number of small entities. Small entities
include small businesses, small not-for-profit enterprises, and small
governmental jurisdictions.
The RFA provides default definitions for each type of small entity.
Small entities are defined as: (1) A small business as defined by the
Small Business Administration's (SBA) regulations at 13 CFR 121.201;
(2) a small governmental jurisdiction that is a government of a city,
county, town, school district or special district with a
[[Page 39351]]
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of today's final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This section
summarizes whether the rule establishing criteria for the use of chat
in transportation construction projects, carried out, in whole or in
part, with Federal funds, may adversely impact small entities. The
market for both chat and ``virgin'' aggregate in hot mix asphalt
production is mature and dominated by small businesses. In order to
have a significant economic impact on a substantial number of small
businesses, the criteria for chat use would have to cause a significant
decrease in the quantity of chat that is used in highway applications.
Our analysis indicates that the current market area is not likely to
experience any significant change in the demand for chat as a result of
the rule. That is, while many chat processors, distributors, and users
of chat are small businesses, significant economic impacts on a
substantial number of these entities are not expected.
The reader is encouraged to review our regulatory flexibility
screening analysis prepared in support of this determination. This
analysis is incorporated into the ``Assessment'' document, as
referenced above.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written Statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written Statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
This final rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) that may result in expenditures of
$100 million or more for State, local, and tribal governments, in the
aggregate, or the private sector in any one year. The total costs of
this action are estimated at $0.21 million per year.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have Federalism implications.''
``Policies that have Federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This rule does not have Federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. The rule focuses on establishing
criteria for chat use in transportation construction projects, carried
out, in whole or in part, with Federal funds, without affecting the
relationships between Federal and State governments. Thus, Executive
Order 13132 does not apply to this rule.
Although section 6 of Executive Order 13132 does not apply to this
rule, EPA did consult with representatives of State governments in
developing this rule. Representatives from the States of Kansas,
Missouri, and Oklahoma provided valuable input.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175: Consultation and Coordination with Indian
Tribal Governments (65 FR 67249, November 9, 2000), requires EPA to
develop an accountable process to ensure ``meaningful and timely input
by tribal officials in the development of regulatory policies that have
tribal implications.'' ``Policies that have tribal implications'' is
defined in the Executive Order to include regulations that have
substantial direct effects on one or more Indian tribes, on the
relationship between the Federal Government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian tribes.
Under Executive Order 13175, EPA may not, to the extent practicable
and permitted by law, issue a regulation that has tribal implications,
that imposes substantial direct compliance costs for which the Federal
government does not provide funds to pay such costs, and that is not
required by statute, unless EPA consults with tribal officials early in
the process of developing the regulation. Similarly, to the extent
practicable and permitted by law, EPA may not issue a regulation that
has tribal implications and that preempts tribal law unless EPA, among
other things, consults with tribal officials early in the process of
developing the regulation.
EPA has concluded that this rule does not have tribal implications
in that it does not have substantial direct effects as specified in the
Executive Order. In particular, EPA notes that this rule does not
impose substantial direct compliance costs or pre-empt tribal law.
However, the Agency recognizes the significant interest that some
tribes have in this rule. Specifically, some chat piles are located on
Indian country lands. Allotted lands of the Quapaw Tribe of Oklahoma
(Quapaw Tribe) are estimated to contain about half of the 29 chat piles
located within the Picher Mining Field site. This rule is not expected
to significantly change the demand for, and income from, chat use. To
the extent this rule encourages the removal of chat from existing
piles, there is likely to be an improvement to the environment and
human health in these areas.
During the development of this final rule, the Agency carefully
reviewed comments submitted on the proposal by the Quapaw Tribe. Agency
personnel also consulted with representatives of
[[Page 39352]]
the Quapaw Tribe to assure the tribe that their concerns were given due
consideration.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045 ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This final rule is not subject to the Executive Order because it is
not economically significant as defined in Executive Order 12866, and
because the Agency does not have reason to believe the environmental
health or safety risks addressed by this action present a
disproportionate risk to children.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This rule is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)) because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law No. 104-113, 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards. This
rule does not require the application of technical standards (e.g.,
materials specification, sampling, analyses). As such, the National
Technology Transfer and Advancement Act does not pertain to this
action.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. Our analysis indicates that chat piles in the Tri-State
Mining District are, in some cases, located near low-income
populations. In addition, Quapaw allotted lands are located within the
Picher Mining Field. Existing data on the human health and ecological
impacts associated with chat suggests that these populations may be
adversely affected by the presence of the chat piles. Thus, the removal
of the chat from piles for transportation construction applications
that are considered protective of human health and the environment
would likely have a positive impact on these communities.
K. Congressional Review Act
The Congressional Review Act (CRA), 5 U.S.C. 801 et seq., as added
by the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a final rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. Prior to publication of this final rule
in the Federal Register, we will submit all necessary information to
the U.S. Senate, the U.S. House of Representatives, and the Comptroller
General of the United States. Under the CRA, a major rule cannot take
effect until 60 days after it is published in the Federal Register.
This action is not a ``major rule'' as defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Parts 260 and 278
Environmental protection, Chat, Certification and recordkeeping
requirements, Incorporation by reference, Indians--lands, Mine
tailings, Waste.
Dated: June 5, 2007.
Stephen L. Johnson,
Administrator.
0
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:
PART 260--[AMENDED]
0
1. The authority citation for part 260 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 6935,
6937, 6938, 6939, and 6974.
0
2. Section 260.11 is amended by revising the first sentence in
paragraph (a) and paragraph (c)(3)(vii) to read as follows:
Sec. 260.11 References.
(a) When used in parts 260 through 268 and 278 of this chapter, the
following publications are incorporated by reference. * * *
* * * * *
(c) * * *
(3) * * *
(vii) Method 1312 dated September 1994 and in Update III, IBR
approved for part 261, appendix IX and Sec. 278.3(b)(1).
0
3. Part 278 is added to read as follows:
PART 278--CRITERIA FOR THE MANAGEMENT OF GRANULAR MINE TAILINGS
(CHAT) IN ASPHALT CONCRETE AND PORTLAND CEMENT CONCRETE IN
TRANSPORTATION CONSTRUCTION PROJECTS FUNDED IN WHOLE OR IN PART BY
FEDERAL FUNDS
Sec.
278.1 Definitions.
278.2 Applicability.
278.3 Criteria for use of chat in Federally funded transportation
projects.
278.4 Certification and recordkeeping requirements.
Authority: 42 U.S.C. 6961 et seq.
Sec. 278.1 Definitions.
(a) Asphalt concrete--a layer, or combination of layers, composed
of a compacted mixture of an asphalt binder and mineral aggregate.
(b) Chat--waste material that was formed in the course of milling
operations employed to recover lead and zinc from metal-bearing ore
[[Page 39353]]
minerals in the Tri-State Mining District of Southwest Missouri,
Southeast Kansas and Northeast Oklahoma.
(c) Chip seal--a material composed of aggregate placed on top of a
layer of an asphalt or asphaltic liquid binder. The aggregate may be
rolled into the binder.
(d) Cold mix asphalt--refers to an asphalt and aggregate mixture
composed of binders, soaps, or other chemicals which allow its use when
cold
(e) Epoxy seal--refers to the mixture of aggregate in epoxy
binders. Epoxy seals are typically used as an anti-skid surface on
bridge decking
(f) Federal or State response action--State or Federal response
action undertaken pursuant to applicable Federal or State environmental
laws and with consideration of site-specific risk assessments.
(g) Flowable fill--a cementitious slurry consisting of a mixture of
fine aggregate or filler, water, and cementitious materials which is
used primarily as a backfill in lieu of compacted earth.
(h) Granular road base--road base typically constructed by
spreading aggregates in thin layers of 150 mm (6 inches) to 200 mm (8
inches) and compacting each layer by rolling over it with heavy
compaction equipment. The aggregate base layers serve a variety of
purposes, including reducing the stress applied to the sub grade layer
and providing drainage for the pavement structure. The granular sub
base forms the lowest (bottom) layer of the pavement structure and acts
as the principal foundation for the subsequent road profile.
(i) Hot Mix Asphalt--a hot mixture of asphalt binder and size-
graded aggregate, which can be compacted into a uniform dense mass. Hot
mix asphalt also includes hot mix asphalt sub bases and hot mix asphalt
bases.
(j) Microsurfacing--polymer-modified slurry seal.
(k) Portland cement concrete (PCC)--pavements consisting of a PCC
slab that is usually supported by a granular (made of compacted
aggregate) base or sub base.
(l) Pozzolanic--a siliceous material which when combined with
calcium hydroxide in the presence of moisture exhibits cementitious
properties.
(m) Slurry seal--refers to a material composed of emulsified
asphalt, aggregate, and mineral fillers, such as Portland cement or
lime which is applied as a thin coating on top of asphalt concrete or
Portland cement concrete road surfaces.
(n) Stabilized base--a non-asphaltic road base composed of
aggregate mixed with a pozzolanic material which increases the bearing
strength of the material.
(o) Transportation construction projects--these activities relate
to the construction of roads and highways and include bases, sub bases,
road surfaces, bridges, abutments, shoulders, and embankments. They are
not related to any residential use.
(p) Tri-State Mining District--the lead-zinc mining areas of Ottawa
County, Oklahoma, Cherokee County of southeast Kansas and Jasper,
Newton, Lawrence, and Barry Counties of southwest Missouri.
(q) Warm mix asphalt--refers to a mixture of an asphalt binder with
aggregate, paraffin or esterfied wax, and mineral additives that allow
its use at temperatures much lower than hot mix asphalt.
Sec. 278.2 Applicability.
These requirements apply to chat from the Tri-State Mining District
used in transportation construction projects carried out, in whole or
in part, using Federal funds.
Sec. 278.3 Criteria for use of chat in Federally funded
transportation projects.
Chat can be used in transportation construction projects carried
out, in whole or in part, using Federal funds if:
(a) The chat is used in hot, warm or cold mix asphalt, in slurry
seal, microsurfacing, or in epoxy seal; or
(b) The chat is used in Portland cement concrete, granular road
base, flowable fill, stabilized road base or chip seal if, on a case by
case basis either:
(1) Synthetic Precipitation Leaching Procedure (SPLP) tests are
conducted on the proposed material using EPA SW-846 Method 1312,
incorporated by reference in Sec. 260.11 of this chapter, and the
leachate testing results show that concentrations in the leachate do
not exceed the National Primary Drinking Water Standards for lead and
cadmium and the fresh water chronic National Recommended Water Quality
Criterion for zinc of 120 [mu]g/l; or
(2) EPA (or a State environmental Agency, if it chooses to do so)
has determined, based on a site-specific risk assessment and after
notice and opportunity for public comment, that the releases from the
chat mixture in its proposed use will not cause an exceedance of the
National Primary Drinking Water Standards for lead and cadmium in
potential drinking water sources and the fresh water chronic National
Recommended Water Quality Criterion for zinc of 120 [mu]g/l in surface
water; or
(c) The use of chat has been authorized pursuant to a State or
Federal response action.
Sec. 278.4 Certification and recordkeeping requirements.
(a) Certification. For chat used under the jurisdiction of the U.S.
Department of Interior, Bureau of Indian Affairs, the EPA certification
below is not applicable. In other jurisdictions, the acquirer shall:
(1) Submit a signed, written certification to the environmental
regulatory agency in the State where the chat is to be used within 30
days of the date of acquisition. The certification shall contain the
following:
(i) Location of origin of the chat;
(ii) Amount of chat acquired; and
(iii) Certification Statement: I certify under penalty of law that
the chat used in this transportation project will meet EPA criteria
found in Sec. 278.3.
(2) Transfer. If the chat is sold or otherwise transferred to
another party, the acquirer shall provide a copy of the certification
to the new owner of the chat. The new owner shall submit a
certification according to paragraph (a)(1) of this section. The new
certification supersedes all previous certifications.
(3) Recordkeeping. The acquirer of chat, and any other person that
receives the chat, will maintain copies of all of the following for
three years; a copy of the certification following transmittal to the
State department(s) of the environment, and, as appropriate; any SPLP
testing results; or any site-specific risk assessments.
(b) [Reserved]
[FR Doc. E7-13544 Filed 7-17-07; 8:45 am]
BILLING CODE 6560-50-P