[Federal Register: April 4, 2006 (Volume 71, Number 64)]
[Proposed Rules]
[Page 16729-16749]
[DOCID:fr04ap06-14]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 278

[EPA-HQ-RCRA-2006-0097; FRL-8050-8]
RIN 2050-AG27

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA or Agency) is
proposing mandatory criteria for the environmentally protective use of
chat for transportation construction projects carried out in whole or
in part with Federal funds, and a certification requirement. Chat used
in transportation projects must be encapsulated in hot mix asphalt
concrete or Portland cement concrete unless the use of chat is
otherwise authorized by a State or Federal response action undertaken
pursuant to applicable Federal or State environmental laws. Such
response actions are undertaken with consideration of risk assessments
developed in accordance with State and Federal laws, regulations, and
guidance. EPA is also proposing to establish recommended criteria as
guidance on the environmentally protective use of chat for non-
transportation cement and concrete projects. The chat covered by this
proposal is from the lead and zinc mining area of Oklahoma, Kansas and
Missouri, known as the Tri-State Mining District.

DATES: Submit comments on or before May 4, 2006.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
RCRA-2006-0097, by one of the following methods:
     http://www.regulations.gov: Follow the online instructions

for submitting comments.
     E-mail: Comments may be sent by electronic mail (e-mail)
to<EMAIL_ADDRESS>Attention Docket ID No. EPA-HQ-RCRA-2006-0097.
In contrast to EPA's electronic public docket, EPA's e-mail system is
not an ``anonymous access'' system. If you send an e-mail comment
directly to the Docket without going through EPA's electronic public
docket, EPA's e-mail system automatically captures your e-mail address.
E-mail addresses that are automatically captured by EPA's e-mail system
are included as part of the

comment that is placed in the official public docket, and made
available in EPA's electronic public docket.
     Fax: Comments may be faxed to<PHONE_NUMBER>.
     Mail: Send two copies of your comments to Criteria for the
Safe and Environmentally Protective Use of Granular Mine Tailings Known
as Chat, Environmental Protection Agency, Mailcode: 5305T, 1200
Pennsylvania Ave., NW., Washington, DC 20460.
     Hand Delivery: Deliver two copies of your comments to the
Criteria for the Safe and Environmentally Protective Use of Granular
Mine Tailings Known as Chat Docket, EPA/DC, EPA West, Room B102, 1301
Constitution Ave., NW., Washington, DC 20460. Such deliveries are only
accepted during the Docket's normal hours of operation, and special
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-RCRA-
2006-0097. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information

provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site

is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be

automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
 For additional instructions on submitting

comments, go to the SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in the http://www.regulations.gov
 index. Although listed in the index, some

information is not publicly available, e.g., CBI or other information
whose disclosure 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 Criteria for the

Safe and Environmentally Protective Use of Granular Mine Tailings Known
as Chat Docket, EPA/DC, EPA West, Room B102, 1301 Constitution Ave.,
NW., Washington, DC. This Docket Facility is open from 8:30 a.m. to
4:30 p.m., Monday through Friday, excluding legal holidays. The Docket
telephone number is<PHONE_NUMBER>. 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 for the Public Reading Room is (202)
566-1744, and the telephone number for the Criteria for the Safe and
Environmentally Protective Use of Granular Mine Tailings Known as Chat
Docket is<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Stephen Hoffman, Office of Solid Waste
(5306W), U.S. Environmental Protection Agency, Ariel Rios Building,
1200 Pennsylvania Avenue, NW., Washington, DC 20460-0002, telephone
(703) 308-8413, e-mail address<EMAIL_ADDRESS>For more
information on this rulemaking, please visit http://www.epa.gov/epaoswer/other/mining/chat/
.

SUPPLEMENTARY INFORMATION:

I. Does This Action Apply To Me?

    These proposed criteria may affect the following entities:
Aggregate, asphalt, cement, and concrete facilities, likely limited to
the tri-state mining area. Other types of entities not listed could
also be affected. To determine whether your facility, company,
business, organization, etc., is affected by this action, you should
examine the applicability criteria in Section I.B.6 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.

II. What Should I Consider as I Prepare My Comments for EPA?

    1. Tips for Preparing Your Comments. When submitting comments,
remember to:
     Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
     Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
     Describe any assumptions and provide any technical
information and/or data that you used.
     If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
     Provide specific examples to illustrate your concerns, and
suggest alternatives.
     Explain your views as clearly as possible.
     Make sure to submit your comments by the comment period
deadline identified.
    2. Docket Copying Costs. The first 100 copies are free. Thereafter,
the charge for making copies of Docket materials is 15 cents per page.

III. How Should I Submit CBI to the Agency?

    Do not submit information that you consider to be CBI
electronically through http://www.regulations.gov or by e-mail. Send or

deliver information identified as CBI only to the following address:
RCRA CBI Document Control Officer, Office of Solid Waste (5305W), U.S.
EPA, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, Attention
Docket ID No. EPA-HQ-RCRA-2006-0097. You may claim information that you
submit to EPA as CBI by marking any part or all of that information as
CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk
or CD ROM as CBI and then identify electronically within the disk or CD
ROM the specific information that is CBI). Information so marked will
not be disclosed, except in accordance with procedures set forth in 40
CFR Part 2.
    In addition to one complete version of the comment that includes
any information claimed as CBI, a copy of the comment that does not
contain the information claimed as CBI must be submitted for inclusion
in the public docket and EPA's electronic public docket. If you submit
the copy that does not contain CBI on disk or CD ROM, mark the outside
of the disk or CD ROM clearly that it does not contain CBI. Information
not marked as CBI will be included in the public docket and EPA's
electronic public docket without prior

notice. If you have any questions about CBI or the procedures for
claiming CBI, please contact: LaShan Haynes, Office of Solid Waste
(5305W), U.S. Environmental Protection Agency, Ariel Rios Building,
1200 Pennsylvania Avenue, NW., Washington, DC 20460-0002, telephone
(703) 605-0516, e-mail address<EMAIL_ADDRESS>    The contents of the SUPPLEMENTARY INFORMATION are listed in the
following outline:

I. Background Information
    A. What Is the Statutory Authority for This Action?
    B. What Action Is EPA Taking?
    1. What Is Chat?
    2. What Is the Areal Scope for This Action?
    3. Are There Any Current Regulations or Criteria for the
Management or Use of Chat?
    4. Physical and Chemical Characteristics of Chat.
    5. What Are the Environmental and Health Effects Associated with
Pollutants Released From Raw Chat?
    6. Who Is Affected by This Action?
    C. What Was the Process EPA Used in Developing This Action?
II. Summary of the Proposed Rule
    A. What Criteria Are EPA Establishing for the Use of Chat?
    1. Transportation Construction Uses
    a. What is our proposed action?
    b. What is the rationale for the Proposed Rule?
    c. Is the EPA soliciting comments on specific issues?
    2. Non-Transportation Uses--Cement and Concrete Projects
    a. What is our proposed approach?
    b. What is the rationale for the Proposed Rule?
    c. Is the EPA soliciting comments on specific issues?
    B. Relationship of Proposed Criteria to Other State and Federal
Regulations and Guidance
    C. How Does This Proposal Affect Chat Sales From Lands
Administered by the U.S. Bureau of Indian Affairs or Directly from
Tribal Lands?
    D. How Does This Proposal Affect CERCLA Liability, Records of
Decision, and Removal Decisions?
III. Impacts of the Proposed Rule
    A. What Are the Potential Environmental and Public Health
Impacts From the Use of Chat?
    B. What Are the Economic Impacts?
IV. Executive Orders and Laws Addressed in This Action
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act of 1995
    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 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

    For the purposes of this action, the Agency defines the following
terms as follows:
     Encapsulated--incorporated into hot mix asphalt concrete
or Portland cement concrete (PCC).
     Hot mix asphalt--a hot mixture of asphalt binder and size-
graded aggregate, which can be compacted into a uniform dense mass.
     Pozzolanic--a silica and lime containing material which,
in the presence of moisture, forms a strong cement.
     State or Federal remediation action--State or federal
response action undertaken pursuant to applicable federal or state
environmental laws. Such response actions are undertaken with
consideration of risk assessments developed in accordance with state
and or federal laws, regulations, and guidance.
     Raw chat--unmodified lead-zinc ore milling waste.
     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 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 the
residential use of cement or concrete (e.g., concrete counter tops).
     Transportation construction uses \1\ are:
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    \1\ User Guidelines for Waste and By-Product Materials in
Pavement Construction Publication No. FHWA-RD-97-148 April 1998,
U.S. Department of Transportation, Federal Highway Administration.

--Asphalt concrete--pavement consists of a combination of layers, which
include an asphalt surface constructed over an asphalt base and an
asphalt subbase. The entire pavement structure is constructed over the
subgrade. Pavements, bases, and subbases must be constructed using hot
mix asphalt.
--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 subbase. In some cases, the PCC slab may be
overlaid with a layer of asphalt concrete. Uses include bridge
supports, bridge decking, abutments, highway sound barriers, jersey
walls, and non-residential side walks adjacent to highways.
--Flowable fill--refers to 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. 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/in\2\) or less.
--Stabilized base--refers to 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. The class of base and subbase materials
is not meant to include stabilization of soils or aggregates using
asphalt cement or emulsified asphalt.
--Granular bases--are 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 subgrade layer and providing drainage for the
pavement structure. The granular subbase forms the lowest (bottom)
layer of the pavement structure and acts as the principal foundation
for the subsequent road profile.
--Embankment--refers to 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.
     Unencapsulated--material that is not incorporated into hot
mix asphalt concrete or Portland cement concrete.

Abbreviations and Acronyms Used in This Document

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).
EPA--Environmental Protection Agency.
FHWA--Federal Highway Administration.
FR--Federal Register.
ICR--Information Collection Request.
MCL--Maximum Contaminant Level (Safe Drinking Water Act).
NPL--National Priorities List.
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).
SMCL--Secondary Maximum Contaminant Level (Safe Drinking Water Act).
SPLP--Synthetic Precipitation Leaching Procedure (SW 846 Method 1312).
TCLP--Toxicity Characteristic Leaching Procedure (SW 846 Method 1311).
U.S.C.--United States Code.
DOT--United States Department of Transportation.

I. Background Information

A. What Is the Statutory Authority for This Action?

    Through Title VI, Section 6018 of the Safe, Accountable, Flexible,
and Efficient Transportation Equity Act of 2005 (H.R. 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 develop environmentally protective criteria (including an
evaluation of whether to establish a numerical standard for
concentration 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 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 these criteria, Congress directed EPA to consider
the current and previous uses of granular mine tailings as an aggregate
for asphalt and any environmental and public health risks from the
removal, transportation, and use in transportation projects of granular
mine tailings; i.e., chat. The Act also directs EPA to solicit and
consider comments from the public, and to consult with the Secretary of
Transportation and the heads of other Federal agencies in establishing
the criteria.

B. What Action Is EPA Taking?

    In today's action, we are proposing, and requesting comment on,
criteria requiring encapsulation in hot mix asphalt concrete or
Portland cement concrete, for granular mine tailings, known as `chat,'
from the Tri-State lead and zinc mining area of Oklahoma, Kansas and
Missouri, used in transportation construction projects that are carried
out, in whole or in part, using Federal funds. EPA is also proposing
that the requirement of encapsulation in asphalt concrete or Portland
cement concrete would not apply if the use of chat is otherwise
authorized by a State or federal response action undertaken pursuant to
applicable federal or state environmental laws. Such response actions
are undertaken with consideration of risk assessments developed in
accordance with state and federal laws, regulations, and guidance. For
example, unencapsulated uses of chat may be authorized in a State or
federal remediation action. EPA is proposing that these criteria would
apply to the use of chat derived from the Tri-State area, wherever the
use occurs, including outside of the Tri-state area. Section 6006(a)(4)
mandates that transportation construction projects, carried out in
whole or in part, using Federal funds, must comply with these criteria.
    The Agency is also proposing recommended criteria as guidance on
the encapsulation of chat in non-transportation uses, to identify those
uses that EPA believes are environmentally protective. Such uses would
be limited to those where the Agency has reasonable assurances that
such uses inherently limit direct exposure. It should be pointed out
that the Agency has reviewed the literature and conducted interviews
with Oklahoma, Kansas, and Missouri regulatory officials and Tribes and
has determined that there is no evidence that chat is currently being
used in non-transportation construction projects.
1. What Is Chat?
    Chat is the waste material that was formed in the course of milling
operations employed to recover lead and zinc from metal-bearing ore
minerals 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 and concrete are grain size distribution, durability, non-
polishing, and low absorption.
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. 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 today's action, the Agency is proposing the
areal scope to include chat originating from the Tri-State mining
district of Ottawa County, Oklahoma, Cherokee County of southeast
Kansas and Jasper and Newton 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 the Tri-State 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,' which is from 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.
    During close to 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 communications with Kansas, Missouri,
and Oklahoma environmental regulatory agencies and the departments of
transportation and Tribes, government experts confirmed that there is
no real factual distinction between chat derived from these three
areas, and agreed that it would be reasonable to apply today's proposal
to

the areal extent of the Tri-State mining district. Therefore, in
today's action, the Agency is proposing criteria that extends to all
chat generated and currently located in the following counties: Ottawa
county, Oklahoma, Cherokee county, Kansas, and Newton and Jasper
counties in Missouri.
    Given the ambiguity in the term ``Tar Creek Oklahoma Mining
District,'' the Agency is soliciting comment on whether it should limit
the scope of today's action to chat only located in Oklahoma. There is
also some uncertainty regarding the exact boundary of the Tri-State
mining district. The Agency is therefore soliciting comments on whether
additional counties, such as Lawrence and Barry Counties in southwest
Missouri, should be added to the scope.
3. Are There Any Current Regulations or Criteria for the Management or
Use of Chat?
    During the preparation of this proposal, the Agency assessed
existing regulations in Oklahoma, Kansas, and Missouri for hot mix
asphalt plants, and cement plants to determine whether residual chat
wastes from those operations are adequately managed. (See memorandum
entitled: ``Evaluation of State Regulations'' in the docket.) Those
regulations set standards for point and fugitive air emission sources
and also set requirements for water discharges from point and non-point
discharges. Each State also has fugitive dust and point source
particulate emission permitting requirements for both hot mix asphalt
plants and ready mix concrete plants.
     Kansas air quality regulations require a Class II point
source particulate operating permit for hot mix asphalt and ready mix
concrete plants (K.A.R. 28-19-500). Operators must comply with all
applicable air quality regulations whether or not addressed in the
permit. Missouri requires an operating permit for all facilities with
the potential to emit any point source particulate matter of 25 tons
per year or more, or particulate matter with a diameter less than or
equal to 10 micrometers (PM10) in the amount of 10 tons per
year or more (10 CSR 10-6.065). Missouri regulations require operators
to comply with the State's air quality control requirements, including
restrictions on point source particulate emissions beyond the premises
of origin (10 CSR 10-6.170). Oklahoma requires a point source air
pollution control operating permit for new minor facilities (OAC
252:100-7) and all facilities with the potential to emit 100 tons per
year, or more, of any criteria pollutant (which includes particulate
matter), or 10 tons per year of any hazardous air pollutant or 25 tons
per year of any combination of hazardous air pollutants (OAC 252:100-
8). Oklahoma regulations require that operators not exceed ambient air
quality standards (OAC 252:100-29).
     In Oklahoma and Missouri, stormwater runoff is regulated
through stormwater discharge permits (OAC 252:606-5-5, 10 CSR 20-
6.200). Oklahoma's Pollutant Discharge Elimination System Standards
incorporate the National Pollutant Discharge Elimination System (NPDES)
standards. Oklahoma also has a general permit for stationary and mobile
concrete batch plants. In Kansas, stormwater discharges are regulated
under the State's water quality regulations (K.A.R. 28-16). The
regulations prohibit degradation of surface and groundwater and set
effluent limitations for aquatic, livestock, and domestic uses. Kansas
has not finalized its General Permit for Stormwater Discharges
Associated from Industrial Activity; however, facility operators are
required to file a Notice of Intent to discharge under the NPDES
requesting coverage under the State's general water pollution control
permit. Operators are also required to develop and implement a
Stormwater Pollution Prevention plan. Permittees are obligated to
comply with the general permit which sets effluent limitations and
monitoring requirements.
     The Agency also assessed existing regulations in Oklahoma,
Kansas, and Missouri for chat washing facilities to determine whether
residual chat wastes from those operations are adequately managed. The
Agency found that the States do not have regulations specific to chat
washing facilities. However, these facilities are covered under the
States' general fugitive air and general non-point source discharge
regulations. These state general permits require that fugitive dusts
and runoff be controlled in a fashion so that dusts do not leave the
property line or the boundary of the construction activity.
Additionally, the Bureau of Indian Affairs (BIA) is establishing air
and water standards for chat washing facilities for chat originating 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.
     BIA is requiring 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.) BIA also requires that trucks
transporting chat from Tribal lands be covered to prevent blowing dust
from the chat.
     The Oklahoma Department of Environmental Quality (ODEQ)
has determined that the following transportation uses of chat are
inappropriate: Use in residential driveways and use 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, August 2005 \2\). The
ODEQ report also identified the following non-transportation uses of
raw chat that are deemed inappropriate:
---------------------------------------------------------------------------

    \2\ The University of Oklahoma 2005 study entitled, A Laboratory
Study to Optimize the Use of Raw Chat in Hot Mix Asphalt for
Pavement Application, was reviewed internally by Drs. Tom Landers,
Robert Knox, and Joakim Laguros and externally reviewed by various
Oklahoma Department of Environmental Quality personnel. This report
was designed to meet USEPA 1994 Data Quality Objectives which assure
proper study design, sample collection and sample analyses. A
separate Sampling and Analysis Plan was prepared for this effort
which includes a QA/QC plan which was managed by a OU Quality
Assurance Officer. Samples were collected and analyzed in accordance
with EPA methods and lab results were verified by outside
laboratories.

--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 Pb 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 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 uses of chat. The
Region 6 fact sheet is available at http://www.epa.gov/Arkansas/6sf/pdffiles/tar_creek_june_2002_waste.pdf
.

     EPA Region 7 issued a Mine Waste Fact Sheet in 2003 that
identified 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 present a threat
to human health or the environment which 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 present a threat to human health or the environment.
The Region 7 fact sheet is available at http://www.epa.gov/Region7/news_events/factsheets/fs_minewaste_moks_0203.pdf
.

    A copy of these regulations/reports/fact sheets are available in
the Docket to today's rulemaking.
    Based on the review of the States' regulations, EPA concludes that
today's proposal does not need to establish additional criteria to
address any environmental concerns arising from hot mix asphalt and
batch concrete facilities or from chat washing facilities. The Agency
believes that potential fugitive dust emissions and stormwater runoff
from chat piles are adequately addressed by existing State regulations.
Additionally, as stated previously, BIA requires covers on trucks
transporting chat from Tribal lands to prevent blowing of chat dust.
However, the Agency seeks information and comment on the adequacy of
state and BIA requirements and solicits comment on requiring truck
covers for transportation of chat. To address potential leaching to
groundwater and runoff to surface streams, the Agency solicits comment
on whether to require storage to be designed to control run-on and run-
off, leachate to ground water, fugitive dusts, and that chat be stored
in a building, or on a concrete, clay, or synthetic lined pad, or
covered, if storage exceeds 90 days.\3\
---------------------------------------------------------------------------

    \3\ While the Agency is not proposing that chat be sized before
it is encapsulated, we are aware that chat is sized before it is
beneficially used in certain instances. In these instances, we would
expect that any residuals that are generated would be handled in
connection with the remediation plans at the site.
---------------------------------------------------------------------------

    Furthermore, as discussed later in the preamble, the Agency expects
that most chat used will be used within the Tri-state area because of
transportation costs. Thus, the Agency has only evaluated the air and
water rules in Oklahoma, Missouri and Kansas. However, there is nothing
in this rule that would limit its use in these three states. Therefore,
the Agency solicits comment on whether it should adopt general criteria
for the management of chat in today's rule if the chat is managed in
other states or whether other states would have similar types of
controls that Oklahoma, Missouri and Kansas have in place.
    Today's action would require that chat used in Federally funded
transportation projects be encapsulated in hot mix asphalt or concrete,
unless the use is otherwise authorized by a State or federal response
action. Such response actions are undertaken with consideration of risk
assessments developed in accordance with state and federal laws,
regulations, and guidance. This mandatory criteria is more restrictive
than the guidances issued by Regions 6 and 7 since it is the Agency's
current belief that the use of unencapsulated chat should be restricted
to state or federal remediation actions, where a regulatory agency
exerts oversight. This position was taken because the data generally
lead EPA to believe that unencapsulated uses are not protective of
human health and the environment. However, because state and federal
remediation actions are based on site specific determinations that take
into account a wide variety of factors at the site, EPA believes that
such assessments provide sufficient safeguards that would ensure that
any unencapsulated uses of chat authorized through this mechanism would
be protective of human health and the environment.
4. Physical and Chemical Characteristics of Chat
    Some of the important physical properties of chat include hardness,
soundness (durability), gradation, shape and surface texture. Bulk raw
chat includes both large and small particle sizes.
Physical Characteristics
    In a University of Oklahoma (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 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 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%. Raw chat has higher fine
aggregate angularity than 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.
    Cubical shape is a 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 of
approximately 40%. 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%. The minimum requirement for insoluble residue is 40%.
    State DOTs also specify aggregate requirements for hot mix asphalt
and Portland cement concrete. 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 silts and
clays. These finer particles often adhere to larger sand and gravel
particles and can adversely affect the quality of hot mix asphalt
cement and Portland cement concrete. The AASHTO standards for Fine
Aggregate for Bituminous Paving Mixtures (M 29-03) and Fine Aggregate
for Portland Cement Concrete (M 6-03) specify limits for the amount of
aggregate, on a percent mass basis, in hot mix asphalt cement 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 Portland cement concrete. Depending on the designated
grading, 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 5 to
30% for particles less than sieve size 50, while the values
are 7 to 30% in Kansas.
Chemical Characteristics
    Two studies [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; 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,'' ODEQ] provide data on metals concentrations in washed and
unwashed (or raw) chat. The Dames and Moore study indicated 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 lead concentrations from
piles located throughout the Tri-State area had mean total lead
concentrations of 476 to 971 mg/kg. The Site Characterization report
[AATA International, Inc. December 2005; Draft: Remedial Investigation
Report for Tar Creek OU4 RI/FS Program] notes, however, 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 also showed that as chat sizes become smaller, the
metals content increases. The 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,''
noted TCLP testing of all dry sieve sizes greater than 40 do not exceed
5mg/l and could be classified as non-hazardous under RCRA.\4\ This same
study also 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, while TCLP testing of the same
materials have lead concentrations of 1.028 to 3.938 mg/l (also well
below 5mg/l). Therefore, the data show that either dry physical sieving
of raw chat or chat washing generate chat aggregate (greater than sieve
size 40) with considerably lower metals concentrations than raw chat.
---------------------------------------------------------------------------

    \4\ Since chat is a mining waste covered by the Bevill Amendment
to the Solid Waste Disposal Act, it is not subject to the hazardous
waste regulations under RCRA Subtitle C. However, we are using the
TCLP leachate value for lead simply as a comparative measure.
---------------------------------------------------------------------------

5. What Are the Environmental and Health Effects Associated With
Pollutants Released From Raw Chat?
    The Tri-State mining district includes four National Priority List
(NPL) Superfund sites that became contaminated from the mining,
milling, 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 Jasper and Newton Counties in
southwest Missouri. 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.
    Raw chat has caused threats to human health and the environment as
a result of the concentrations of lead present in the chat. Evaluation
of raw chat, noted above, also indicates that this waste in
unencapsulated uses has the potential to leach lead into the
environment at levels which may cause threats to humans (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
.

    Lead toxicity targets the nervous system, both in adults and
children. Long-term exposure of adults can result in decreased
performance of the nervous system. It may also cause weakness in the
fingers, wrists, or ankles. Lead exposure also causes small increases
in blood pressure, particularly in middle-aged and older people and can
cause anemia. Exposure to high lead levels can severely damage the
brain and kidneys in adults or children and ultimately cause death.
(Agency for Toxic Substances and Disease Registry (ATSDR) Fact Sheet
for Lead, September 2005.)
    Recent risk assessments conducted at the Tar Creek NPL site
indicate that cadmium and zinc may not pose a human health risk.
Nevertheless, breathing high levels of cadmium may severely damage the
lungs and can cause death. Eating food or drinking water with high
levels of cadmium may severely irritate the stomach, leading to
vomiting and diarrhea. Long-term exposure to lower levels of cadmium in
air, food, or water may lead to a buildup of cadmium in the kidneys and
possible kidney disease. Other long-term effects are lung damage and
fragile bones. (ATSDR Fact Sheet for Cadmium, June 1999.)
    Zinc in the aquatic environment is of particular importance because
the gills of fish are physically damaged by high concentrations of zinc
(NAS1979). Harmful human health effects from zinc generally begin at
levels from 10-15 times the recommended daily allowance (in the 100 to
250 mg/day range). Long-term exposure may cause anemia, pancreas
damage, and reduced levels of high density lipoprotein cholesterol (the
good form of cholesterol). Breathing large amounts of zinc (as dust or
fumes) may cause a specific short-term disease called metal fume fever.
(ATSDR Fact Sheet for Zinc, September 1995.)
6. Who Is Affected by This Action?
    When promulgated, the proposed criteria will affect users of chat
used in transportation construction projects that are carried out, in
whole or in part, using federal funds. In addition, unencapsulated chat
can be used provided it is part of and otherwise authorized by a State
or federal response action undertaken pursuant to applicable federal or
state environmental laws. Such response actions are undertaken with
consideration of risk assessments developed in accordance with state
and federal laws, regulations, and guidance. The Agency is also
proposing

recommended criteria as guidance that will be applicable to the use of
chat in non-residential non-transportation uses.

C. What Was the Process EPA Used To Develop This Action?

    The Agency initially reviewed information concerning the
environmental effects of the improper placement and disposal of chat
found in the Records of Decision 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 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 the University
of Oklahoma (A Laboratory Study to Optimize the Use of Raw Chat in Hot
Mix Asphalt for Pavement Application: Final Report August 2005). The
Agency interviewed the principal authors of the University of Oklahoma
studies to further evaluate their findings and representatives of the
Departments of Transportation in Oklahoma, Kansas, and Missouri. The
Agency 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
)]. Additionally, 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 states to further identify acceptable
versus unacceptable uses of chat. Moreover, the Agency conducted
interviews with companies currently washing and selling chat and with
asphalt and cement companies which either were currently using or had
used chat. EPA 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. 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 and has met the requirements of
Executive Order 13175. In the spirit of Executive Order 13175, and
consistent with EPA policy to promote communications between EPA and
tribal governments, EPA specifically solicits any additional comment on
this proposed rule from tribal officials.

II. Summary of the Proposed Rule

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

    EPA views chat uses in two basic categories: Unencapsulated and
encapsulated. Unencapsulated uses of chat have contributed to human
health and environmental risks resulting in EPA placing four sites on
the NPL. Additionally, the use of unencapsulated chat in driveways and
as fill material has contributed to lead contamination of soils in
residential property that has resulted in elevated blood lead
concentrations in area children. Therefore, EPA cannot establish
specific criteria for individual unencapsulated uses of chat that are
safe and environmentally protective. However, EPA has established a
criterion that such uses will be safe and environmentally protective if
they are part of, and otherwise authorized by a State or federal
response action undertaken pursuant to applicable federal or state
environmental laws. Such response actions are undertaken with
consideration of risk assessments developed in accordance with state
and federal laws, regulations, and guidance. By contrast, uses that
encapsulate chat limit the release of the constituents of concern.
Therefore, encapsulation of chat forms the basic criterion in today's
proposal.
1. Transportation Construction Uses
    Transportation construction uses of chat are transportation
construction projects funded, wholly or in part, with federal funds.
The Agency has evaluated all the transportation construction uses
defined previously and has concluded that the only transportation
construction uses that are safe and environmentally protective are uses
which encapsulate chat in hot mix asphalt concrete or in Portland
cement concrete.
a. What is our proposed action?
    Today's action, if finalized as proposed, would require that chat
used in transportation construction projects funded, wholly or in part,
with Federal funds be encapsulated in asphalt concrete or Portland
cement concrete, unless the use is authorized by a State or Federal
response action undertaken pursuant to applicable Federal or State
environmental laws.
    In addition, for all chat used in transportation construction
projects funded in whole or in part using Federal funds that is not
subject to the U.S. Department of Interior, Bureau of Indian Affairs
Chat Use Certification requirements described in Section I.B.3. above,
the Agency is proposing a certification requirement similar to that
required by BIA. Specifically, EPA proposes that the acquirer of the
chat would 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.
    EPA proposes that the certification be provided to the
environmental regulatory agency in the State where the chat is
acquired, except for chat acquired on lands administered by the BIA
which is subject to the BIA certification requirements. The Agency also
proposes 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. Finally, the Agency
proposes 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.
    Today's action does not, in itself, modify or limit any existing
state or Federal policies (including EPA Regions 6 and 7 guidances on
chat use), positions, or decisions, nor any existing agreements or
contracts among private or governmental entities. Because this action
is a proposed rulemaking, provisions of the proposal, as well as EPA's
assumptions and rationale leading to them, are subject to public notice
and comment. Therefore, until a final rule governing these materials is
issued, EPA's policies, positions or decisions regarding the use of
chat remain unchanged.
b. What is the rationale for the Proposed Rule?
    The Agency is basing this action on our review of various studies
and data that show that certain encapsulated uses of chat are
reasonably expected to be environmentally safe.
i. Asphalt
    There are a number of factors which lead us to conclude that the
encapsulation of chat into 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
University of Oklahoma (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. This
study confirms an earlier study conducted by the U.S. Army Corps of
Engineers (Tar Creek Superfund Site, Ottawa County, Oklahoma, Final
Summary Report: Chat-Asphalt Paved Road Study U.S. Army Corps of
Engineers--Tulsa District, February 2000).
     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 (http://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 (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).\5\
---------------------------------------------------------------------------

    \5\ 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 to a high of 0.46 mg/l. TCLP average concentrations for
cadmium ranged from < 0.010 to 0.223 mg/l and zinc concentration
averages ranged from 11.3 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 to
2.008 mg/l, while average TCLP cadmium concentrations ranged from
0.011 to 0.087 mg/l and average TCLP zinc concentrations ranged from
19.9 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, and was designed 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 on raw chat asphalt samples is 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 contaminants reaching groundwater are more than
several orders of magnitude lower than the MCLs. Moreover, the Agency
considered in its Report on Potential Risks that it is highly unlikely
that leachate would be ingested directly by humans.
    The 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,'' ODEQ, 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 that used chat as an aggregate removed at the end
of its useful life posed 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. Based on best
professional judgement and review of TCLP versus SPLP results, EPA
believes that there would be a reduction in lead concentrations of
approximately one order of magnitude. 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 therefore concludes that the use of chat in hot mix
asphalt for pavement (which accounts for about 95% of the current chat
usage), base, and sub base is an environmentally protective use. 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.
ii. Concrete
    The Agency also believes that the encapsulation of chat into
Portland cement concrete is safe and environmentally protective:
     An undated University of Oklahoma Surbec-Art Environmental
study \6\ and a 2000 University of Oklahoma Study \7\ conducted the
only known assessments of the total metals and TCLP on concrete
matrices mixed with raw chat. The 2000 OU results are also presented in
the 2005 OU study. Following are the results from those studies.
---------------------------------------------------------------------------

    \6\ ``Preliminary Report on the Findings of Environmental and
Engineering Tests Performed on Mine Residual Materials from Ottawa
County, Oklahoma.''
    \7\ ``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.................................      30 (R)        0.09      35 (R)        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
Portland cement concrete, 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, July 1995. One of those technologies is
stabilization, such as encapsulation in a cement matrix, to reduce the
mobility of the metal in the waste. 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).
     Although chat was not specifically discussed in the BDAT
Background Documents, the data and information contained in the
technical background documents cited in the previous bullet leads us to
believe that chat added to concrete will bind a significant amount of
metals and therefore limit the leaching potential of chat concrete.
While limited leaching of metals from concrete may still occur, we
believe metals in chat can be encapsulated in an environmentally
protective manner for the following reasons:

--As shown in the table above, TCLP levels from raw chat contained in
concrete, as measured in the undated and 2000 OU studies, for lead
(0.17 to 1.0 mg/l) and cadmium (0.01 to 0.12 mg/l) are within the TCLP
levels from the 2005 OU study for weathered (milled) hot mix asphalt
(< 0.005 to 2.008 mg/l for lead and < 0.010 to 0.223 mg/l for cadmium).
--The Agency does not have SPLP data for concrete. In hot mix asphalt,
the SPLP concentrations for both lead and cadmium were < 0.01 mg/l,
significantly below the TCLP levels for the same constituents. Should
additional environmental release studies of chat used in concrete be
performed, use of SPLP would be preferred over TCLP, since SPLP would
better replicate the environmental conditions of the chat reuse.
--Because the Agency believes that it is highly unlikely that the
leachate would be directly ingested by humans, applying a dilution and
attenuation factor would lead to even lower metals concentrations.

     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 contaminants reaching groundwater are more than
several orders of magnitude lower than the MCLs. Moreover, the Agency
considered in its Report on Potential Risks that it is highly unlikely
that leachate would be ingested directly by humans.
     The Agency evaluated highway design specifications; i.e.,
layering of compacted material (Apul) and the movement of water through
concrete (hydraulic conductivity),\8\ and concludes that such designs
in general retard the movement of rainwater through concrete and into
groundwater.
---------------------------------------------------------------------------

    \8\ According to the Portland Cement Association, the hydraulic
conductivity of a typical Portland cement concrete is 1 x
10-12 cm/sec.
---------------------------------------------------------------------------

     The University of Oklahoma (OU) 2005 study summarized
previous uses of raw chat in concrete and also noted that in the past
chat had been used for concrete pavement. During interviews with the
Ottawa County Roads Department (Memo to File: Interviews with the
Ottawa County, Oklahoma Roads Department found in the docket to today's
action), it was noted that chat had been used in concrete pavement,
although that use had stopped at least 15 years ago. The discontinuance
of the use of chat in concrete in the Tri-State area is likely due to
the fact that cheaper sand is locally available, that chat used as a
silica substitute is difficult to grind, and that such use may have
resulted in the past with poorer quality material.
iii. Unencapsulated Uses of Chat
    As already noted, the Agency is concerned that unencapsulated uses
of chat allow leachate to form which may contain metals concentrations
that could cause environmental threats. Unencapsulated chat has
contributed to the contamination at four NPL sites, and use of chat in
driveways and as fill material has contributed to lead contamination of
soils in residential property which resulted in elevated blood lead
concentrations in area children (See Tri-State Mining District RODs
which are available in the docket to today's action). EPA expects that
using this material in an unencapsulated manner would generally pose
unacceptable risks. (See Section III. A. below, ``What Are the
Environmental and Health Impacts?'') One exception is use of
unencapsulated chat that is otherwise authorized by a State or Federal
response action undertaken pursuant to applicable Federal or State
environmental laws. Such remedial actions are undertaken after site
specific risk evaluations are completed 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 within the Tar Creek Superfund
Site boundary and, as a result of a site specific assessment,
determined that such use, compared to other alternatives, was a more
protective action (USEPA Region 7, Engineering/Cost Analysis--Highway
71, Jasper County, Missouri, August 2000).
    In today's action, EPA is also proposing a certification
requirement because the Agency believes it is important that the
acquirer of chat that is not part of demolished asphalt or concrete
certify that the chat will be used in accordance with authorized uses
which are environmentally protective. This certification will assure
that chat is not used in a manner likely to cause substantial
environmental contamination that would necessitate federal or state
clean up actions. The Agency is proposing this action to be consistent
with the BIA Chat Use Certification requirements.
c. Is the EPA soliciting comments on specific issues?
    The Agency is soliciting comments on all aspects of today's
proposal. In particular:
     The Agency has defined the term ``Tar Creek Mining
District'' to include chat piles located in the Tri-State Mining
District--that is, Ottawa County, Oklahoma, Cherokee County in
Southeast Kansas and Jasper and Newton Counties in Southwest Missouri.
The Agency is soliciting comment on whether it should limit the scope
of today's action to chat currently located in Oklahoma. Also, the
Agency is soliciting comment on whether additional counties, such as
Lawrence and Barry Counties in southwest Missouri, should be added to
the scope.
     In today's notice, EPA has tentatively concluded that the
use of chat in concrete (both hot mix asphalt concrete and Portland
cement concrete) in transportation projects is environmentally
protective. EPA solicits comments on whether users of chat encapsulated
concrete should be required to conduct leach testing prior to use. If
the Agency were to require leach testing, the Agency solicits comments
on whether the TCLP or SPLP test method, as described in Methods 1311
and 1312 of EPA's SW-846 analytical methods, or some other leach
testing procedure should be used.
     If the Agency were to require leachate testing, the Agency
would need to establish specific criteria. 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. In addressing this
issue, commenters will need to provide the rationale for any levels
suggested.
     Additionally, the Agency could develop leach test criteria
with the use of a Dilution and Attenuation Factor (DAF). Test results
using DAFs could reflect how contaminant concentrations may change as
they move through the environment. If commenters believe that a DAF
should be applied, the Agency requests comment on what DAF should be
applied and what is the rationale for its use.
     While the Agency is not proposing to require that chat be
sized before it is encapsulated, the Agency is soliciting comment on
whether chat should be limited to particles that exceed a specific
sieve size (via physical or washing methods). Based on available data,
particles finer than sieve size 40 in unencapsulated raw chat
tend to have a TCLP for lead of greater than 5mg/l, while larger
particles in the raw chat tend to have a TCLP for lead of less than 5
mg/l. By establishing a minimum size of chat that can be used, the
Agency would possibly be limiting the amount of metals in the chat, as
well as the leaching potential of these uses. Specifically, the Agency
seeks comment on whether the binding properties of the encapsulation
are sufficient to prevent undue environmental risks associated with
leaching, whether dust control practices associated with demolition
adequately address the higher metal concentrations of the fine
particulates, and whether subsequent recycling or disposal options
could pose undue risks due to the higher metal levels in the fine
particles. While it is the goal of the Agency to balance the beneficial
use and reuse of materials, while also limiting the introduction back
into the environment of materials with high metals loadings, we seek
comment on whether it is appropriate to require the sizing of chat to
limit the addition of lead bearing materials into use and their related
exposure in the environment. There are a series of factors which should
be considered in submitting comments on these issues:

--As identified in consultation with the Quapaw tribe, the tests
conducted by the University of Oklahoma on asphalt containing ``pile
run'' or raw chat, did not show problematic leaching levels. AASHTO
standards for aggregate in asphalt limit fines less than sieve size
50 to 7 to 60%, depending on the grading. There are, however,
no direct measurements on the use of raw chat for 100% of the aggregate
in asphalt--in the University of Oklahoma study, chat comprised 30 to
80% of the aggregate.
--The limited data that exists for concrete involves raw chat, but
there is no direct data on the use of chat for cement manufacturing.
--With regard to demolition, the fugitive dust controls are a routine
requirement for demolition projects.
--For post demolition recycling and disposal, approximately 90% of the
asphalt is recycled into new asphalt, while 70% of concrete from
transportation projects is recycled as fill or base. Recycling of
concrete from residential buildings is about 60% versus 88% for
commercial buildings.
--Requiring sizing would result in the generation of some chat fines,
which would not be used in concrete or asphalt and thus, would be a
waste stream that would need to be managed. Based on the review of the
States' regulations, however, EPA concludes that additional criteria
would not be needed to address any environmental concerns arising from
the handling and disposal of fines generated by the sizing of chat.

     Today's criterion does not include the use of chat in cold
mix asphalt (CMA) or slurry seals. It is the Agency's understanding
that CMA or slurry seals are typically used for temporary repairs. At
least one State, Kansas, has specifications for CMA using chat;
however, EPA has no information that chat is being used in CMA or
slurry seals. The Agency solicits comments on the following: (1)
Whether chat is being used in cold mix asphalt or slurry seals and, (2)
whether the existing data would support the inclusion of chat used in
cold mix asphalt or slurry seals in the criteria proposed today. The
Agency also solicits data on the ability of CMA or slurry seals to bind
metals.
     Another possible use of chat is in a stabilized road base.
A stabilized base has the advantage of using a pozzolanic material
which should reduce the mobility of the metals. However, the stabilized
road base could use cement in amounts 4 to 6 percent by weight which is
less than that used in concrete. While the nature of this binding may
not be as great as concrete, the fact that the stabilized base is
covered by an asphalt concrete or Portland cement concrete road surface
reduces the level of leachate. Capillary effects along the road's edge
will still cause considerable wetting of the base, and EPA solicits
comment on whether the combination of stabilization and coverage by the
road surface adequately limits metals releases. EPA therefore solicits
comment on whether the use of chat as stabilized road base would be an
environmentally protective use of chat and whether this use should be
allowed in federally funded transportation projects.
     Material like chat is also sometimes used as flowable
fill. While flowable fill involves the use of a pozzolanic material,
the binding may not be as sound as that for concrete. Like a stabilized
road base, flowable fill could use cement in amounts as little as 3 to
5 percent by weight. The EPA solicits comments on the degree to which
flowable fill matches the binding characteristics of concrete or
stabilization practices associated with waste management, and whether
use of flowable fill would be appropriate for chat. If use as flowable
fill were allowed, should leachate testing and compliance with some
standard (e.g., MCLs) (with or without consideration of dilution and
attenuation) be required?
     Today's criterion does not include the use of
unencapsulated chat as road bed beneath asphalt or concrete pavement.
Use of unencapsulated chat as a free-draining subbase capped with an
asphalt concrete or Portland cement concrete pavement may be an
environmentally protective use. However, the Agency has no data on
whether use of unencapsulated chat in this manner would prevent
leaching of metals found in chat into the environment. Therefore, the
Agency requests comments and supporting data on whether the use of
unencapsulated chat as road bed, capped with an asphalt concrete or
Portland cement concrete pavement, would be an environmentally
protective use.
     In today's action, EPA is proposing that certification be
provided to the environmental agency in the State where the chat is
acquired. The Agency is soliciting comments on whether certification
should also be provided to the environmental agency in the State where
the material is ultimately used.
     Today's proposal allows the use of unencapsulated chat
where it has been authorized by a State or Federal response action
undertaken pursuant to applicable Federal or State environmental laws.
It has also been suggested that unencapsulated uses be allowed if data
are presented to EPA that demonstrate that the proposed use will be
environmentally benign. EPA takes comment on this option, as well as
the possibility that this function be deferred to the relevant state
authority.

2. Non-Transportation Uses--Cement and Concrete Projects
    Non-transportation uses of chat include its use as a raw material
in the manufacture of cement, and as an aggregate in Portland cement
concrete. Based on its analysis on the possible use of chat in concrete
in roads (discussed above), EPA believes that health and environmental
concerns would be minimal for chat used in concrete in non-
transportation, non-residential construction projects and for
structural purposes.
a. What is our proposed approach?
    The Agency is proposing to establish a criterion that would
recommend the encapsulation of chat into cement and concrete for non-
transportation, non-residential uses, as defined above, such as for
non-residential structural uses limited to weight bearing purposes and
for commercial/industrial parking and sidewalk areas.
b. What is the rationale for the Proposed Rule?
    In the past, chat had 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
today's action), 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 non-transportation Portland cement concrete
projects.\9\
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    \9\ The Agency is aware of proposals to use unencapsulated chat
as mine backfill. The Agency has conducted a study to determine if
chat mixed with cement or concrete is being used for this purpose
and found that it is not. See Memo to File: Mine backfill.
---------------------------------------------------------------------------

    Pursuant to section 6006(a)(1), the Agency reviewed the possible
use of chat as aggregate in concrete, and as it did in its
transportation evaluations, concludes that certain uses of chat in
concrete are environmentally protective. The criterion being considered
would recommend that chat be encapsulated in concrete and recommend
that only those uses be allowed where exposure to chat concrete would
be limited to workers installing and maintaining projects. To meet this
goal, the Agency is recommending that non-transportation, non-
residential cement and concrete projects be limited to weight bearing
structural uses such as non-residential foundations, slabs, and
concrete wall panels. Other uses include non-residential retaining
walls, commercial/industrial parking and sidewalk areas. Uses would not
include any use of cement or concrete inside or adjacent to residences
(e.g, concrete countertops, sidewalks, driveways). This guidance is
somewhat more restrictive than current guidance issued by Regions 6 and
7. The Agency is taking this more restrictive approach in limiting its
criterion since there is little information the Agency can use to
determine if residential uses of chat cement or concrete are
environmentally protective. Depending on what the Agency finally
promulgates and issues as guidance, the Agency may modify those Fact
Sheets. However, EPA solicits data to demonstrate this possible use
would be environmentally benign.
    The Agency has reviewed OSHA standards governing worker health and
safety related to the construction and demolition of non-residential
non-transportation uses of cement and concrete and concludes that
existing standards adequately protect those workers from dusts and
metals found in chat. It should be noted that when chat is used as an
aggregate in concrete, worker exposures would be limited since the
metals would already be bound.
c. Is the EPA soliciting comments on specific issues?
    The Agency is soliciting comments on all aspects of today's
proposal. In particular:
     The Agency solicits comments on whether the available
information supports the establishment of criteria in determining that
the use of chat contained in cement or concrete in non-residential,
non-transportation uses is environmentally protective.
     Today's action would recommend that uses be limited to
non-residential non-transportation uses. The Agency is soliciting
comment on whether the data support expanding the criteria to include
some structural residential uses. Today's action does not include the
use of chat in non-structural residential uses; e.g., concrete
countertops, sidewalks, and driveways. The Agency also solicits
comments and supporting data on whether non-structural residential uses
would be environmentally protective.
     Today's action does not require non-transportation users
of encapsulated chat in cement or Portland cement concrete to conduct
leach testing prior to use. The Agency is, however, soliciting comments
on whether leachate testing should be conducted prior to each
encapsulated use. If the Agency were to recommend leach testing, the
Agency solicits comments on whether the TCLP or SPLP test method, as
described in Methods 1311 and 1312 of EPA's SW-846 analytical methods,
or some other leach testing procedure would be appropriate.
     If the Agency were to require leachate testing, the Agency
would need to establish specific criteria, either with or without the
use of a Dilution and Attenuation Factor (DAF). Test results using DAFs
could reflect how contaminant concentrations may change as they move
through the environment. The Agency solicits comment on what the
criteria would be, whether or not a DAF should be applied, and what the
rationale would be for their use.
     The Agency solicits comment on whether chat users should
provide certification to the environmental agency in the state(s) where
the material is acquired. The agency is further soliciting comment on
whether the certification should also be provided to the environmental
agency in the state(s) where the chat is ultimately used.
B. Relationship of Proposed Criteria to Other State, Tribal and 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 proposal would not
change that--that is, EPA is not setting different specifications and
is only informing users that other agencies already have established
specifications and engineering testing requirements that must continue
to be met.\10\
---------------------------------------------------------------------------

    \10\ The Agency also explored whether the use of chat in
concrete had the potential to cause alkali-silica reactions. The
Agency has reviewed studies on the use of zinc slags in concrete
(A.M. Dunster, et al., 2005) which indicate that zinc slags with
zinc concentrations from 90,000 to 120,000 ppm have successfully
been incorporated in concrete without detrimental engineering
effects.
---------------------------------------------------------------------------

    The FHWA established minimum standards at 23 CFR 626 for Highways
(including references to the AASHTO Standard Specifications for
Transportation Materials and Methods

of Sampling and Testing) and at 23 CFR 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).\11\
---------------------------------------------------------------------------

    \11\ 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://

http://www.ksdot.org/burMatrRes/specification/default.asp), and Missouri

(http://www.modot.state.mo.us/ business/standards-- and--specs/

highwayspecs.htm).
---------------------------------------------------------------------------

    ASTM Standard C-33 restricts the amount of chert that may be mixed
into Portland cement concrete 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. Therefore, ASTM Standard C-33 would not be applicable to the
use of chat in Portland cement concrete.
    The Agency also considered potential risks posed by the release of
fine particles, principally into the air, during road resurfacing and
replacement operations. Milling (grinding prior to resurfacing) and
demolition of chat-containing asphalt and Portland cement may result in
the release of fine chat particles. The Agency considered two
scenarios: (1) Storage or disposal of asphalt or Portland cement
concrete containing chat in piles from milling and demolition
activities and, (2) a continuous milling, remixing, and resurfacing
process. Under the first scenario, the potential risks would be posed
by leachate from piles. As noted previously, based on leach tests of
asphalt containing chat removed from the Will Rogers Turnpike, EPA does
not believe storage in piles or disposal of chat asphalt should present
risks to the environment. EPA concludes that it is not necessary to
propose additional standards to address this issue. Under both
scenarios, 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 III. A). The Occupational Safety
and Health Administration has 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 III. A. below, ``What Are the Environmental and
Health Impacts?'') and concludes that it is not necessary to propose
additional standards to address this issue.
    Oklahoma, Kansas, and Missouri currently regulates chat washing
facilities to assure that those operations do not further contaminate
the environment (Memo to File: Evaluation of Chat Washing, found in the
docket to this action). These regulations set standards for point and
fugitive air emissions, as well as for point and non-point water
discharges. In addition, these regulations specifically address fine
grained wastes (fines) from these operations. The Agency's review of
these regulations leads us to conclude that today's proposal does not
need to address these activities, since existing state regulations are
deemed adequate.
    Oklahoma, Kansas, and Missouri also currently regulates hot mix
asphalt plant operations. The Agency reviewed these regulations to
determine if the storage of chat (and potential run-on/runoff and dust
impacts) at such facilities are covered by those regulations. These
regulations set standards for point and fugitive air emissions, as well
as standards for point and non-point water discharges. The Agency
concludes that the existing state regulations are adequate and,
consequently, today's proposal does not need to address them.
    USEPA Regions 6 and 7 have issued guidance on chat use (Region 6
Tar Creek Mining Waste Fact Sheet, June 28, 2002 and Region 7 Mine
Waste Fact Sheet, 2003). The Region 6 and 7 guidances note that
acceptable uses of chat in transportation include applications that
bind (encapsulate) the chat into a durable product (asphalt and
concrete) and applications that use chat as a sub-base or base material
for highways (asphalt and concrete). This proposal establishes criteria
for chat used in transportation construction projects funded, wholly or
in part, with federal funds and proposes recommended criteria as
guidance for non-transportation uses of chat. As noted earlier in the
preamble, the proposed mandatory criteria and guidance in today's
notice is more restrictive than the guidance issued by Regions 6 and 7.
Depending on what the Agency finally promulgates and issues as
guidance, the Agency may modify those Fact Sheets.

C. How Does This Proposal Affect Chat Sales From Lands Administered by
the U.S. Bureau of Indian Affairs or Directly From Tribal Lands?

    The Bureau of Indian Affairs (BIA) signed a Memorandum of Agreement
with EPA Region 6 in February 2005 which is designed to lead to the
renewed sale of chat from tribal lands and from lands administered by
the BIA. EPA's proposal does not prevent chat sales, nor is it intended
to delay such sales. Today's proposal is consistent with BIA chat sales
requirements.
    The draft sales agreement prepared by BIA, a copy of which is
available in the Docket for today's proposal, includes an end use
certification which requires buyers of chat to certify that when they
sell their chat into commerce, the buyer must use the chat in a fashion
which is deemed acceptable by EPA. This proposal is consistent with the
end use provision in BIA's model contract, since this proposal will
require a similar end use certification for the use of chat, regardless
of its source (tribal or private).

D. How Does This Proposal Affect CERCLA Liability, Records of Decision,
and Removal Decisions?

    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 a cleanup under CERCLA or a State response action.
    In today's action, EPA establishes criteria for chat use in
federally funded transportation projects. However, such federal funding
does not include compensation for removal and disposal of chat or other
hazardous substances undertaken in accordance with State or Federal
response actions.
    Finally, nothing in this proposal shall affect existing Records of
Decision issued at EPA National Priorities List sites or Removal
Decisions associated with chat nor does the proposal affect the
determination of liability as noted in CERCLA Sections 104, 106, and
107 or State corrective action decisions.

III. Impacts of the Proposed Rule

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

    As noted above, two types of uses of chat, transportation uses and
non-transportation uses, are covered by today's action. This section
addresses potential risks and economic impacts associated with those
uses, as well as end of life issues.
    The Agency evaluated existing information related to the usage of
chat throughout its life cycle in order to identify likely exposure
pathways and receptors associated with various scenarios and to
characterize the environmental and public health effects that may
result from the release of metals from the use of chat in
transportation construction projects. The types of information we
considered include: total metal concentrations in raw chat and road
construction products containing chat; leachable concentrations for
metals in raw chat and road construction products containing chat;
environmental sampling data for metals in the proximity of historical
chat storage and usage sites; and existing evaluations of human health
and wildlife impacts associated with metal contamination likely
associated with mining activities. The goals of this effort were to
determine if there are sufficient data: (1) To characterize the
environmental releases (potential or demonstrated) of metals from chat
during use applications; and (2) to evaluate the environmental and
public health impacts (potential or demonstrated) from the
transportation, storage, and use of chat in transportation
applications.
1. Transportation Uses and Demolition
    As previously described in the preamble, chat can be managed or
used directly in the environment or can be encapsulated before it is
managed or used in the environment. Examples of unacceptable uses that
we identified for unencapsulated chat in transportation applications
are: gravel for county roads and driveways, and fill material.
Transportation-related uses of encapsulated chat are primarily as
aggregate for hot mix asphalt in asphalt surface mix, and for use as an
aggregate in stabilized base for roadway construction. Chat was found
to be allowed as an aggregate in cold mix asphalt for microsurfacing
applications to an existing pavement surface; however, the Agency has
no evidence that chat is used in this manner.
    For encapsulated chat, we found that the reports and study data on
health and environmental effects focused almost exclusively on
evaluating the leaching potential for various mix formulations used to
develop asphalt products containing chat (e.g., hot mix asphalt). Data
were available on the total metal concentrations and leaching
characteristics of (1) Asphalt surface and base mix formulations prior
to roadway application, (2) asphalt and stabilized base samples from
roads currently in use, (3) spent asphalt samples that were broken up
and stored in piles, and (4) milled asphalt samples intended to
simulate weathering. Metals appear to be tightly bound in the
encapsulated matrix when the total metals concentrations in asphalt
samples are compared to corresponding TCLP and SPLP leachate
concentrations. In particular, for asphalt surface mix and stabilized
road base uses for all 4 categories above, 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.\12\ 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
15. As we have noted earlier, however, we believe that use of the TCLP
in evaluating the leaching potential of encapsulated uses of chat in
transportation projects is inappropriate since it does not accurately
reflect the environmental conditions of the management scenario.
Rather, we believe the SPLP is a more representative 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. As a
result, based on the available data, we conclude that the use of chat
in asphalt is likely to pose a negligible health risk through the
groundwater pathway.
---------------------------------------------------------------------------

    \12\ 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 chat use in asphalt is occurring.
---------------------------------------------------------------------------

    On the other hand, limited leaching data were available for
encapsulated chat in Portland cement concrete (TCLP only) and no data
were found for flowable fill. For Portland cement concrete, the TCLP
concentrations for lead and cadmium were below the TC limits yet above
the MCLs. The concentrations for zinc were below the SMCL. However, as
noted above, we believe that using the TCLP to evaluate the potential
for environmental release is inappropriate. While no data were
identified presenting the SPLP concentrations for chat encapsulated in
Portland cement concrete or flowable fill, we believe the potential
groundwater impacts from the use of chat in Portland cement concrete
would be negligible as the metals binding capacity of Portland cement
concrete is expected to be similar to asphalt because of similar
pozzolanic characteristics.
    Environmental quality information presented in several studies
indicated that damages to streams had been documented for the Tri-State
Mining Area; however, these studies were not specific to 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) show that for zinc, when detected, concentrations 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 lead or cadmium in any leachate using the
SPLP method. While the study's detection limits for lead and cadmium
were at least an order of magnitude above EPA's National Recommended
Water Quality for the protection of aquatic life, we do not believe
this to be a concern. The environmental conditions would need to be
extremely favorable for the metals to reach surface waters at levels of
concern either through run-off to nearby soils which would have
subsequent attenuation before reaching surface waters, or through
additional attenuation and dilution in groundwater before reaching
nearby receiving waters.
    The transportation and storage of chat to be used as road
construction aggregate could result in local environmental releases to
various media (air, groundwater, soil). Agency review of existing
regulations indicate that those transport and storage concerns are
adequately addressed by existing State regulations.
    The milling and demolition of chat-containing asphalt and Portland
cement concrete would likely involve emissions

of fine chat particles, with subsequent dispersion and deposition to
nearby soils. These emissions would occur episodically and infrequently
(that is, at the end of the useful life of the pavement which could be
on the order of 15 years). The Agency believes that, with regard to
worker safety, these potential sources of releases are adequately
regulated by the States or by OSHA. However, the potential exists for
these fine chat particles to be dispersed into populated areas. As
these emissions would be infrequent, the Agency believes that the
potential exposure to a local population would be minimal.
    In particular, during the demolition and resurfacing of asphalt
road surfaces, it is often the practice to score, cut, and crush the
old surface layer so that it may be fed directly into mobile equipment
that heats this material (or mixes it with fresh asphalt) and
immediately lay down a new asphalt surface. Any fugitive dust emissions
from this process would occur episodically and infrequently (that is,
at the end of the useful life of the pavement which could be on the
order of 15 years). Oklahoma DOT regulations limit the amount of fine
aggregate in hot mix asphalt because they have adopted the AASHTO
aggregate asphalt standard. Aggregate makes up approximately 80 to 90
percent of HMA by weight. The OU (2005) study show that the total
concentration of lead in surface mix asphalt blends is approximately
200 to 400 mg/kg. The percent of chat aggregate in the blends were 40
to 80 percent (by weight). EPA has found no emissions data during
demolition and resurfacing of asphalt roads to evaluate potential
exposures to workers. While the Agency does not believe this potential
exposure poses a significant risk, we are asking for information on
whether such dusts may present risks and seek comment on how to address
such risks.
    Road surfaces using a chat concrete mixture may also be demolished
at the end of their useful life (like asphalt, the useful life could be
on the order of 15 years). The demolition of road surfaces containing
chat would likely involve low emissions of encapsulated 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 above, 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. While the Agency also
does not believe that exposure to chat concrete road demolition
presents a significant risk, we are soliciting comment on whether this
rule should require some form of notification to demolition workers
since they may not be aware that chat had been used in the concrete.
2. Non-Transportation Uses and Demolition
    Dusts during the demolition of nonresidential buildings which used
chat concrete was also considered by the Agency.\13\ For today's
action, the Agency is assuming a use life for buildings of 30 years
(based on the Internal Revenue Service allowable straight-line
depreciation for non-residential real property of 31.5 years).
Demolition therefore will likely occur only once every 30 years. The
Agency determined that demolition practices, as noted by the National
Association of Demolition Contractors, only 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 (see above) in Oklahoma, Missouri, and Kansas and found
that building demolition requires a general fugitive dust permit that
mandates that demolition related dusts must be contained within the
property line (most often through the use of water sprays). Based on
this information, the Agency concludes that dusts from chat concrete
demolition of nonresidential buildings is not likely to present a
significant threat to human health.
---------------------------------------------------------------------------

    \13\ The American National Standards Institute ANSI A10.6-1983
American National Standard for Demolition Operations Safety
Requirements recommends that no worker shall be permitted in any
area that can be adversely affected when demolition operations are
being performed.
---------------------------------------------------------------------------

    Even if chat metal levels do not trigger OSHA requirements, 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.
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
(PEL) 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 (TWA) for up to a 10-hour
workday during a 40-hour workweek. Although the Agency has no reason to
believe that chat in concrete 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 to metals found in chat.
    As noted earlier, the Agency concludes that dust generated during
the demolition of chat concrete buildings or in the demolition of
asphalt and Portland cement concrete pavement that contains chat would
largely be limited to the immediate project area. The Agency has
reached this conclusion based on its review (as noted above) of the
Oklahoma, Missouri, and Kansas fugitive dust and particulate matter
regulations, which mandate that demolition dusts be controlled within
project sites. Therefore, if any risks exist due to exposure to
demolition dusts from asphalt or Portland cement concrete that contains
chat, they would most likely be limited to demolition workers at the
site. The Occupational Safety and Health Administration (OSHA) has
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 and today's proposal does not
include any additional worker health and safety requirements. The
Agency is, however, seeking comment on whether reliance on OSHA/NIOSH
standards are sufficient and seeks information on possible alternative
approaches, if found necessary. The Agency is also seeking comment and
information on the adequacy of existing controls for the disposal of
demolition debris containing

chat or whether the Agency should establish additional criteria.
    A more complete discussion of the Agency's evaluation of existing
environmental and public health information associated with the use of
chat is available in ``Report on Potential Risks Associated with the
Use of Chat from Tri-State Mining Area in Transportation Projects.''
This document can be found in the RCRA docket established for today's
proposed rulemaking.

B. What Are the Economic Impacts?

    This Part summarizes projected cost impacts, economic impacts, and
benefits associated with today's proposal. 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 today's
proposed action.
1. Chat Market Profile
    Chat is a byproduct of mining and milling operations that has been
exempted from regulation as a ``hazardous waste'' under RCRA.\14\
However, given the varying concentrations of lead (a hazardous
substance) present in chat, and the risks posed to human health and the
environment, it is subject to CERCLA regulations. Currently, chat in
the Tri-State mining area 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 area is roughly 100 million tons. A relatively small percentage
of this total is currently used annually in road building or other
beneficial use projects.
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    \14\ 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
distribute chat to area highway departments, primarily for use as an
aggregate in asphalt. Approximately 95 percent of all current chat use
is for aggregate in asphalt. A wide range of different projects
comprise the remaining 5 percent.\15\ We have no evidence there is any
current use of chat in cement or concrete.
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    \15\ Current non-transportation uses of chat include: component
in non-skid surfaces, sand blasting material, and waste water
treatment filters.
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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 ready-use 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 washing, 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 washing, even though such operations are not
included as part of the proposal.
    A limited number of small companies act as brokers, processors and
distributors (washers and haulers) of the chat in the Tri-State area.
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 in areas
surrounding the Superfund sites are low. We are not able to determine
what, if any, impact the proposed rule may have on chat demand for use
in asphalt. Significant chat use in other applications, such as
concrete, does not appear to be economically viable at this time.
2. Specification of the Analytical Baseline
    Proper baseline specification is an important step to the accurate
assessment of incremental costs, benefits, and other economic impacts
associated with today's proposal. The baseline essentially describes
the world absent the rule. The incremental impacts of today's proposal
are evaluated by predicting post-rule responses with respect to the
established baseline(s). The baseline, as applied in this analysis, is
assumed to be the point at which today's proposal is finalized.
    A clear baseline for this proposal is not known. Therefore, for
today's action, we have developed our analysis relative to three
alternative baseline scenarios to be applied across all Tri-State
sites. These are:
    Baseline 1: Chat Removal and Disposal in On-Site Subsidence Pits
(with continuing use of chat at approximately the same amount for
transportation projects, while remediation continues);
    Baseline 2: Chat Consolidation, In-Place Containment, and
Revegetation (with continuing use of chat at approximately the same
amount for transportation projects, while remediation continues); and,
    Baseline 3: No Further Action, Except Monitoring of Water Quality
(with continuing use of chat at approximately the same amount for
transportation projects).
    These scenarios are in no way reflective of final Superfund
decisions and are used only for economic analyses performed for today's
action. Today's action in no way supports or creates federal subsidies
for chat use. Furthermore, the Agency wishes to restate its current
policy that EPA does not compensate for the removal and disposal of
hazardous substances as defined under CERCLA.
3. 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 today's proposal 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 proposal
based on the use of encapsulated chat stored at all four sites in the
Tri-State area. Of the chat that is currently used at the four sites,
ninety-five percent of it is used in asphalt transportation
applications. Our cost analysis, therefore, focused on the use of chat
as aggregate in asphalt. Chat may also be used for a variety of non-
asphalt transportation products. However, available data appear to
indicate that non-asphalt uses of chat from the Tri-State area
generally are not economically attractive at this time.
    The time frame we assume for chat disposal and/or removal for
purposes of this rulemaking ranges from 10 to 20

years.\16\ Annualized costs under all scenarios incorporate a 3 percent
interest rate for consistency with relevant Superfund analyses.
Finally, all analytical scenarios assume that approximately 20 percent
of the chat at each site would remain on-site because it is assumed
that this amount may not present an unacceptable threat to human health
or the environment. This assumption is solely used for this rule's
economic evaluation and is not meant to reflect or signify Agency
policy or final Superfund determinations.
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    \16\ This time frame is established as a generalized estimate
for the greatest quantity. The Agency recognizes that selected sites
may be addressed in less time (See Assessment of Potential Costs,
Benefits, and Other Impacts of Chat Use in Transportation Projects,
November 2005).
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    Under all baseline scenarios, with no change in assumed market
growth, our analysis indicates that annual incremental cost (beyond
projected remediation costs) impacts associated with this proposal are
approximately $50,000. This estimate incorporates costs associated with
certification, recordkeeping and reporting. Sampling and analysis costs
are not included. The Agency has decided not to propose environmental
testing at this time.
    In order to estimate the potential scope of remediation cost
savings that may occur should the rule stimulate expanded chat use, we
conducted a sensitivity analysis based on a Geographic Information
Systems (GIS) analysis. This GIS analysis suggested that current demand
for asphalt within 200 miles of the Tar Creek site might accommodate up
to a doubling of chat demand (from one million tons per year to about
1.9 million tons per year) over the next ten to twenty years. This
sensitivity analysis found that baseline remediation cost savings may
be as much as $11.8 million/year and $31.0 million/year, under Baseline
Scenarios 1 and 2, respectively (assuming the 20 year clean-up
scenario). These figures represent cost savings of 29 percent and 33
percent of the total annual baseline 1 and 2 projected remediation
costs.
    Overall, our findings indicate that today's proposal is unlikely to
result in chat management cost savings without increased demand for
chat use in economically viable transportation projects. Additional
``expanded use'' scenarios are examined in the economic support
document prepared for this action: Assessment of Potential Costs,
Benefits, and Other Impacts of Chat Use in Transportation Projects,
January 2006. This document is available in the docket established for
today's action.
4. Economic Impacts
    The potential economic impacts associated with the proposed
rulemaking may include moderate effects on local companies resulting
from changes in the use of chat. Our analysis indicates that the impact
of the proposal on chat use over the next ten to twenty years is
unknown. As a result, it is difficult to determine whether the regional
or local companies will experience any significant economic impacts.
5. Benefits
    Today's proposal is designed to establish standards that would
clarify and facilitate the increased safe use of chat in transportation
applications carried out in whole or in part with federal funds. The
social benefits of this proposed action fall into two categories:
reduced costs associated with remediation of Tri-State mining sites and
reduced human health and environmental damage in the Tri-State area
related to the timely removal of chat. The extent of these benefits is
largely driven by the additional quantity of chat that can be used in
transportation projects and the extent to which transportation uses
result in reduced risks to human health and the environment, as
compared to the remediation (baseline) options.
    Avoided disposal and remediation costs are dependent upon the
extent of the incremental increase in chat use over the assumed
remediation period. Our analysis suggests that societal benefits may
occur in the form of net cost savings under the expanded market
scenario.
    Should the rule, as proposed, fail to stimulate any accelerated use
of chat in transportation projects above the current annual rate, human
health and environmental benefits would be equivalent to those expected
under the relevant baseline scenario(s). However, even under the more
accelerated transportation use scenarios, the extent of our current
knowledge indicates that the remediation of chat piles at the Tri-State
sites is likely to result in human health and environmental risk
reductions similar to baseline scenarios one or two.

IV. Executive Orders and Laws Addressed in This Action

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 [58 FR 51735 (October 4, 1993], the
Agency, in conjunction with the Office of Management and Budget's
(OMB's) Office of Information and Regulatory Affairs (OIRA), must
determine whether a regulatory action is ``significant'' and therefore
subject to OMB review and the full requirements of the Executive Order.
The Order defines ``significant regulatory action'' as one that is
likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
    (2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
    (4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
    Pursuant to the terms of Executive Order 12866, it has been
determined that this rule is a ``significant regulatory action''
because it raises novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order. As such, this action was submitted to OMB for
review. Changes made in response to OMB suggestions or recommendations
are documented in the public record. The proposed rule is unlikely to
result in any significant chat management costs or cost savings. Thus,
the $100 million threshold for economic significance, as established
under point number one above, is not relevant to this action. 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 today's
proposal. This document is entitled: Assessment of Costs, Benefits, and
Other Impacts of Chat Use in Transportation Projects, January 2006.
Findings from this document are summarized under section III. B above.
Interested persons are encouraged to read and comment on all aspects of
this document.

B. Paperwork Reduction Act

    The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget

(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The
Information Collection Request (ICR) document prepared by EPA has been
assigned EPA ICR number 2218.01.
    The certification, reporting, and record keeping required under
this proposal is necessary to ensure safe use of the product.
Certification, recordkeeping and reporting requirements under this
proposal are not voluntary and are not subject to confidentiality
restrictions.
    The burden associated with this proposal is projected to affect a
limited number of entities. These include: three state governments
(Oklahoma, Missouri, Kansas), possibly 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 1,000 hours per year,
with a total annual cost ranging from $40,000 to $60,000, depending
upon labor costs. Although not directly required in the proposal,
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 expected to be minimal (see 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, Recordkeeping.           5     $40-$60         200       1,000     $40,000-$60,000
Burden to Government: Negligible.
----------------------------------------------------------------------------------------------------------------
Note: The burden to respondents also associated with reviewing the regulation is estimated at 100 hours, with a
  total average annual cost estimated at $5,000. This activity is not directly required by the proposal.

    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 Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to 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.
    The Agency requests comment on the need for this information, the
accuracy of the burden estimates, and any suggested methods for
minimizing respondent burden, including through the use of automated
collection techniques.

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,