

[Federal Register: April 4, 2006 (Volume 71, Number 64)]
[Proposed Rules]               
[Page 16729-16749]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[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 rcra-docket@epa.gov, 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

[[Page 16730]]

comment that is placed in the official public docket, and made 
available in EPA's electronic public docket.
     Fax: Comments may be faxed to 202-566-0272.
     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 (202) 566-0270. 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 (202) 566-0270.

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 hoffman.stephen@epa.gov. 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

[[Page 16731]]

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 haynes.lashan@epa.gov.
    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:
---------------------------------------------------------------------------

    \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.

[[Page 16732]]

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

[[Page 16733]]

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).


[[Page 16734]]


     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

[[Page 16735]]

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

[[Page 16736]]

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

[[Page 16737]]

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

[[Page 16738]]

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

[[Page 16739]]

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.

[[Page 16740]]

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

[[Page 16741]]

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.

[[Page 16742]]

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

[[Page 16743]]

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.
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    \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

[[Page 16744]]

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.
---------------------------------------------------------------------------

    \14\ See 40 CFR 261.4(b)(7).
---------------------------------------------------------------------------

    A small, but well-established market for chat in transportation 
applications currently exists. The preparation and use of chat is 
dominated by a few small operations that purchase, process, and 
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.
---------------------------------------------------------------------------

    \15\ Current non-transportation uses of chat include: component 
in non-skid surfaces, sand blasting material, and waste water 
treatment filters.
---------------------------------------------------------------------------

    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

[[Page 16745]]

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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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

[[Page 16746]]

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

D. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million

[[Page 16747]]

or more in any one year. Before promulgating an EPA rule for which a 
written statement is needed, section 205 of the UMRA generally requires 
EPA to identify and consider a reasonable number of regulatory 
alternatives and adopt the least costly, most cost-effective or least 
burdensome alternative that achieves the objectives of the rule. The 
provisions of section 205 do not apply when they are inconsistent with 
applicable law. Moreover, section 205 allows EPA to adopt an 
alternative other than the least costly, most cost-effective or least 
burdensome alternative if the Administrator publishes with the final 
rule an explanation why that alternative was not adopted. Before EPA 
establishes any regulatory requirements that may significantly or 
uniquely affect small governments, including tribal governments, it 
must have developed under section 203 of the UMRA a small government 
agency plan. The plan must provide for notifying potentially affected 
small governments, enabling officials of affected small governments to 
have meaningful and timely input in the development of EPA regulatory 
proposals with significant Federal intergovernmental mandates, and 
informing, educating, and advising small governments on compliance with 
the regulatory requirements.
    Today's rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local, or tribal 
governments or the private sector. Thus, today's rule is not subject to 
the requirements of sections 202 and 205 of the UMRA.
    EPA has determined that this rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments because the requirements proposed in today's action only 
apply to the private sector that uses chat in transportation 
construction projects funded wholly or in part using federal funds.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    Under Executive Order 13132, EPA may not issue a regulation that 
has federalism implications, that imposes substantial direct compliance 
costs, and that is not required by statute, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by State and local governments, or EPA consults with 
State and local officials early in the process of developing the 
regulation.
    This rule, as proposed, does not have federalism implications. It 
will not have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in the Order. The rule focuses on requirements 
for facilities processing and using chat in transportation projects. 
This rule, as proposed, does not affect the relationships between 
Federal and State governments. Thus, Executive Order 13132 does not 
apply to this rule.

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

    Executive Order 13175: Consultation and Coordination with Indian 
Tribal Governments (65 FR 67249, November 9, 2000), requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by tribal officials in the development of regulatory policies that have 
tribal implications.'' ``Policies that have tribal implications'' is 
defined in the Executive Order to include regulations that have 
substantial direct effects on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes.
    Under Executive Order 13175, EPA may not, to the extent practicable 
and permitted by law, issue a regulation that has tribal implications, 
that imposes substantial direct compliance costs, and that is not 
required by statute, unless, among other things, the Federal government 
provides the funds necessary to pay the direct compliance costs 
incurred by tribal governments, and EPA consults with State and local 
officials early in the process of developing the regulation. Similarly, 
to the extent practicable and permitted by law, EPA may not issue a 
regulation that has tribal implications and that preempts tribal law 
unless EPA, among other things, consults with tribal officials early in 
the process of developing the regulation.
    EPA has concluded that this rule does not have tribal implications 
in that it does not have substantial direct effects as specified in the 
Executive Order. In particular, EPA notes that this rule does not 
impose substantial direct compliance costs or pre-empt tribal law. Some 
chat piles are located on Indian country lands. Allotted lands of the 
Quapaw Tribe of Oklahoma (Quapaw Tribe) are estimated to contain about 
half of the 29 chat piles located within the Picher Mining Field site. 
The Tribal government may own or operate chat processing facilities, 
but this is undetermined. The proposed rule, however, is not expected 
to significantly alter the costs or procedures associated with managing 
these sites. Nor is the rule expected to significantly change the 
demand for, and income from, chat use. Furthermore, the removal of chat 
piles are likely to improve the environment and human health in these 
areas.
    Nevertheless, during the development of this proposal, Agency 
personnel consulted with representatives of the Quapaw tribe. In 
addition, a draft of the preamble and rule was provided to the Quapaw 
Tribe for review and comment; comments were submitted in a letter dated 
February 9, 2006, a copy of which is in the docket for today's 
rulemaking. EPA also consulted with tribal government representatives 
on the Tri-State Natural Resource Damage Partnership during a meeting 
on October 25, 2005 in Pittsburg, Kansas. At the meeting, Tribal 
representatives generally supported the proposal. 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.

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

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

[[Page 16748]]

Executive Order because it is not economically significant as defined 
under point one of the Order, and because the Agency does not have 
reason to believe the environmental health or safety risks addressed by 
this action present a disproportionate risk to children.

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

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355 (May 22, 2001)). This rule, as 
proposed, will not seriously disrupt energy supply, distribution 
patterns, prices, imports or exports. Furthermore, this rule is not an 
economically significant action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. The NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards. This proposal 
does not require the application of technical standards (e.g., 
materials specification, sampling, analyses). As such, the National 
Technology Transfer and Advancement Act does not pertain to this 
action.

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

    Executive Order 12898, ``Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations'' (February 
11, 1994) requires the Agency to complete an analysis of today's 
proposal with regard to equity considerations. The Order is designed to 
address the environmental and human health conditions of minority and 
low-income populations.
    Our analysis indicates that chat piles in the Tri-State mining 
region are, in some cases, located near low-income populations. In 
addition, Quapaw allotted lands are located within the Picher Mining 
Field. Existing data on the human health and ecological impacts 
associated with chat suggests that these populations may be adversely 
affected by the presence of the chat piles. The removal of the chat 
from piles for transportation applications that are considered 
environmentally protective would likely have a positive impact on these 
communities. Therefore, we believe that today's proposal should not 
result in any adverse or disproportional health or safety effects on 
minority or low-income populations and, in fact, will likely improve 
environmental protection.

List of Subjects in 40 CFR Part 278

    Environmental protection, Chat, Indians--lands, Mine tailings, 
Reporting and recordkeeping requirements, Waste.

    Dated: March 23, 2006.
Stephen L. Johnson,
Administrator.

    For the reasons set out in the preamble, in title 40, chapter I of 
the Code of Federal Regulations, a new part 278 is proposed to be added 
as follows:

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

Sec.
278.1 Definitions.
278.2 Applicability.
278.3 Criteria.
278.4 Certification and recordkeeping requirements.

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


Sec.  278.1  Definitions.

    The following definitions apply in this part:
    (a) Asphalt cement concrete means pavement consisting 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.
    (b) Chat means 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.
    (c) Encapsulation means incorporation of chat into hot mix asphalt 
concrete or Portland cement concrete (PCC).
    (d) Hot mix asphalt means a hot mixture of asphalt binder and size-
graded aggregate, which can be compacted into a uniform dense mass.
    (e) Portland cement concrete (PCC) means pavements consisting of a 
PCC slab that is usually supported by a granular (made of compacted 
aggregate) or stabilized base and a subbase.
    (f) Tri-State Mining District means the lead-zinc mining areas of 
Ottawa County, Oklahoma, Cherokee County of southeast Kansas and Jasper 
and Newton Counties of southwest Missouri.
    (g) Federal or state remediation action means State or federal 
actions undertaken pursuant to applicable federal or state 
environmental laws undertaken with consideration of risk assessments 
developed in accordance with state and federal laws, regulations, and 
guidance.
    (h) Transportation construction projects means transportation 
construction projects which encapsulate chat in hot mix asphalt 
concrete or in Portland cement concrete.


Sec.  278.2  Applicability.

    (a) These requirements apply to chat from the Tri-State Mining 
District used in transportation construction projects carried out in 
whole or in part using federal funds.
    (b) [Reserved]


Sec.  278.3  Criteria.

    (a) Chat must be encapsulated in hot mix asphalt concrete or 
Portland cement concrete; or
    (b) Authorized for use by a State or federal response action 
undertaken pursuant to applicable federal or state environmental laws.


Sec.  278.4  Certification and recordkeeping requirements.

    (a) Certification. For chat used under the jurisdiction of the U.S. 
Department of Interior, Bureau of Indian Affairs (BIA), the EPA 
certification below is not applicable. For all other chat, that is not 
part of demolished asphalt or concrete, the acquirer shall:
    (1) Submit a signed, written certification to the environmental 
regulatory agency in the State where the chat is acquired within 30 
days of the date of acquisition. The certification shall contain the 
following:
    (i) Location of origin of the chat;
    (ii) Amount of chat acquired; and
    (iii) Certification statement: I certify under penalty of law that 
the chat used

[[Page 16749]]

in this transportation project will meet EPA criteria found in Sec.  
278.3.
    (2) Transfer. If the chat is sold or otherwise transferred to 
another party, the acquirer shall provide a copy of the certification 
to the new owner of the chat. The new owner shall submit a 
certification according to paragraph (a)(1) of this section. The new 
certification supersedes all previous certifications.
    (3) Recordkeeping. The acquirer of chat, and any other person that 
receives the chat, will maintain a copy of the certification for three 
years following transmittal to the State department(s) of the 
environment.
    (b) [Reserved]
[FR Doc. 06-3104 Filed 4-3-06; 8:45 am]

BILLING CODE 6560-50-P
