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and its 4-OH metabolite in almonds, ENVIRONMENTAL PROTECTION EPA is also establishing recommended rice, wheat and meat, milk, poultry and AGENCY criteria as guidance on the eggs. Petition for tolerances’’ (1984). environmentally protective use of chat 40 CFR Parts 260 and 278 28. Office of Pesticides and Toxic for non-transportation cement and concrete projects. Finally, the Agency is Substances, Memorandum from David [EPA–HQ–RCRA–2006–0097; FRL–8326–1] establishing certification and Ritter to H. Jacoby, ‘‘EPA Reg.No 50534– RIN 2050–AG27 recordkeeping requirements for all chat, 7 Data Call in Submission. except that under the jurisdiction of the Chlorothalonil Registration Standard; Criteria for the Safe and U.S. Department of Interior, Bureau of review of data’’ (1986). Environmentally Protective Use of Indian Affairs (BIA). The chat covered 29. Office of Prevention, Pesticides, Granular Mine Tailings Known as by this rule is from the lead and zinc and Toxic Substances, Memorandum ‘‘Chat’’ mining areas of Oklahoma, Kansas and from Alan C. Levy to Walter Waldrop/ AGENCY: Environmental Protection Missouri, known as the Tri-State Mining Andrew W. Ertman, ‘‘Chlorothalonil - Agency (EPA). District. DATES: This final rule is effective on Review of 30–Day, 90–Day and One– ACTION: Final rule. Year Dog Studies (Oral Administration, September 17, 2007. Gelatin Capsules)’’ (1996). SUMMARY: The Environmental Protection The incorporation by reference of certain publications listed in this rule is 30. Health Effects Division, U.S. EPA, Agency (EPA or the Agency) is promulgating mandatory criteria for the approved by the Director of the Federal Data Evaluation Report; Ninety Day Register as of September 17, 2007. Mouse Feeding Study; Technical environmentally protective use of chat ADDRESSES: The public docket for this Chlorothalonil (DS–2787) (1983). in transportation projects carried out, in whole or in part, with Federal funds. final rule, Docket ID No EPA–HQ– 31. Office of Prevention, Pesticides, Specifically, chat used in such RCRA–2006–0097, contains the and Toxic Substances, U.S. EPA, transportation projects will be safe and information related to this rulemaking, Memorandum from Alan C. Levy to environmentally protective if it is used including the response to comment Karen Whitby, ‘‘Chlorothalonil - in asphalt concrete, in slurry seals, document. All documents in the docket Rereview of a Chronic Dog Study and a microsurfacing, or in epoxy seals for are listed in the http:// Developmental Rat Study; Review of a anti-skid on bridge decking. Chat used www.regulations.gov index. Although Dermal Absorption Rat Study’’ (1995). in such transportation projects will also listed in the index, some information may not be publicly available, e.g., 32. Office of Pesticides and Toxic meet EPA’s criteria if it is used in Portland cement concrete, flowable fill, Confidential Business Information or Substances, U.S. EPA, Memorandum other information the disclosure of from D. Ritter to Lois Rossi, ‘‘EPA No stabilized base, chip seals, or as road base providing, on a case-by-case basis, which is restricted by statute. Certain 50534–7 - CX, Submission of additional other material, such as copyrighted toxicity data’’ (1988). either: Synthetic Precipitation Leaching Procedure (SPLP, EPA SW–846 Method material, will be publicly available only 33. Office of Prevention, Pesticides, 1312) tests are conducted on the in hard copy. Publicly available docket and Toxic Substances, U.S. EPA, Health proposed material and the leachate materials are available either Effects Test Guidelines; OPPTS testing results show that concentrations electronically in http:// 870.3800; Reproduction and Fertility in the leachate do not exceed the www.regulations.gov or in hard copy at Effects (August 1998). Drinking Water Standards for lead and the EPA Docket, EPA/DC, EPA West, cadmium and the fresh water chronic Room 3334, 1301 Constitution Ave., 34. Health Effects Division, Office of NW., Washington, DC. The Public Pesticide Programs, U.S. EPA, Data National Recommended Water Quality Criterion for zinc of 120 ug/l; or EPA (or Reading Room is open from 8:30 a.m. to Evaluation Record (TXR No: 0052493): 4:30 p.m., Monday through Friday, Reproduction and Fertility Effects Study a State environmental Agency, if it chooses to do so) has determined, based excluding legal holidays. The telephone - [rat]; Chlorothalonil (1995). number of the Public Reading Room is on a site-specific risk assessment and 202–566–1744, and the telephone 35. Office of Pesticide and Toxic after notice and opportunity for public number to make an appointment to view Substances, U.S. EPA, Memorandum comment, that the releases from the chat the docket is 202–566–0276. from Alan C. Levy to Walter Waldrop/ mixture in its proposed use will not Andrew W. Ertman, ‘‘Chlorothalonil - cause an exceedance of the National FOR FURTHER INFORMATION CONTACT: Two-Generation Reproduction Study in Primary Drinking Water Standards for Stephen Hoffman, U.S. Environmental Rats’’ (1993). lead and cadmium in potential drinking Protection Agency, 1200 Pennsylvania water sources and the fresh water Avenue, NW, Washington, DC, 20460– List of Subjects in 40 CFR Part 180 chronic National Recommended Water 0002, Mail Code 5306P; telephone number: 703–308–8413; fax number: Environmental protection, Quality Criterion for zinc of 120 ug/l in surface water. Furthermore, this rule 703–308–8686; e-mail address: Administrative practice and procedure, [email protected]. Additional Agricultural commodities, Pesticides also establishes a criterion that other uses of chat will be safe and information on this rulemaking is also and pests, Reporting and recordkeeping available on the internet at http:// requirements. environmentally protective and are acceptable if they are part of, and www.epa.gov/epaoswer/other/mining/ Dated: July 1, 2007. otherwise authorized by, a State or chat/. The contents of this final rule are Debra Edwards, Federal response action undertaken in listed in the following outline Director, Office of Pesticide Programs. accordance with Federal or State [FR Doc. E7–13830 Filed 7–17–07; 8:45 am] environmental laws, with consideration Contents of the Final Rule of a site-specific risk assessment. This BILLING CODE 6560–50–S I. General Information rule does not require that chat be sized A. Does This Rule Apply to Me? (dry or wet) prior to its use, as long as B. What Are the Statutory Authorities for this rule’s criteria are complied with. This Final Rule?

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C. Definitions and Acronyms Used in the listed in the preceding FOR FURTHER warm, and hot mix asphalt, chip seals, Rule INFORMATION CONTACT section. slurry seals, and microsurfacing. The II. Summary of This Rule term ‘asphalt’ is sometimes used B. What Are the Statutory Authorities III. Background Information generically in place of cold, warm, or IV. Rationale for This Rule and Response to for This Final Rule? Comments hot mix asphalt. Through Title VI, Section 6018 of the • Asphalt concrete—a layer, or A. What Was the Process EPA Used to Safe, Accountable, Flexible, and Develop This Action? combination of layers, composed of a B. What Criteria Are EPA Establishing for Efficient Transportation Equity Act of compacted mixture of an asphalt binder the Use of Chat? 2005 (HR 3 or ‘‘the Act’’), Congress and mineral aggregate. C. Relationship of This Rule to Other amended Subtitle F of the Solid Waste • Pozzolanic—a siliceous material Federal Regulations and Guidance Disposal Act (42 U.S.C. 6961 et seq.) by which when combined with calcium D. How Does This Rule Affect Chat Sales adding Sec. 6006. This provision hydroxide in the presence of moisture From Land Administered by BIA or requires the Agency to establish safe exhibits cementitious properties. Directly From Tribal Lands? and environmentally protective criteria • State or Federal response action— E. How Does This Rule Affect CERCLA (including an evaluation of whether to Liability, Records of Decision and State or Federal response action establish a numerical standard for undertaken pursuant to applicable Response Actions? concentrations of lead and other F. How Does This Rule Affect the Use of Federal or State environmental laws and Federal Funds Administered by the U.S. hazardous substances) for the use of with consideration of site-specific risk Department of Transportation for granular mine tailings from the Tar assessments. Transportation Construction Projects? Creek, Oklahoma Mining District, • Raw chat—unmodified lead-zinc V. Impacts of the Final Rule known as ‘chat,’ in cement and concrete ore milling waste that comes from the A. What are the Potential Environmental projects and in transportation Tri-State Mining District. and Public Health Impacts From the Use construction projects that are carried • Washed chat—lead-zinc ore milling of Chat in Transportation Construction out, in whole or in part, using Federal waste that has been wet-screened to Projects? funds. Section 6006(a)(4) requires that B. What are the Economic Impacts? remove the fine-grained fraction and any use of the granular mine tailings in which is sized so as not to pass through VI. State Authority a transportation project that is carried VII. Statutory and Executive Order Reviews a number 40 sieve (0.425 mm opening A. Executive Order 12866: Regulatory out, in whole or in part, using Federal size) or smaller. Planning and Review funds, meet EPA’s established criteria. • Sized chat—lead-zinc ore milling B. Paperwork Reduction Act In establishing such criteria, EPA is waste that has been wet-screened C. Regulatory Flexibility Act required to consider ‘‘the current and (washed) or dry sieved to remove the D. Unfunded Mandates Reform Act previous uses of granular mine tailings fine-grained fraction smaller than a E. Executive Order 13132: Federalism as an aggregate for asphalt, and any number 40 sieve (0.425 mm opening F. Executive Order 13175: Consultation environmental and public health risks and Coordination With Indian Tribal size). and benefits derived from the removal, Non-transportation cement and Governments transportation and use in transportation G. Executive Order 13045: Protection of concrete projects uses are: projects of granular mine tailings’’ Children From Environmental Health —Construction uses of cement and and Safety Risks carried out, in whole or in part, using concrete for non-residential structural H. Executive Order 13211: Actions Federal funds. EPA is also required to uses limited to weight bearing Concerning Regulations That consult with the Secretary of purposes such as foundations, slabs, Significantly Affect Energy Supply, Transportation, and other Federal and concrete wall panels. Other uses Distribution, or Use agencies in developing these criteria. include commercial/industrial I. National Technology Transfer and RCRA section 2002(a) grants the Agency Advancement Act parking and sidewalk areas. Uses do broad rulemaking authority, providing not include any residential use of J. Executive Order 12898: Federal Actions that the Administrator is authorized to To Address Environmental Justice in cement or concrete (e.g., residential prescribe ‘‘such regulations as are Minority Populations and Low-Income parking areas, residential Populations necessary to carry out his functions construction, concrete counter tops). K. Congressional Review Act under this chapter.’’ While this is a regulation promulgated Transportation construction uses are: I. General Information under RCRA, the rule sets the criteria —Hot mix asphalt—a hot mixture of A. Does This Rule Apply to Me? that must be complied with at asphalt binder and size-graded transportation construction projects aggregate, which can be compacted These criteria affect the following funded, in whole or in part, with into a uniform dense mass. Hot mix entities: aggregate, asphalt, cement, and Federal funds. The U.S. Department of asphalt also includes hot mix asphalt concrete facilities, likely limited to the Transportation (DOT) has statutory sub bases and hot mix asphalt bases. Tri-State Mining District. However, responsibility over the dispersement of —Portland cement concrete (PCC)— other types of entities not identified federal funds for transportation projects. pavements consisting of a PCC slab could also be affected—that is, the list Therefore, USDOT will make reference that is usually supported by a is not intended to be exhaustive, but to to this rule as one of the regulatory granular (made of compacted provide a guide for readers regarding requirements it requires all states to aggregate) or stabilized base and a sub those entities that potentially could be adhere to as a condition of receiving base. In some cases, the PCC slab may affected by this action. To determine Federal funds for transportation projects be overlaid with a layer of hot mix whether your facility, company, using chat. asphalt. PCC uses also include bridge business, organization, etc., is affected supports, bridge decking, abutments, by this action, you should examine the C. Definitions and Acronyms Used in highway sound barriers, jersey walls, applicability criteria of this preamble. If the Rule and non-residential side walks you have any questions regarding the • Asphalt—also known as asphalt adjacent to highways. applicability of this action to a cement, is liquid bitumen (heavy —Flowable fill—a cementitious slurry particular entity, consult the person petroleum) used as the binder in cold, consisting of a mixture of fine

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aggregate or filler, water, and Abbreviations and Acronyms Used in seeking comment on a proposed rule cementitious materials which is used This Document that would establish criteria for the safe primarily as a backfill in lieu of ANSI American National Standards and environmentally protective use of compacted earth. This mixture is Institute chat in transportation projects funded, capable of filling all voids in irregular AASHTO American Association of in whole or in part, with Federal funds, excavations, is self leveling, and State Highway and Transportation as well as proposed guidance on the use hardens in a matter of a few hours Officials of chat in non-transportation cement without the need of compaction in ASR Alkali-Silica Reaction and concrete projects. Based on a layers. Most applications for flowable ASTM American Society for Testing request to extend the comment period, fill involve unconfined compressive and Materials the Agency again sought comment on strengths of 2.1 MPa (300 lb/in2) or ATSDR Agency for Toxic Substances this proposal on May 19, 2006 (71 FR less. and Disease Registry 29117). The purpose of the proposed —Stabilized base—a class of paving BDAT Best Demonstrated Available rule was to establish criteria that would materials that are mixtures of one or Technology identify environmentally protective uses more sources of aggregate and BIA Bureau of Indian Affairs of chat in federally funded cementitious materials blended with a CAA Clean Air Act (42 USCA 7401) transportation projects. sufficient amount of water that result CERCLA Comprehensive The Agency received many comments in the mixture having a moist Environmental Response in response to its April 4 and May 19, nonplastic consistency that can be Compensation and Liability Act (42 2006 notices. Numerous commenters compacted to form a dense mass and USCA 9601) generally supported the proposed rule, gain strength. This class of base and CFR Code of Federal Regulations while other commenters suggested sub base materials excludes CWA Clean Water Act (33 USCA 1251) changes to the proposal. After stabilization of soils or aggregates DOT Department of Transportation considering all comments, we are using asphalt concrete or emulsified EO Executive Order finalizing the proposed rule with several significant modifications. The final rule, asphalt. EPA Environmental Protection Agency FHWA Federal Highway similar to the proposed rule, establishes —Granular bases—road base typically criteria allowing the use of chat in constructed by spreading aggregates Administration FR Federal Register federally funded transportation projects in thin layers of 150 mm (6 inches) to when used in asphalt concrete for 200 mm (8 inches) and compacting ICR Information Collection Request IEUBK Integrated Exposure Uptake roadway surfaces and in asphalt for road each layer by rolling over it with bases and sub bases. Upon heavy compaction equipment. The Biokinetic (Model) MCL Maximum Contaminant Level consideration of the comments, the aggregate base layers serve a variety of (Safe Drinking Water Act) Agency is expanding its criteria for chat purposes, including reducing the NIOSH National Institute for in federally funded transportation stress applied to the sub grade layer Occupational Safety and Health projects to include chat used in slurry and providing drainage for the NPL National Priorities List seals, microsurfacing, epoxy seals, and pavement structure. The granular sub ODEQ Oklahoma Department of cold and warm mix asphalt. However, a base forms the lowest (bottom) layer Environmental Quality significant modification to the proposal of the pavement structure and acts as OMB Office of Management and is that before chat can be used in the principal foundation for the Budget Portland cement concrete (PCC) subsequent road profile. OSHA Occupational Safety and Health federally funded transportation projects, —Embankment—a volume of earthen Administration a person must show, on a case by case material that is placed and compacted OU University of Oklahoma basis that: (1) Synthetic Precipitation for the purpose of raising the grade of OUs Operable Units Leaching Procedure (SPLP, EPA SW– a roadway above the level of the PCC Portland cement concrete 846 Method 1312) tests are conducted existing surrounding ground surface. PEL Permissible Exposure Level on the proposed material and the —Slurry seals—a material composed of ppmv parts per million by volume leachate testing results show that emulsified asphalt, aggregate, and ppmw parts per million by weight concentrations in the leachate do not mineral fillers, such as Portland Pub. L. Public Law exceed the National Primary Drinking cement or lime which is applied as a RCRA Resource Conservation and Water Standards for lead and cadmium thin coating on top of asphalt or PCC Recovery Act (42 USCA 6901) and the fresh water chronic National road surfaces. ROD Record of Decision Recommended Water Quality Criterion —Micosurfacing—polymer-modified SMCL Secondary Maximum for zinc of 120 ug/l; or (2) EPA (or a slurry seal. Contaminant Level (Safe Drinking State environmental Agency, if it Water Act) chooses to do so) has determined, based —Cold mix asphalt—an asphalt/ SPLP Synthetic Precipitation Leaching on a site-specific risk assessment and aggregate mixture composed of Procedure (EPA SW 846 Method after notice and opportunity for public binders, soaps, or other chemicals 1312) comment, that the releases from the chat which allow its use when cold or SSL (Superfund) Soil Screening Level mixture in its proposed use will not warm. TCLP Toxicity Characteristic Leaching cause an exceedance of the National —Epoxy seals—the mixture of aggregate Procedure (EPA SW 846 Method Primary Drinking Water Standards for in epoxy binders. Epoxy seals are 1311) lead and cadmium in potential drinking typically used as an anti-skid surface TWA Time-Weighted Average water sources and the fresh water on bridge decking. USACE U.S. Army Corp of Engineers chronic National Recommended Water —Chip seals—a material composed of U.S.C. United States Code Quality Criterion for zinc of 120 ug/l in aggregate placed on top of a layer of surface water. an asphalt or asphaltic liquid binder. II. Summary of This Rule The Agency is making these changes The aggregate may be rolled into the On April 4, 2006, EPA published a in response to comments received on binder. Federal Register notice (64 FR 16729) the proposed rule, including comments

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from the Peer Review Panel, which In 1980, Congress enacted the Solid the United States. Surface piles of chat, argued that there were insufficient data Waste Disposal Act Amendments (Pub. as well as underground mining areas, for the Agency to determine the range of L. 96–482) which added section extend uninterrupted across the risk from the use of chat in PCC. In 3001(b)(3)(A)(ii) (the Bevill Oklahoma-Kansas State line. In the addition, based on comment, the Amendment) to RCRA. This section proposal, the Agency did not include Agency also concluded that the use of required the Agency to study extraction/ Lawrence and Barry counties in chat in flowable fill, stabilized based, beneficiation wastes and in 1989 the southwest Missouri as part of the areal chip seals and as road base may only be Agency promulgated a rule (54 FR extent of the rule, but requested allowed if a case-by-case demonstration 36592) which exempts extraction/ comment on whether it would be is made, as described above. This rule’s beneficiation wastes from regulation reasonable to include them (see 71 FR approach will generate the data needed under the RCRA Subtitle C hazardous 16732). Commenters requested that the to determine if such uses are safe and waste regulations (see (40 CFR Agency expand the scope of the rule to environmentally protective. Such an 261.4(b)(7)). Therefore, chat is a ‘‘Bevill include these two counties in southwest approach is also similar to that already exempt’’ waste and is not subject to Missouri. Based on communication with used by a number of states when they regulation under RCRA Subtitle C. This state regulatory officials in Kansas, make beneficial use determinations. exemption does not, however, affect Missouri, and Oklahoma and review of The Agency wishes to emphasize that CERCLA jurisdiction over chat, since mineral geology studies, EPA concludes the use of chat in transportation chat contains hazardous substances, nor that there is no real factual distinction projects, funded in whole or in part does it affect the jurisdiction of RCRA between chat derived from these three using Federal funds, does not affect a section 7003, as long as the chat is a states, and believes that it is reasonable person’s obligation to comply with solid waste. to apply this rule to the areal extent of all chat generated and currently located existing state or Federal materials 2. What Is the Areal Scope for This in the following counties: Ottawa specifications. Further discussion of this Action? county, Oklahoma, Cherokee county, matter is noted in the sections entitled, The Act directed EPA to develop Physical and Chemical Characteristics Kansas, and Newton, Jasper, Lawrence criteria for chat from the Tar Creek, and Barry counties in Missouri. of Chat and Relationship of this Rule to Oklahoma Mining District. However, other Federal Regulations and there is no definition of the term ‘‘Tar 3. Are There Any Current Regulations of Guidance. Creek Oklahoma Mining District.’’ Asphalt, Portland Cement Concrete or The Agency has retained its proposal Available literature references the ‘‘Tar Chat Washing Facilities? that chat authorized by a State or Creek Superfund site,’’ which is in Based on the Agency’s review of Federal response action undertaken in Oklahoma, but the term ‘‘mining existing state and federal regulations, accordance with Federal or State district’’ is only used in reference to the the Agency did not propose to apply environmental laws need not comply ‘‘Tri-State Mining District.’’ For any additional regulations on chat with the criteria in sections 278.3 (a) or purposes of this final rule, the areal washing or hot mix asphalt and (b). Such response actions are scope includes chat originating from the Portland cement concrete plants, undertaken with consideration of site- Tri-State Mining District of Ottawa although the Agency solicited comment specific risk assessments. For example, County, Oklahoma, Cherokee County of on whether it would be prudent for this unencapsulated uses of chat may be southeast Kansas, and Jasper, Newton, rule to apply additional controls, over authorized in a State or Federal Lawrence and Barry Counties of those that currently exist, to address remediation action. This rule also southwest Missouri, regardless of where environmental releases from these types retains the certification requirement, it is used. of facilities.1 Specifically, at proposal, since the Agency believes that such In 1979, the U.S. Bureau of Mines the Agency assessed existing regulations notice is important for states and the completed a study to identify all mined in Oklahoma, Kansas, and Missouri for public to know how and where chat is areas and mine-related hazards which hot mix asphalt plants and Portland used in transportation. confirmed that lead-zinc mining covers cement concrete plants to determine EPA believes that this rule will a portion of each of the States of Kansas, whether those operations are encourage the environmentally sound Missouri, and Oklahoma. This area is appropriately regulated to address use of chat in transportation projects the same area known as the Tri-State environmental releases for such funded, in whole or in part, with Mining District. facilities. (See memorandum entitled: Federal funds. Chat located in this historical mining Evaluation of State Regulations in the district is a product of similar docket.) Those regulations set standards III. Background Information mineralization processes that sets it for point and fugitive air emission 1. What Is Chat? aside from related lead-zinc sources (see Kansas: K.A.R. 28–19–500, mineralization districts elsewhere in the Missouri: 10 CSR 10–6.170, and Chat is the waste material that was United States. The Tri-State Oklahoma: OAC 252:100–7/8/29) and generated from the extraction and mineralization is specifically associated also set requirements for water beneficiation of lead/zinc minerals to with wall rock alteration into dolomite discharges from point source discharges produce lead/zinc concentrate in the and microcrystalline silica (chert). The (see Kansas: K.A.R. 28–16, Missouri: 10 Tri-State Mining District of Southwest term chat is derived from the word Missouri, Southeast Kansas and ‘‘chert,’’ referring to the cherty wallrock 1 It should be noted that the statute does not Northeast Oklahoma. Chat is primarily found in this mining district. The lead/ require the Agency to set criteria for facilities that prepare chat prior to its use, but restricts the composed of chert, a very hard rock. zinc ore and its related waste, chat, in activities for which the Agency is to establish The primary properties that make chat this district also have a well defined criteria for the use of chat in transportation projects useful in asphalt-based road materials, lead to zinc ratio. funded, wholly or in part, with Federal funds. Portland cement concrete, and epoxies For over one hundred years of activity Nevertheless, the Agency evaluated the potential for environmental releases from these types of are grain size distribution, durability, ending in 1970, the Tri-State Mining facilities—chat washing, hot mix asphalt and non-polishing, and low moisture District has been the source of a major Portland cement concrete plants as part of the absorption. share of all the lead and zinc mined in rulemaking.

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CSR 20–6.200, and Oklahoma: OAC and determined that they are in fact traffic. This fact sheet also incorporated 252:606–5–5). In addition, Oklahoma, subject to regulation of their releases the ODEQ list of unacceptable Missouri and Kansas all require that and that the existing regulations assure residential uses of chat. trucks transporting aggregate must be safe and environmentally protective In addition, EPA Region 7 issued a covered to reduce fugitive emissions conditions at these facilities—that is, Mine Waste Fact Sheet in 2003 that and reduce damage to other vehicles hot mix asphalt plants, PCC plants and identified the uses of chat that are not from windblown debris. The Bureau of chat washing facilities. Therefore, the likely to present a threat to human Indian Affairs (BIA) also requires that Agency is not promulgating additional health or the environment. Those uses trucks transporting chat from Tribal controls for these facilities. are: (1) Applications that bind material lands be covered to prevent blowing into a durable product; these would 4. Are There Existing Criteria for the Use dust from transport. include its use as an aggregate in batch The Agency also assessed existing of Chat? plants preparing asphalt and concrete, regulations in Oklahoma, Kansas, and As noted in a 2005 University of (2) applications below paving on asphalt Missouri for chat washing facilities to Oklahoma (OU) report, the Oklahoma or concrete roads and parking lots, (3) determine whether chat ‘‘washing’’ Department of Environmental Quality applications that cover the material with operations are adequately managed.2 (ODEQ) has determined that the clean material, particularly in areas that There are two commercial chat washing following transportation uses of raw are not likely to ever be used for facilities in the Tri-State area and both chat are inappropriate: Use in residential or public area development, are located within the Tar Creek residential driveways and as gravel or and (4) applications that use the Superfund site. While the States do not unencapsulated surface material in material as a raw product for have specific regulations applicable to parking lots, alleyways, or roadways manufacturing a safe product. The fact chat washing facilities, these facilities (See A Laboratory Study to Optimize the sheet also lists mine waste (chat) uses are subject to State general fugitive air Use of Raw Chat in Hot Mix Asphalt for that may not be safe and emissions and general storm water Pavement Application: Final Report). environmentally protective and are discharge regulations. These general ODEQ also identified the following non- similar to those listed by ODEQ and the State permits require that fugitive dusts transportation uses of raw chat that are Region 6 fact sheet. However, the and runoff be controlled in a fashion so deemed inappropriate for residential Region 7 fact sheet also lists use as an that dusts and other pollutants do not use: agricultural soil amendment to adjust leave the property line or the boundary —Fill material in yards, playgrounds, soil alkalinity as a use that may not be of the construction activity. In addition, parks, and ball fields safe and environmentally protective. because the two chat washing facilities —Playground sand or surface material This rule is more restrictive than the are located within the Tar Creek in play areas 2002/2003 Region 6 and 7 fact sheets. Superfund site, the Agency may rely on —Vegetable gardening in locations with Therefore, the Agency is issuing new CERCLA authority to establish any contaminated chat fact sheets on the use of chat from the additional conditions that are —Surface material for vehicular traffic Tri State Mining District in considered necessary to be safe and (e.g., roadways, alleyways, driveways, transportation construction projects environmentally protective. or parking lots) funded, in whole or in part, with The BIA is also establishing air and —Sanding of icy roads Federal funds and in non-transportation water standards for chat washing —Sandblasting with sand from tailings non-residential uses of chat. The new facilities located on Tribal lands and ponds or other chat sources fact sheets are consistent with this rule. —Bedding material under a slab in a lands administered by BIA. BIA’s The fact sheets are available at http:// building that has underfloor air requirements include that the chat www.epa.gov/epaoswer/other/mining/ conditioning or heating ducts washing facility manage waste water chat/. discharges so that they do not exceed —Development of land for residential State standards, that fugitive dusts be use (e.g., for houses or for children’s 5. Physical and Chemical controlled, and that fines are handled play areas, such as parks or Characteristics of Chat and disposed of so that they do not playgrounds) where visible chat is This section provides information on contaminate ground water. In addition, present or where the lead the physical characteristics, such as BIA requires all purchasers of chat from concentration in the soil is equal to or hardness, soundness (durability), Tribal lands, or lands administered by greater than 500 mg/kg unless the gradation, shape and surface texture, BIA, to certify that the chat will be used direct human contact health threat is and chemical characteristics, such as in accordance with authorized uses set eliminated by engineering controls the leaching potential of chat. forth in EPA fact sheets and other (e.g., removing the contaminated soil guidance. (See report titled, Chat Sales or capping the contaminated soil with Physical Characteristics Treatability Study Workplan for the Sale at least 18 inches of clean soil) In an OU study (A Laboratory Study of Indian-Owned Chat within the Tar EPA Region 6 also issued a Tar Creek to Optimize the Use of Raw Chat in Hot Creek Superfund Site, Ottawa County, Mining Waste Fact Sheet on June 28, Mix Asphalt for Pavement Application: Oklahoma, June 23, 2005.). 2002 that identified the following as Final Report (August 2005)), the specific A number of commenters noted their acceptable uses of chat: (1) Applications gravity of the raw chat was found to be concern that existing regulations do not that bind (encapsulate) the chat into a 2.67, which is similar to some adequately control releases from these durable product (e.g., concrete and commonly used aggregates, such as types of facilities. As noted above, the asphalt), (2) applications that use the limestone and sandstone. Agency reviewed existing state and chat as a material for manufacturing a According to an ODEQ study Federal regulations of these facilities, safe product where all waste byproducts (Summary of Washed and Unwashed are properly disposed, and (3) Mining Tailings (Chat) from Two Piles at 2 While EPA recognizes that some chat is washed applications that use the chat as sub- the Tar Creek Superfund Site, Ottawa or sized prior to being used, today’s final rule does grade or base material for highways County Oklahoma, Revised June 2003), not require that chat be washed prior to its use. Therefore, imposing additional requirements for (concrete and asphalt) designed and chat consists of materials ranging in chat washing facilities would seem inappropriate. constructed to sustain heavy vehicular diameter from 15.875 mm (5⁄8 inch) to

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less than 0.075 mm (the size fraction 03) specify limits for the amount of concentration of lead in the raw chat that passes the No. 200 sieve). aggregate, on a percent mass basis, in ranged from 210 mg/kg to 4,980 mg/kg, Since raw chat is a crushed material hot mix asphalt and Portland cement with an average of 1,461 mg/kg; from mining operations, raw chat concrete according to aggregate size and cadmium ranged from 43.1 mg/kg to particles have fractured faces. Raw chat gradation. The aggregate sizes included 199.0 mg/kg, with an average of 94.0 also has numerous inter-granular voids in the AASHTO standards range from mg/kg; and zinc ranged from 10,200 mg/ in the loose aggregate form. The more .075 mm to 9.5 mm which is within the kg to 40,300 mg/kg, with an average of angular the aggregate the higher the range of particles found in raw chat. The 23,790 mg/kg. amount of voids. The uncompacted void AASHTO standards do not preclude the These studies show that as chat sizes content or the fine aggregate angularity use of fine chat particles in hot mix become smaller, their metals content of raw chat was found to be 46%. This asphalt or PCC. Depending on the increases. The cited Datin and Cates value exceeds the higher fine aggregate designated grading, however, AASHTO report, Summary of Washed and angularity required by most State DOTs. limits particles finer than sieve size #50 Unwashed Mining Tailings (Chat) from Raw chat is harder than some other in the range of 7% to 60% for aggregate Two Piles at the Tar Creek Superfund aggregates, such as limestone. The L.A. in asphalt. Fine aggregate for use in Site, Ottawa County Oklahoma, Revised abrasion value (determined by the Test concrete is limited by the States of June 2003, shows that total metals for Resistance to Degradation of Oklahoma and Missouri to between 5% testing of wet screened material (larger Aggregate by Abrasion and Impact in and 30% for particles less than sieve fractions) resulting from chat washing the Los Angeles Abrasion Machine) of size #50, while the corresponding have lead concentrations which range raw chat was found to be 18% which is values in Kansas are 7% to 30%. from 116 to 642 mg/kg, a range much lower than that of limestone (23%) used Therefore, chat used in asphalt or PCC lower than raw chat. Therefore, the data in the OU study. This makes chat a good must meet sizing specifications. This show that chat washing generates chat material in road surfaces since it does can be accomplished either by the raw aggregate (greater than sieve size #40) not wear down as fast as other chat meeting these specifications as is, with considerably lower metals aggregates. or mixing the raw chat with other concentrations than raw chat.3 Cubical shape is another desirable aggregates, by dry sizing, or by washing property of a good aggregate. The coarse (wet sizing) the chat. 6. What Are the Environmental and aggregate in raw chat (particles retained Current law requires that the chat Health Effects Associated With on a 4.75 mm (#4) sieve) has less than used as an aggregate in transportation Pollutants Released From Raw Chat? 5% flat or elongated particles. projects meet existing State Department The Tri-State Mining District includes Therefore, chat is viewed as a desirable of Transportation or Federal Highway four National Priorities List (NPL) aggregate material. Administration material specifications, Superfund sites that became State DOTs specify minimum which assure that the road surface, contaminated from the mining, milling, aggregate durability indices depending composed of hot, warm or cold mix smelting, and transportation of ore and on the type of road surface. In the OU asphalt, concrete or epoxy, is durable the management practices for chat. study, the aggregate durability index of and will not degrade prematurely. As These sites are located in Tar Creek in raw chat was found to be 78%. The discussed below, in light of these Ottawa County, Oklahoma, Cherokee insoluble residue of raw chat was found existing requirements, EPA concluded County in southeast Kansas, and in to be 98%. Oklahoma DOT has that it was not necessary to establish Jasper and Newton Counties in established a 40% insoluble any additional material specifications southwest Missouri. Superfund cleanup requirement for combined aggregates for the use of chat as an aggregate in activities related to the millions of tons used in a surface layer of hot mix federally funded transportation projects of mining waste that were deposited on asphalt, for the purpose of skid to ensure that when chat is used, it will the surface of the ground at these sites resistance. Surface treatments, like be safe and environmentally protective. have been designated as Operable Units microsurfacing, have higher insoluble Chemical Characteristics (OUs). OUs are groupings of individual residue requirements. Thus, the use of waste units at NPL sites based primarily insoluble aggregates like chat in hot mix Dames and Moore, 1993 and 1995; on geographic areas and common waste asphalt surface mixes and other surface Sampling and Metal Analysis of Chat sources. treatments can improve the skid Piles in the Tar Creek Superfund sites Certain uses of raw chat have caused resistance and safety of pavements. for the Oklahoma Department of threats to human health and the State DOTs also specify aggregate Environmental Quality, 2002, and Datin environment as a result of the requirements for hot mix asphalt and and Cates; Summary of Washed and concentrations of lead, cadmium and PCC. Most State DOTs, including Unwashed Mining Tailings (Chat) from zinc present in the chat.4 Evaluation of Kansas, Oklahoma and Missouri, have Two Piles at the Tar Creek Superfund adopted aggregate standards developed Site, Ottawa County Oklahoma, Revised 3 The Datin and Cates report also provides TCLP by the American Association of State June 2003, provide data on metals testing data that indicates the dry sieve sizes greater Highway and Transportation Officials concentrations in washed and than #40 would not exceed 5 mg/l, as well as data (AASHTO). According to AASHTO, the unwashed (or raw) chat. The Dames and on wet screened material (larger fractions) that also shows that the leaching potential of this material is 0.075 mm (#200) sieve size is the Moore study indicated that total lead below 5 mg/l (1.028 to 3.938 mg/l). 5 mg/l is the dividing line between sand-size concentrations in the raw chat ranged level of lead that defines whether a waste is particles and the finer sized particles from 100 mg/kg to 1,660 mg/kg, while hazardous under RCRA subtitle C. Thus, this is defined as silts and clays. These finer the Datin and Cates study noted that another indication that the larger sizes of chat have lower lead concentrations than do smaller sized particles often adhere to larger sand and mean total lead concentrations from the chat particles. (Note: As indicated earlier, chat is gravel particles and can adversely affect raw chat piles located throughout the considered a Bevill mining waste and is thus, the quality of hot mix asphalt and Tri-State area ranged between 476 to exempt from regulation under RCRA Subtitle C. Portland cement concrete. The 971 mg/kg. The AATA International, However, we are using the TCLP leachate value for lead simply as a comparative measure to evaluate AASHTO standards for Fine Aggregate Inc. December 2005; Draft: Remedial the leaching characteristics of chat.) for Bituminous Paving Mixtures (M 29– Investigation Report for Tar Creek OU4 4 Information regarding the specific threats to 03) and Fine Aggregate for PCC (M 6– RI/FS Program found that the human health from lead, cadmium and zinc can be

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raw chat also indicates that this waste identify acceptable versus unacceptable a. What Is the Final Action? in most unencapsulated uses has the uses of chat. Moreover, the Agency This final rule establishes criteria that potential to leach lead into the conducted interviews with companies chat used in transportation construction environment at levels which may cause which either used chat at that time or projects that are funded, wholly or in threats to humans (i.e. elevated blood had used chat previously. As part of this part, with Federal funds, must meet as lead concentrations in area children). effort, EPA representatives visited the a condition of receiving Federal Such threats have been fully Tri-State area to observe the condition transportation funding. Specifically, documented in Records of Decision of chat piles and confirm the location of those criteria define the following uses (RODs) for the OUs at these NPL sites chat washing and asphalt companies in to meet the statutory standards: chat (See Tri-State Mining District RODs in the area. Finally, the Agency has that is used in asphalt concrete, slurry the docket to this action). Copies of Site communicated with the tribal members seals, microsurfacing, or epoxy seals. Profiles and RODs can be searched at: in the Tri-State area to inform them The use of chat also meets EPA’s criteria http://www.epa.gov/superfund/sites/ about this action and seek information if it is used in PCC, stabilized road base, rods/index.htm. about current uses. granular road base, flowable fill, and in Based on our review of the reports IV. Rationale for This Rule and chip seals, provided that on a case-by- and interviews noted above, the Agency Response to Comments case basis: (1) Synthetic Precipitation published a Proposed Rule on April 4, Leaching Procedure (SPLP, EPA SW– A. What Was the Process EPA Used to 2006, in which we specifically solicited 846 Method 1312) tests are conducted Develop This Action? comment on a number of issues (see 64 on the proposed material and the In developing the proposed rule, the FR 16729). The Agency received leachate testing results show that Agency initially reviewed information approximately 20 comments on the concentrations in the leachate do not concerning the environmental effects of proposal. The Agency’s response to the exceed the National Primary Drinking the improper placement and disposal of comments received can be found in the Water Standards for lead and cadmium chat found in the RODs cited above for docket for this rule (see Response to and the fresh water chronic National the four NPL sites located in the Tri- Comments Document). In addition, the Recommended Water Quality Criterion State Mining District (Tar Creek, Jasper Agency conducted an external Peer for zinc of 120 ug/l; or (2) EPA (or a County, Cherokee County, Newton Review of the risk screen conducted for State environmental Agency, if it County). The Agency then reviewed the proposal. The Peer Review Panel chooses to do so) has determined, based reports which identified current or past submitted comments to the Agency and on a site-specific risk assessment and uses of chat, primarily studies prepared based on those comments, the Agency after notice and opportunity for public to support Oklahoma Governor conducted an additional risk screen of comment, that the releases from the chat Keating’s Taskforce (Governor Frank chat dusts from milling of road surfaces mixture in its proposed use will not Keating’s Tar Creek Superfund Task containing chat to determine if such an cause an exceedance of the National Force, Chat Usage Subcommittee Final activity presented a risk to human Primary Drinking Water Standards for Report, September 2000) and research health and the environment. Both the lead and cadmium in potential drinking on chat uses conducted by OU (A original risk screen and subsequent risk water sources and the fresh water Laboratory Study to Optimize the Use of evaluations are noted in the risk section chronic National Recommended Water Raw Chat in Hot Mix Asphalt for of the preamble to this final rule, and Quality Criterion for zinc of 120 ug/l in Pavement Application: Final Report are also in the Docket to this final rule. surface water. August 2005), as well as interviewed the The Agency also met with EPA has also established a criterion principal authors of the OU studies to representatives from the Department of that other chat uses will be safe and further evaluate their findings. Transportation to seek their input on a environmentally protective if they are Additionally, the Agency interviewed number of issues raised by commenters. part of, and otherwise authorized by a representatives from the Departments of Finally, the Agency consulted with the State or Federal response action Transportation in Oklahoma, Kansas, Tribal interests to assure that their undertaken in accordance with Federal and Missouri and met with the U.S. comments were fully understood by the or State environmental laws. Such Department of Transportation, Federal Agency. Based on the additional work response actions are undertaken with Highway Administration to discuss the noted above, as well as responding to consideration of site specific risk use of aggregate substitutes in road comments, the Agency is today assessments. surfaces and relied on the joint EPA/ finalizing the chat rule. In addition, for all chat used in FHWA document of the use of wastes in B. What Criteria Are EPA Establishing transportation construction projects that highway construction [User Guidelines for the Use of Chat? are funded, in whole or in part, using for Waste and Byproduct Material in Federal funds that is not subject to the Pavement Construction, FHWA, 1997 1. Transportation Construction Uses BIA Chat Use Certification requirements (http://www.rmrc.unh.edu/Partners/ Transportation construction uses of described in Section IV.B1, the Agency UserGuide/begin.htm)]. Furthermore, chat addressed in this final rule are is establishing a certification EPA met with the BIA to discuss BIA those construction activities that occur requirement similar to that required by requirements for the sale of chat on as part of transportation construction BIA. Specifically, any acquirer of the Tribal lands. The Agency also projects that are funded, wholly or in chat must submit a signed, written conducted a series of interviews with part, with Federal funds. The Agency certification that the chat will be used the environmental regulatory agencies has evaluated all the transportation in accordance with EPA’s criteria. The in the three involved States to further construction uses and has concluded certification will also include the that chat used in hot, warm, or cold mix location of origin of the chat and the found in the Agency for Toxic Substances and asphalt, slurry seals, microsurfacing and amount of chat acquired. Disease Registry (ATSDR) Fact Sheet for Lead, in epoxy seals, or other uses of chat that The certification must be provided to September 2005, the ASTDR Fact Sheet for Cadmium, June 1999 and the ATSDR Fact Sheet for are evaluated on a case-by-case basis the environmental regulatory agency in Zinc, September 1995, all of which are available in will be safe and environmentally the State where the chat is used, except the Docket to today’s final rule. protective. for chat acquired on lands administered

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by the BIA which is subject to the BIA The Agency relied on these findings as Contaminant Leaching from Secondary certification requirements. The Agency one of the principal sources of data Material Used in Roads, Defne S. Apul, is also requiring that if the acquirer sells supporting the use of chat in hot mix September 2004, the author noted that or otherwise transfers the chat, the new asphalt road surfaces and asphalt road if pavement is built on highly adsorbing owner of the chat must also submit a bases. The OU study also confirms the soils, the concentrations of leached signed, written certification as described findings of an earlier study conducted contaminants reaching groundwater are in this section. Most commenters did by the U.S. Army Corp of Engineers (Tar more than several orders of magnitude not support the certification Creek Superfund Site, Ottawa County, lower than the MCLs. requirement, because they believe that it Oklahoma, Final Summary Report: The ODEQ report entitled, Summary would increase the cost of using chat. Chat—Asphalt Paved Road Study of Washed and Unwashed Mining As noted earlier, BIA has established a USACE—Tulsa District, February 2000). Tailings (Chat) from Two Piles at the chat sales program affecting chat sales Specifically: Tar Creek Superfund Site, Ottawa from tribal lands. That program includes • Comparison of the Synthetic County Oklahoma, Revised June 2003, a certification requirement similar to Precipitation Leaching Procedure also evaluated leachate from asphalt that found in this rule. The Agency (SPLP) results of milled (weathered) containing chat removed from the Will believes that certification is necessary to chat asphalt samples in the OU study Rogers Turnpike located near Quapaw, assure that chat users comply with with the National Primary and Oklahoma. This evaluation was today’s criteria, as well as serving as a Secondary Drinking Water Standards conducted to determine if asphalt means to inform State environmental (www.epa.gov/safewater/mcl.html), concrete containing chat that is removed agencies about the use of chat in their without dilution and attenuation, show at the end of its useful life poses state. The Agency has reviewed the that milled surface and road base contamination threats from metals burden on industry to fill out and mixtures did not exceed the primary leaching into the environment. TCLP maintain the certification records and drinking water standard for lead 5 (0.015 results for lead ranged from less than does not find that such a requirement is mg/l) or cadmium (0.005 mg/l). The OU 0.050 mg/l to 0.221 mg/l. There are no burdensome. Moreover, the Agency results also show that milled asphalt SPLP test data in this report. However, believes that the certification road bases and surfaces did not exceed based on best professional judgment and requirement will provide important the secondary drinking water standard review of TCLP versus SPLP results, information to state environmental for zinc (5 mg/l).6 EPA believes that if SPLP tests were agencies to ensure that the chat is used • The TCLP test was designed as a conducted, there would be a reduction as required under this rule. screening test to simulate leaching of in lead concentrations of approximately This rule also requires that chat users materials in a municipal solid waste one order of magnitude as compared to maintain records. The Agency is landfill. The SPLP test is also a the results of TCLP tests. Therefore, we requiring that the acquirer, or any other screening test to simulate leaching of believe that SPLP results would not person that receives a copy of the materials when exposed to acid rain. It exceed the MCL for lead. Based on these certification, maintain a copy of the is highly unlikely that road surfaces results, EPA does not believe the certification in its files for three years would be exposed to leaching disposal of chat asphalt should present following transmittal to the State conditions found in municipal solid risks to the environment. The Agency environmental regulatory agency. If the waste landfills. Therefore, the Agency sought comment on whether data was available which would further clarify use is based on a case-by-case basis, the believes that of these two tests, the SPLP whether the leachate potential from end acquirer must maintain copies of any tests are likely to better mimic the of life use of chat in asphalt presented SPLP leachate testing results or any site- leaching potential of such mixtures any threats. The Agency did not receive specific risk assessment for three years. when they are to be used in road any comments or information that construction. b. What is the rationale for the Rule? disproves the Agency’s contention that • The OU study tested unweathered The Agency is basing this action on it is unlikely that end of life chat asphalt and milled samples. The Agency our review of various studies and data will adversely affect the environment. believes milled samples represent worst that show that certain uses of chat are Finally, the Peer Review Panel that case scenarios because milling exposes safe and environmentally protective. reviewed and commented on the risk more surface area to leaching. • screen for the proposed rule concluded i. Hot Mix Asphalt In a dissertation submitted to the that the use of chat in hot mix asphalt There are a number of factors which University of New Hampshire titled, road surfaces and in asphalt road bases lead us to conclude that chat used in hot Contributions to Predicting are safe and environmentally protective. mix asphalt is safe and environmentally The Agency, therefore, concludes that 5 protective: The National Primary Drinking Water Regulations set a Maximum Contaminant Level the use of chat in hot mix asphalt for Several studies have been conducted Goal of zero and a Treatment Technique action pavement (which accounts for about on the use of chat in hot mix asphalt. level of 0.015mg/l for lead. 95% of the current chat usage), asphalt The most comprehensive study was 6 Several hot mix asphalt samples were also base, and asphalt sub base are safe and conducted by the OU School of Civil tested in the OU study using the Toxicity environmentally protective. EPA does Characteristic Leaching Procedure (TCLP). For Engineering and Environmental surface samples, TCLP average concentrations for not believe that it is necessary to Science. OU published their findings in lead ranged from <0.005 mg/l to a high of 0.46 establish specifications of what a report titled, A Laboratory Study to mg/l. TCLP average concentrations for cadmium constitutes ‘‘hot mix asphalt’’ because Optimize the Use of Raw Chat in Hot ranged from <0.010 mg/l to 0.223 mg/l and zinc transportation construction uses are concentration averages ranged from 11.3 mg/l to Mix Asphalt for Pavement Application: 28.53 mg/l. Road base samples usually have higher required to comply with Federal and Final Report (August 2005). OU tested metals concentrations than do surface samples. For State Department of Transportation the durability and leaching potential of road base samples, average TCLP lead material specifications. These a variety of mixtures of hot mix asphalt concentrations ranged from 0.069 mg/l to 2.008 specifications delineate requirements mg/l, while average TCLP cadmium concentrations with raw chat for road surfaces and for ranged from 0.011 mg/l to 0.087 mg/l and average which ensure that when chat is used in road bases. In addition, OU milled TCLP zinc concentrations ranged from 19.9 mg/l to hot mix asphalt, the resulting product (sawed) samples to simulate weathering. 41.33 mg/l. will be structurally stable. It is

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recommended that chat users first liquids and aggregate on the top surface chat is sold to companies which mix determine if the proposed use meets of roads. This ‘‘resurfacing’’ meets a chat with epoxy binders for use as an State or Federal DOT materials number of needs, including repairing anti-skid coating for highway bridges. specifications, since adherence to them fine fractures in the road surface, EPA evaluated the engineering is separately required under current extending the life of the road, and durability of these epoxies and found law. improving skid resistance. EPA that they are equal to or are more ii. Slurry Seal, Microsurfacing, Warm reviewed literature on these uses and durable than asphalt. FHWA also Mix Asphalt, Cold Mix Asphalt, and found that these uses have the same confirmed that the use of epoxies would Epoxy Seal engineering characteristics as hot mix encapsulate chat equally to the binding asphalt. EPA also met with the FHWA, found with asphalt, and thus, would While the proposal limited the use of U.S. DOT to determine if microsurfacing result in similar leach results. Based on chat as a direct ingredient in hot mix and slurry seals retard the leaching of this conclusion, the Agency today views asphalt (including use as road metals in the same manner as hot mix the use of chat in epoxy binders for anti- pavement, asphalt base and asphalt sub asphalt. FHWA indicated that slurry skid purposes as safe and base), many commenters requested that seals and microsurfacing would bind environmentally protective. the Agency expand the scope of the metals in the same manner as hot mix In conclusion, the use of chat in hot criterion to include other road surface asphalt and would result in similar mix asphalt, slurry seals, uses associated with asphalt that they leaching results. Based on this microsurfacing, warm mix asphalt, cold believed retard the leaching of metals in conclusion and our review of the mix asphalt, or epoxy seals in chat in the same manner as does hot literature, the Agency today views the transportation construction projects mix asphalt, including slurry seals, use of chat in slurry seals and funded, in whole or in part, with microsurfacing, cold mix asphalt, epoxy microsurfacing as safe and Federal funds is safe and seals and chip seals. Commenters did environmentally protective. environmentally protective. Such uses not provide data to support their • do not require approval from EPA prior assertions. The Agency reviewed As part of EPA’s discussions with published information regarding the FHWA, we also discussed the ability of to their use, as long as certification and binding and durability characteristics of warm mix asphalt and cold mix asphalt recordkeeping requirements are met. to encapsulate and bind chat. Warm mix these uses and found that, except for iii. Concrete, Flowable Fill, Granular asphalt is a combination of asphalt, chip seals, they would retard the Road Base, Stabilized Road Base and asphalt emulsions, paraffin or esterfied leaching of metals in the same manner Chip Seals and Conditions for Use as hot mix asphalt. To further confirm wax, and mineral additives that allow this information, we met with the materials to be worked at This rule regarding the use of chat in Department of Transportation officials temperatures much lower than hot mix concrete pavement has changed from to determine which of these asphalt. Cold mix asphalt is a that presented in the April 2006 applications, if any, do in fact combination of asphalt, petroleum proposal and this rule sets additional encapsulate chat similarly to hot mix liquids, soaps, and other chemicals requirements on chat used in PCC. In asphalt. Based on those discussions and which allow the materials to be worked particular, the proposed rule allowed our review of published information, with when cold. FHWA confirmed that chat used as an aggregate in PCC the Agency’s criteria includes the use of warm and cold mix asphalt would without any testing or other chat in slurry seals, microsurfacing, encapsulate chat in the same manner as requirements. The Agency proposed the warm mix asphalt, cold mix asphalt, hot mix asphalt, and thus, would likely use of chat in PCC based on the and epoxy seals as safe and result in similar leaching results. Based following data and information: environmentally protective in on Agency conversations with FHWA • An undated OU Surbec-Art transportation construction projects that and our review of the literature, the Environmental study 7 and a 2000 OU are carried out in whole, or in part, Agency also views the use of chat in study 8 conducted the only known using Federal funds, but does not warm and cold mix asphalt as safe and assessments of total metals content and include the use of chat in chip seals. environmentally protective. TCLP testing of concrete matrices mixed Specifically: • EPA also discussed the use of epoxy with raw chat. The 2000 OU results are • Slurry seals and microsurfacing binders on bridge decks with FHWA. also presented in the 2005 OU study. involve the application of a mixture of Commenters and one of the chat The results from those two studies are asphalt, chemical binders, petroleum washing companies noted that some presented in the following Table:

S1 S2 C40 Total TCLP Total TCLP Total TCLP (mg/kg) (mg/l) (mg/kg) (mg/l) (mg/kg) (mg/l)

Lead ...... 178 0.92 379 0.17 150 1 Cadmium ...... R 30 0.09 R 35 0.12 35 0.1 Zinc ...... 4200 0.23 4400 0.16 4100 ...... R rounded to nearest whole number.

• While not a direct measure of the in the Agency’s Final Best 1994 and Proposed Best Demonstrated leaching potential of chat contained in Demonstrated Available Technology Available Technology (BDAT) PCC, waste stabilization technologies (BDAT) Background Document for Background Document for Toxicity and their effectiveness are well defined Universal Standards, Volume A, July Characteristic Metal Wastes D004–D011,

7 Preliminary Report on the Findings of Mine Residual Materials from Ottawa County, 8 Development of Holistic Remediation Environmental and Engineering Tests Performed on Oklahoma. Alternatives for the Catholic 40 and Beaver Creek.

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July 1995. One of those technologies is conductivity,9) and initially thought weights. This additional material should stabilization or encapsulation of the that such designs in general retard the reduce the mobility of the metals. waste in a cement matrix, to reduce the movement of rainwater through However, the stabilized road base may mobility of the metals in the waste. That concrete and into groundwater. use cement or other materials in is, the metals are chemically bound into Commenters questioned this amounts corresponding to 4 to 6 percent a solid matrix that resists leaching when conclusion. As a result, the Agency met by weight which is less than that used water or a mild acid comes into contact with the FHWA to determine how in PCC. The commenters did not with the waste. The Agency evaluated extensively water flowed across and provide information to support this contaminant levels in unstabilized through concrete pavements. FHWA request. While some binding of metals indicated that there is considerable versus stabilized wastes to determine is likely to occur, the Agency does not water flow through concrete pavement the reduction in mobility of metals, have sufficient information to allow this either through flow out of the joints or including lead and cadmium, when use without additional information or cracks, or through flow from the setting additional conditions. those wastes were stabilized in a cement shoulders downward into the base. Finally, at proposal, the Agency did matrix. These results indicate that Based on Agency discussions with not include an evaluation of the use of stabilization with cement generally FHWA, the Agency no longer believes chat in chip seals. Commenters reduced lead and cadmium mobility by that such designs in general retard the requested that the rule allow the use of two to three orders of magnitude (see movement of rainwater through chat in chips seals. These commenters Table A4 of the July 1994 document concrete. did not, however, provide information cited above). Commenters also requested that the to support this request. Chip seals However, the Peer Reviewers and rule allow the use of chat in flowable involve application of an asphalt liquid commenters who reviewed and fill. However, commenters did not on top of an existing road surface. After commented on the risk screen analyses provide information to support this the application of the asphalt liquid, an to the proposed rule raised concerns request. While flowable fill involves the aggregate (such as chat) is placed on the with the lack of data presented on the use of a pozzolanic material (cement), asphalt liquid and may then be rolled stabilization of chat in concrete. the ability of flowable fill to bind chat into the liquid. It is possible that several Specifically, the Peer Reviewers is unclear because flowable fill uses applications can be applied. In some cement in amounts as little as 3 to 5 indicated that there were only three circumstances, the aggregate layer is percent by weight. Therefore, the samples analyzed and that given the coated with asphalt liquids. EPA met Agency does not have sufficient limited data, it was not possible for with the FHWA to determine if chip information to allow this use without them to determine if risks existed from seals were generally viewed as being additional information or setting able to retard the leaching of metals in the use of chat in concrete. While the additional conditions. Peer Reviewers noted that it was likely the same manner as hot mix asphalt. In addition, commenters requested FHWA indicated that under most that the concrete bound the metals in a that the rule allow the use of chat as circumstances, asphalt used in chip similar fashion as asphalt, they also did granular road base. Such bases are seals did not always fully coat chat not believe there was enough data or typically constructed by spreading particles, and chat could be released information to reach a definitive aggregates in thin layers and compacting into the environment. Given the conclusion. each layer to reduce the stress applied concerns raised by FHWA and the lack Some commenters also argued with to the sub grade layer and providing of data on this use, the Agency the lack of leaching data for chat in PCC drainage for the pavement structure. concludes that it does not have and questioned whether the Agency has The Agency acknowledges that some sufficient information to allow the use sufficient information to finalize the chat can meet state or Federal materials of chat in chip seals without additional proposal. Other commenters also noted specifications for this use. These information or setting additional that there were significant differences commenters did not, however, provide conditions. between stabilizing high metal bearing any information to support this request. A number of commenters also noted wastes with cement and the mixing of As noted above, some washed chat has that some washed chat does not test chat into PCC pavement. Commenters significantly lower lead concentrations hazardous under the TCLP and that indicated that from a risk standpoint, than raw chat. However, as FHWA restricting all uses of raw chat, or notes, highway designs retard some, but concrete road surfaces after aging encapsulated uses where leach data are not all of the water flowing across and 10 contain fine surface fractures that would not available, was overly restrictive. into ground water. Such water allow rain water to percolate through The Agency has reviewed the TCLP/ movement could leach metals from the SPLP test data of raw chat and the surface into groundwater. The chat road base into ground water. Agency acknowledges these differences. recognizes that some washed chat has Because the Agency did not receive significantly lower lead and zinc Commenters also noted that it was additional information on the leaching concentrations than raw chat. unlikely that chat would be used in characteristics of this use, the Agency is Nevertheless, the Agency remains concrete pavement since it can be a poor unable to allow it without additional concerned that the use of raw chat or performing aggregate when used in PCC information or setting additional chat mixed with other materials could due to potential alkali-silica reaction conditions. pose risks to human health and the (ASR) and freeze/thaw durability issues. Still other commenters requested that environment, based on the physical and This is the reason that chat is not an the rule allow the use of chat in chemical characteristics of the material, approved PCC aggregate by Oklahoma stabilized base. Stabilized base uses chat as well as the history of its use. DOT. At proposal, the Agency also mixed with cement or other pozzolanic evaluated highway design materials to increase their bearing 10 While the Agency is not requiring that chat be specifications; i.e., layering of washed or dry sized prior to being used, the rules 9 compacted material and the movement Acording to the Portland Cement Association, also do not prevent a person from washing or dry the hydraulic conductivity of a typical Portland sizing chat before it is used either directly or in of water through concrete (hydraulic cement concrete is 1 × 10¥1cm/sec. combination with another material.

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After careful evaluation of the for zinc of 120 µg/l11; or (2) EPA (or a chat tend to have a TCLP for lead of comments received and the report from State environmental Agency, if it greater than 5 mg/l, while larger the Peer Reviewers, the Agency believes chooses to do so) has determined, based particles in the raw chat tend to have a that the limited amount of leaching data on a site-specific risk assessment and TCLP for lead of less than 5 mg/l. While on chat used in PCC, flowable fill, after notice and opportunity for public the Agency acknowledges these results, granular road base, stabilized road base, comment, that the releases from the chat commenters did not provide and chip seals do not provide enough mixture in its proposed use will not information showing a lack of risks from support to determine that these uses of cause an exceedance of the National other uses of washed chat not covered chat will be safe and environmentally Primary Drinking Water Standards for by this rule. As a result, the Agency is unable to allow these other uses unless protective. lead and cadmium in potential drinking water sources and the fresh water the user can show the use is protective In the proposal, the Agency requested chronic National Recommended Water through a case-by-case demonstration as comment on whether there was a need Quality Criterion for zinc of 120 µg/l in discussed previously. for leachate testing of chat used in hot surface water. v. Use of the SPLP Versus the TCLP mix asphalt or in PCC (see 54 FR If a chat user chooses to conduct SPLP 16738). Most commenters noted that the leachate testing and the results indicate EPA developed the TCLP as a tool to use of chat in hot mix asphalt was that they do not exceed the standards predict the leaching potential of protective and that a requirement of noted above, the user does not need to constituents from waste in a municipal additional SPLP testing was not submit the data to EPA (or a state, if it solid waste landfill. The TCLP method warranted, however, they did not chooses to do so) for review and is used to determine if a waste is provide information to support this approval. However, the regulation hazardous under 40 CFR 261.24 (see the Toxicity Characteristic rule, 55 FR position. Nevertheless, as already requires that the user submit a 46369; November 2, 1990). The TCLP is discussed, the Agency believes there are certification statement to the environmental regulatory agency in the also used in listing hazardous wastes to sufficient data, particularly that estimate leachate concentrations for use provided in the 2005 OU study, to State where the chat is acquired and maintain copies of the SPLP testing in groundwater modeling (for example, support its finding that chat used in hot see the petroleum listing, 63 FR 42110, mix asphalt, as well as warm mix results for a period of three years. If a chat user chooses to prepare a site August 6, 1998). The TCLP leaching asphalt, cold mix asphalt, slurry seals, specific risk assessment, the assessment solution contains acetic acid that is microsurfacing, and in epoxy seals will must be submitted to EPA, or the State adjusted to a pH of 4.93 or 2.88, be safe and environmentally protective environmental agency, at the State’s depending on the acidity of the waste without the need for further leachate option, prior to use. EPA or the State sample. testing. environmental agency will review the On the other hand, EPA developed Other commenters, while they did not site-specific risk assessment and the SPLP as a method to predict the call for specific leachate testing of chat determine, after notice and comment, if leaching from wastes or soils under exposure to the slightly acidic, dilute used in PCC, did raise concerns as to the use is safe and environmentally solution generated by normal rainfall. whether there were sufficient data to protective (see Section iii c below). The SPLP test uses a leach solution After EPA or the State makes its reach the conclusion that chat used in which mimics acid rain, while the TCLP determination, the user will still be PCC or other uses was protective. The uses a leach solution which mimics required to meet the certification and Agency agrees that insufficient data acids formed in municipal landfills. In recordkeeping requirements described exist to conclude that the use of chat in past actions, EPA has recognized that in Section IV. B. 1. of this final rule. PCC would be safe and protective. the TCLP’s use of organic acids may not Therefore, the Agency has concluded iv. Sizing of Chat Prior to Use be appropriate for disposal scenarios that additional information, either Finally, this final rule is not requiring that do not involve municipal landfills. through the use of SPLP testing or that chat be sized before it is used For example, in the proposed rule for through a site-specific risk assessment, because chat used in transportation management and disposal of lead-based is necessary to be able to conclude that construction projects must meet paint debris, EPA used the SPLP to the use of chat in PCC, as well as material specification standards assess leaching from landfills that do flowable fill, granular road base, established by either the State or not accept municipal wastes (see 63 FR stabilized road base, and chip seals Federal DOT. Those specifications set 70189; December 18, 1998). Similarly, would meet the statutory standards. their own size standards which can be EPA utilized the SPLP in screening low Specifically, EPA has established a met in a variety of ways, such as by hazard wastes as part of its 1989 Bevill criterion defining the use of chat in sizing chat or by blending chat with determination (see 54 FR 36592; PCC, flowable fill, granular road base, other sized aggregate. Since existing September 1, 1989). The use of chat in stabilized road base, and chip seals as specifications address the sizing issue, transportation construction projects safe and environmentally protective if, this rule need not do so. However, some would preclude chat from being on a case-by case basis, either: (1) commenters recommended that the exposed to the conditions found in municipal landfills. Chat used in Synthetic Precipitation Leaching Agency allow any use of sized chat transportation construction projects Procedure (SPLP, EPA SW–846 Method since it has lower lead concentrations will, however, be exposed to rainfall 1312) tests are conducted on the than raw chat. Studies of the lead concentrations found in raw chat piles that then enters the groundwater. proposed material and the leachate In determining which leach test to indicate that those concentrations vary testing results show that concentrations require, the Agency believes that the from pile to pile. Data indicates that in the leachate do not exceed the SPLP is the more appropriate test. As particles finer than sieve size #40 in raw National Primary Drinking Water stated previously, the TCLP was Standards for lead and cadmium and 11 designed as a screening test to simulate the fresh water chronic National It should be noted that this case-by-case showing does not require public notice and the leaching potential of wastes in Recommended Water Quality Criterion comment. municipal solid waste landfills. Since it

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is highly unlikely that road surfaces of concern is lead. The 2005 OU studies criteria were established. The Agency would be exposed to leaching on the use of chat in asphalt also received only one comment on this conditions found in municipal landfills, indicated that lead, cadmium and zinc issue. The commenter suggested that to and because the SPLP test is a more are the principle heavy metals of assess surface water quality, a DAF of likely scenario that would simulate the concern in chat. Those conclusions are 100 times the Water Quality Criteria be leaching potential of metals in chat used based on review of a series of studies used, while for groundwater no DAF be in transportation construction projects, which evaluated the metals used and reliance should be directly on we are requiring that if chat is to be used concentrations in raw chat piles. They the primary MCLs. This rule is not in PCC, granular road base, flowable fill, are also the criteria that EPA used in establishing DAFs due to the lack of stabilized road base or chip seals, the determining that chat used in hot mix data the Agency has regarding the user make a case-by-case demonstration asphalt is safe and environmentally leachate potential for uses requiring using the SPLP test. protective. SPLP testing, a lack of data to properly RODs also show that runoff from chat establish DAFs which would assure that vi. Rationale for Setting National piles may be adversely affecting chat use is safe and environmentally Primary Drinking Water Standards biological resources in streams protective, and because the Agency did Versus National Recommended Water throughout the Tar Creek Superfund not use DAFs in evaluating the use of Quality Criteria, and Dilution and site. Agency review of the chat in hot mix asphalt. Therefore, we Attenuation Factors (DAFs) environmental impacts of zinc (see are requiring that chat used in PCC, Because the Agency is requiring ATSDR report on zinc) confirms that it granular road base, flowable fill, leachate testing if chat is to be used in can adversely affect aquatic species. stabilized road base or chip seals PCC, granular road base, flowable fill, Since the Agency agrees with the undergo SPLP testing prior to its use stabilized road base or chip seals, the commenter that aquatic life should be and the results compared to the Agency also must establish specific protected, the Agency has decided to National Primary Drinking Water numeric criteria. In the proposal, the use the freshwater chronic National Standards for lead and cadmium and Agency requested comment on this Recommended Water Quality Criteria the freshwater chronic National issue. Specifically, the Agency stated, for zinc of 120 µg/l. It should be pointed Recommended Water Quality Criteria ‘‘For example, the Agency could specify out that there is no National Primary for zinc of 120 µg/l, without DAFs. that the results of testing would need to Drinking Water standard for zinc and Again, if the test results do not exceed meet the Primary and Secondary that the National Secondary Drinking the National Primary Drinking Water Drinking Water Standards for lead, Water standard for zinc is a non- Standards for lead and cadmium and cadmium, and zinc. The Agency also enforceable guideline regulating the freshwater chronic National solicits comment on whether the contaminants that may cause cosmetic Recommended Water Quality Criteria leachate should be measured against the effects or aesthetic effects in drinking for zinc, the test results do not need to National Recommended Water Quality water. The Agency believes it is more be submitted to EPA or the State for Criteria which address acute and appropriate to use the National review and approval. chronic biological effects.’’ The Agency Recommended National Water Quality also requested comment on whether a Criteria for zinc since it addresses vii. Rationale for Use of Site-Specific Dilution and Attenuation Factor should aquatic toxicity, as opposed to the Risk Assessments be applied to reflect how contaminant National Secondary Drinking Water As noted above, a chat user can concentrations may change as they standard which addresses cosmetic and conduct SPLP testing prior to use in move through the environment (see 64 aesthetic effects. PCC, granular road base, flowable fill, FR 16738–39). The Agency received As noted above, other commenters stabilized road base or chip seals to only one comment on this issue. The stated that they did not believe leachate demonstrate, on a case-by-case basis, commenter suggested that SPLP results testing is necessary when chat is mixed that the use of chat in such uses are safe should be measured against state water with asphalt or concrete. They asserted and environmentally protective. If the quality standards for lead, cadmium and that such uses were safe and results of such testing exceed the zinc, and the Agency should use the environmentally protective. With standards noted above, the chat user chronic criteria for protection of aquatic respect to most uses of chat in asphalt; may still make another case-by-case life. i.e., hot mix asphalt, warm mix asphalt, showing by conducting a site-specific The Agency disagrees with the cold mix asphalt, slurry seals, and risk assessment. Our rationale for commenter that we should use the State microsurfacing, the Agency agrees with allowing chat uses based on site-specific water quality criteria instead of the the commenters. However, as stated risk assessments is to encourage greater National Primary Drinking Water previously, there is insufficient data or use of chat provided the uses are safe standards for lead and cadmium. State evidence that other uses of chat; e.g., in and protective. We believe site-specific water quality criteria are established for PCC, granular road base, flowable fill, risk assessments conducted according to the protection of aquatic life and human stabilized road base or chip seals are EPA guidelines referenced below will health in surface water for safe and protective. This final rule provide the necessary data to determine approximately 150 pollutants. National allows these uses of chat in whether a proposed use is safe and Primary Drinking Water standards transportation construction projects if protective. The Agency received protect public health by ensuring safe the user conducts SPLP testing and the comments on the April 4, 2006 proposal drinking water and protecting ground leachate does not exceed the National requesting that EPA allow these uses of water. EPA has selected the National Primary Drinking Water Standards for chat. Some commenters argued that Primary Drinking Water standard for lead and cadmium and the freshwater allowing these uses would encourage lead and cadmium since those standards chronic National Recommended Water greater use of chat and facilitate the are most protective of human health. Quality Criteria for zinc of 120 µg/l. elimination of chat piles. They also The Agency has selected these At proposal, the Agency also solicited suggested that these uses would be more standards for a variety of reasons. First, comment on whether Dilution and protective of human health and the review of the Tar Creek Superfund site Attenuation Factors (DAFs) should be environment than the chat piles, RODs indicated that one of the metals applied to the leachate criteria if such however, the commenters did not

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provide data or evidence to show that provide sufficient time for the public to this option during the comment period these uses are in fact safe and review and comment on the proposed with State environmental regulatory protective. Nevertheless, EPA agrees decision. For example, EPA provides agencies who indicated that they with the commenters that encouraging 45-days for public review and comment supported the ability to utilize chat as chat use, as long as uses are safe and of proposed permit decisions under the a result of their response actions. environmentally protective, would lead hazardous waste regulations. Such ix. Certification to a quicker drawdown of the chat piles timeframe may also be appropriate in and ultimately benefit the communities this case. States might achieve the same At proposal, the Agency noted that where the piles are located. As a result, level of public input by following a the rule should include a certification the use of chat in PCC, granular road similar approach. requirement. A number of commenters base, flowable fill, stabilized road base If a chat user decides to conduct a objected to this requirement since they or chip seals will be allowed in site-specific risk assessment, it is argued that this type of reporting would transportation construction projects if recommended that they consult with increase the cost of using chat and there is a demonstration through a site- EPA or the State environmental agency therefore discourage its use. The Agency specific risk assessment, as described to discus how best to conduct the risk noted at that time that the BIA had below, that the use is safe and assessment to reflect existing site established a similar certification environmentally protective. conditions and receptors. requirement for chat sold from lands Such risk assessments involve EPA has established guidelines on under their authority. analyses of how the leachate moves into how to conduct risk assessments. These The Agency does not agree that this surface or groundwater and whether guidelines were developed to help guide rule’s certification requirements will metals concentrations down gradient EPA scientists in assessing risks to place an undue financial burden on chat from the chat use location will exceed human health from chemicals or other users (see Economic impact section of relevant standards. Therefore, risk agents in the environment. They also this rule). In addition, the Agency assessments involve the modeling of inform EPA decision makers and the believes that the certification leachate in the environment and general public about these procedures. requirement is necessary to assure that findings of whether, after such When risk assessments are conducted, chat users comply with today’s action, movement, health or environmental we recommend that these guidance and that it is not used in a manner that based standards are exceeded. This type documents be utilized (see http:// would necessitate Federal or State of surface and groundwater modeling cfpub.epa.gov/ncea/cfm/nceaguid_ cleanup actions. The certification will involves analysis of the type and human.cfm). EPA’s Superfund program also serve as a means to inform State concentration of metals in the leachate has also developed guidance on how to environmental agencies about the use of and their mobility. A commenter noted conduct human health and ecological chat in their state. that the Agency should compare the risk assessments. Those guidance This final rule requires that chat users results of modeling of leachate documents can be accessed at: http:// must submit a signed, written movement in ground water against the www.epa.gov/oswer/riskassessment/ certification to the environmental National Primary Drinking Water superfund_hh_exposure.htm. regulatory agency in the State where the chat is to be used within 30 days of the standards as the basis in determining if viii. Uses Authorized by a State or date of acquisition. The certification a use is protective. We generally agree Federal Response Action with this position, as it applies to lead will contain the following information: and cadmium. However, in some cases, This rule also establishes a criterion location of origin of the chat, amount of drinking water standards may not be that other uses of chat in transportation chat acquired, and a Certification relevant for ground water, for example construction projects funded, in whole Statement that the chat used in this where it is already contaminated so that or in part, with Federal funds will be transportation project will meet the it is not suitable for drinking, and safe and environmentally protective if criteria established by this rule. If the controls are in place to prevent they are part of, and otherwise chat is sold or otherwise transferred to consumption. Also, where the ground authorized by, a State or Federal another party, the acquirer shall provide water drains into surface water, the response action undertaken in a copy of the certification to the new reviewing agency should consider the accordance with Federal or State owner of the chat. The new owner shall freshwater chronic Water Quality environmental laws. Such actions are submit a certification according to Criteria for zinc of 120 µg/l. undertaken with consideration of site- § 278.4(a)(1). The new certification EPA, or the State environmental specific risk assessments, which supersedes all previous certifications. agency, if the State chooses to do so, account for the full variety of conditions The acquirer of chat, and any other will determine whether the proposed at the site, such as existing person that receives the chat, will also use is safe and environmentally contamination in assessing risks to maintain copies of all of the following protective based on the information in human health and the environment. For for three years; (a) A copy of the the site-specific risk assessment. The example, Region 7 assessed the certification following transmittal to the agency conducting the evaluation may protectiveness of using unencapsulated State department(s) of the environment, request additional information from the chat as road base for a proposed and, as appropriate, (b) any SPLP testing chat user to assure that the risk highway bypass and, as a result of a site- results, or (c) any site specific risk assessment meets EPA or State criteria specific risk assessment, determined assessments. and there is sufficient information to that such use, compared to other determine if the proposed use is safe alternatives, was a more protective 2. Non-Transportation Uses—Cement and environmentally protective. action (Engineering/Cost Analysis— and Concrete Projects EPA, or the state if it chooses to do Highway 71, Jasper County, Missouri, Title VI of Section 6018 of the Safe, so, will solicit public input by a number USEPA Region 7, August 2000). Accountable, Flexible, and Efficient of means; for example, it can publish its This approach was included in the Transportation Equity Act of 2005 (HR proposed determinations in a local proposal and the Agency did not receive 3 or ‘‘the Act’’), amended Subtitle F of newspaper, prior to making a final any adverse comments on this the Solid Waste Disposal Act (42 U.S.C. determination. In addition, EPA will approach. The Agency also discussed 6961 et seq.) by adding Sec. 6006. This

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provision also requires the Agency to At proposal, the Agency sought available in the docket to this final rule), develop environmentally protective comment on whether it should place indicated that it had produced cement criteria for the safe use of chat in cement some restrictions on the use of chat in clinker in 2001–2003 using chat as a and concrete projects. However, these cement and concrete in non- silica substitute. According to Ash criteria are only guidance and are not transportation projects. The proposal Grove, the clinker produced with chat Federally enforceable since the Act offered a restriction that chat used in met American Society for Testing and requires only that transportation such non-transportation projects be Materials (ASTM) standards for clinker. construction projects funded, in whole limited to non-residential uses. The However, Ash Grove is no longer or in part, with Federal funds meet the Agency assessed information about producing cement with chat. The criteria established in this rule. potential exposure of metals in cement Agency also reviewed published data Non-transportation uses of chat and concrete containing chat when used and conducted interviews with chat include its use as a raw material in the for residential purposes and was unable sellers and State regulators and manufacture of cement and as an to find data on whether such use determined that chat is not currently aggregate in PCC. This final rule presented risks to human health or the being used in cement manufacturing or establishes criteria as guidance for chat environment. Due to the lack of in non-transportation PCC projects. used in cement and concrete for non- information, the Agency proposed to Pursuant to section 6006(a)(1) of the transportation, non-residential projects. limit potential exposures by limiting Act, the Agency reviewed the possible Specifically, chat used in cement and chat in cement and concrete to only use of chat as aggregate in concrete, and concrete in non-transportation non-residential uses. That is, the as it did in its transportation construction projects should only be guidance would allow, after SPLP construction projects evaluations, used in non-residential construction testing or site-specific risk assessment, concludes that certain non- projects, and for structural purposes if, chat in cement or concrete to be used in transportation uses of chat in concrete based on a case-by-case basis, a commercial and industrial uses. Some may be safe and environmentally protective. However, due to the lack of demonstration shows that the proposed commenters supported this limitation to data for non-transportation uses, use of chat is safe and environmentally non-residential uses to limit potential information is required that shows such protective. The remainder of this section human exposure to lead. Other uses are protective. Consequently, EPA discusses the approach and rationale for commenters requested that such uses recommends that using chat in cement the approach taken. also be allowed in residential structural uses. However, the Agency did not and concrete be allowed only if a case- a. What is our approach? receive data or information supporting by-case showing is made that shows this request. Considering the lack of such use is safe and environmentally Based on the lack of leaching data data, the range of risks related to the protective (see discussion under available on the use of chat in PCC, the residential use of chat in cement and concrete in transportation uses for Agency is establishing guidance that concrete remains largely unknown, and further details of the approach chat used in cement and concrete that there is the potential for these uses recommended and our rationale). To projects for non-transportation uses rely to be used for ‘‘sham recycling,’’ the meet this goal, the Agency recommends on the same approach taken for the Agency believes it is prudent to that such non-transportation uses of transportation use of chat used in PCC. maintain the non-residential restriction chat in cement and concrete projects be That is, for such uses, the Agency in our guidance, even though we limited to non-residential foundations, recommends that chat only be used in recommend in this rule that a case-by- slabs, concrete wall panels, retaining cement and concrete for non- case demonstration be made that such walls, commercial and industrial transportation, non-residential use is safe and environmentally parking areas and sidewalks. Other non- construction projects if, on a case-by- protective. residential uses also may be approved case basis, either: (1) Synthetic after a review of SPLP test data or a site- Precipitation Leaching Procedure (SPLP, b. What is the rationale for this specific risk assessment as described EPA SW–846 Method 1312) tests are guidance? throughout this final rule. As noted conducted on the proposed material and As noted previously, the Peer Review previously, we would not recommend the leachate testing results show that Panel that reviewed the risk screen that chat be used in residential settings concentrations in the leachate do not document and commenters to the (e.g., concrete countertops, sidewalks, exceed the National Primary Drinking proposed rule indicated that there was foundations, slabs, driveways, roads). Water Standards for lead and cadmium insufficient leachate data to characterize There were comments raising and the fresh water chronic National the risk from the use of chat in cement concerns about the possible exposure of Recommended Water Quality Criterion and concrete. Therefore, as we workers involved in non-transportation for zinc of 120 µg/l; or (2) EPA (or a discussed previously, this guidance construction projects to chat in cement State environmental Agency, if it recommends that for non-transportation or concrete. The Agency has reviewed chooses to do so) has determined, based construction projects, chat only be used the Occupational Safety and Health on a site-specific risk assessment and in cement and concrete for non- Administration (OSHA) standards after notice and opportunity for public residential uses and only if a case-by- governing worker health and safety comment, that the releases from the chat case showing is made, based on SPLP related to the construction and mixture in its proposed use will not testing or a site-specific risk assessment, demolition of non-residential non- exceed the National Primary Drinking that the proposed use is safe and transportation uses of cement and Water Standards for lead and cadmium environmentally protective. concrete. Based on this review, the in drinking water sources and the fresh In the past, chat has been used in the Agency concludes that existing water chronic National Recommended manufacture of cement and used in standards require employers to provide Water Quality Criterion for zinc of 120 concrete for building foundations and adequate protection to workers from µg/l in surface water. It is recommended roads. Ash Grove Cement, in a dusts and metals and these standards that such a finding should be subject to communication with EPA (Memo to would extend to dusts and metals from public notice and comment before any File: Conversation with Ash Grove cement and concrete containing chat. It decision is final. Cement Regarding Use of Chat, which is should also be noted that when chat is

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used as an aggregate in concrete, worker The Agency also assessed current construction projects. However, such exposures would be limited since the regulation of dusts from milling and Federal funding does not include metals would already be bound. demolition. As part of this assessment, compensation for any response action as based on the Peer Review comments, defined in CERCLA section 101 (25), (42 C. Relationship of This Rule to Other U.S.C. Section 9601 (25)) involving chat Federal Regulations and Guidance the Agency conducted an additional risk screen from the milling of chat or other hazardous substances. For all uses of chat in transportation encapsulated in asphalt road surfaces. Finally, nothing in this rule shall construction projects carried out, in Based on this review and analyses, we affect existing RODs issued at EPA whole or in part, with Federal funds conclude that exposure to fine particles National Priorities List sites or Removal that is affected by this action, users released during milling and demolition Decisions associated with chat nor does must meet the relevant specifications operations would be limited to on-site the rule affect the determination of (e.g., for durability, granularity) workers (for the basis of this conclusion, liability as noted in CERCLA Sections established by the relevant state see Section V). The Occupational Safety 104, 106, and 107 or State corrective departments of transportation and the and Health Administration have action decisions. Federal Highway Administration established limits for worker exposure F. How Does This Rule Affect the Use (FHWA), prior to it being used in to the metals found in chat (29 CFR of Federal Funds Administered by the transportation projects. This final rule 1926.55—Safety and Health Regulations U.S. Department of Transportation for does not affect or change these for Construction, Gases, Vapors, Fumes, Transportation Construction Projects? specifications and requirements. Dusts, and Mists, available at: http:// The FHWA established minimum www.osha.gov/pls/oshaweb/ Through Title VI of Section 6018 of standards at 23 CFR Part 626 for owastand.display the Safe, Accountable, Flexible, and Highways (including references to the _standard✖;group?p_toc_ Efficient Transportation Equity Act of AASHTO Standard Specifications for level=1&p_part_number=1926). EPA has 2005 (HR 3 or ‘‘the Act’’), Congress Transportation Materials and Methods reviewed the OSHA standards (see amended Subtitle F of the Solid Waste of Sampling and Testing) and at 23 CFR Section V ‘‘What Are the Environmental Disposal Act (42 U.S.C. 6961 et seq.) by Part 633, Required Contract Provisions. and Health Impacts?’’ below) and adding Sec. 6006. This provision Aggregate requirements for Concrete concludes that the OSHA standards requires, among other things, for the include AASHTO–6, Fine Aggregate for require adequate worker health and Agency to develop environmentally Portland cement concrete and safety protection and thus, it is not protective criteria (including an AASHTO–80, Coarse Aggregates for necessary to promulgate additional evaluation of whether to establish a Portland cement concrete. Technical standards to address this issue. numerical standard for concentrations requirements for Hot Mix Asphalt of lead and other hazardous substances) include AASHTO–29, Fine Aggregate D. How Does this Rule Affect Chat Sales for the safe use of granular mine tailings For Bituminous Paving Mixtures and From Lands Administered by BIA or from the Tar Creek, Oklahoma Mining ASTM D6155, Standard Specification Directly From Tribal Lands? District, known as ‘‘chat,’’ in for Nontraditional Coarse Aggregates for BIA signed a Memorandum of transportation construction projects that Bituminous Paving Mixtures. FHWA Agreement with EPA Region 6 in are carried out, in whole or in part, National Highway Standard February 2005, designed to lead to the using Federal funds. Section 6006(a)(4) Specifications and Supplements is renewed sale of chat from Tribal lands requires that any such use meet EPA’s divided into topic areas corresponding and from lands administered by BIA. established criteria. to the divisions used in the ‘‘Guide EPA’s rule does not prevent chat sales, As noted above, the oversight of Specifications for Highway nor is it intended to delay such sales. Federal funds used in transportation is Construction’’ Manual published by the This rule is consistent with BIA’s chat the responsibility of the U.S. DOT. Its AASHTO and can be accessed at (http:// sales requirements. policies and procedures related to the fhwapap04.fhwa.dot.gov/nhswp/servlet/ The draft sales agreement prepared by management of those funds can be LookUpAgency? BIA requires the submittal of a found in the Code of Federal category=Standard+Specifications 12 certification which requires buyers of Regulations beginning at Title 23 Part +and+Supplements) . chat from tribal lands to use it in a In addition, ASTM Standard C–33 1(23 CFR 1). DOT requires that users of fashion which is deemed acceptable by restricts the amount of chert that may be Federal transportation funds must EPA. This rule requires the same mixed into PCC when the chert has a comply with applicable State or Federal certification for the use of non-tribal specific gravity (ratio of its density to regulations (23 CFR 1.9 and 1.36). DOT chat. the density of water) less than 2.4. Chat will include reference to compliance in the Tri-State area, a form of chert, has E. How Does This Rule Affect CERCLA with this rule in its guidance regarding a specific gravity greater than 2.4 and Liability, Records of Decision, and the awarding of federal transportation thus, would not be limited by this Response Actions? funding. standard. Chat does, however, have the If waste material, such as chat, is used V. Impacts of the Final Rule potential to be a poor performing in a way that creates a threat to human A. What Are the Potential aggregate when used in PCC due to its health or the environment, the owner of potential alkali-silica reactivity (ASR) 13. Environmental and Public Health the property and the party responsible Impacts From the Use of Chat in for creating the hazardous situation 12 Transportation Construction Projects? State highway construction specifications can could be liable for conducting or be found at the following internet web sites for For the proposed rule, we conducted Oklahoma (http://www.okladot.State.ok.us/ financing a response action under materials/700index.htm), Kansas (http:// CERCLA or State law. an assessment of the risks associated www.ksdot.org/burMatrRes/specification/ This rule establishes criteria for chat with the proposed use of chat. (See the default.asp), and Missouri (http://www.modot. preamble to the proposed rule at 71 FR State.mo.us/business/standards_and_specs/ use in federally funded transportation highwayspecs.htm). 16729, April 4, 2006 and the Report on 13 The Agency also reviewed studies on the and concludes that it can be used if appropriate Potential Risks Associated with the Use potential for alkali-silica reactions in chat concrete materials testing is conducted prior to use. of Chat from the Tri-State Mining Area

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in Transportation Projects (RTI, 2006) to human health and the environment. has revised the screening evaluation for more details on this assessment.) The leachate data representing the report to reflect those comments. The Data from studies conducted by OU binding capacity of the asphalt matrix— following discussion provides the present total metal concentrations and particularly in hot mix asphalt—show Agency’s response to the major leaching characteristics of (1) asphalt that the metals are tightly bound comments received from the peer concrete surface and base mix throughout the life of these products. reviewers. In addition, the revised formulations prior to roadway By inference and based on limited report and our response to comments application, (2) asphalt and stabilized data, it appears as though certain other are provided in the docket for this rule. base samples from roads currently in uses of chat, such as chat contained The following are the major issues use, (3) spent asphalt concrete samples PCC, flowable fill and stabilized base raised by the peer reviewers and the that were broken up and stored in piles, would have similar binding properties Agency’s responses. that would reduce the leaching of and (4) milled asphalt concrete samples (1) Potential Exposures During the metals. However, the available leachate intended to simulate weathering. These Milling Process Were Not Evaluated studies show that the metals are tightly data on these uses are very limited, and bound in the encapsulated matrix when may be a concern given the volume of The peer review commenters believe the total metals concentrations in chat that could be used in road that the lack of data on air emissions asphalt concrete samples are compared construction projects. from the grinding of the road surface to corresponding TCLP and SPLP In addition to these data deficiencies prior to resurfacing (‘‘milling’’) is a leachate concentrations. In particular, on specific uses, we identified other considerable source of uncertainty in for asphalt concrete surface mix and data gaps with respect to risk, including evaluating the potential risks of using stabilized road base uses for all four the milling of chat-containing asphalt chat in hot mix asphalt. They contend categories, the highest TCLP concrete. Milling of asphalt concrete that potential exposure to chat dust concentrations reported for lead and roadways during resurfacing would generated during the milling of asphalt cadmium were below the toxicity likely release to the air fine chat concrete roads, in addition to the characteristic (TC) regulatory limits (5 particles, which could lead to storage of milled materials, should be mg/L and 1 mg/L, respectively). In fact, contamination of residential soils and evaluated through pathways that when the metals were detected, in many homes located in the vicinity of a road consider both the inhalation of dust and cases, they were below the drinking construction project. Our assessment the incidental ingestion of metals water MCLs for lead and cadmium.14 concluded that these events would be contaminated soil from areas adjacent to For zinc, when detected, the TCLP episodic and infrequent (corresponding a roadway being milled. In addition, concentrations were found to be to approximately once over a 15 year peer review commenters noted two generally above the SMCL (5 mg/L) by lifespan of the asphalt), resulting in additional concerns associated with the up to a dilution and attenuation factor transitory exposures of relatively short milling process: (a) Addressing the of 16. As we have noted earlier, durations. The Agency assumed that the short-term exposure of lead to a however, we believe that use of the milling operations would be subject to developing fetus or young child during TCLP in evaluating the leaching regulations and best management critical and sensitive periods of growth, potential of encapsulated chat used in practices that would protect the health and (b) considering background levels of transportation construction projects is of workers. However, the data were not lead in the screening analysis. inappropriate since it does not available to evaluate the potential The Agency believes that the concerns accurately reflect the environmental exposures to nearby residents from chat raised by the peer reviewers are valid conditions of the management scenario. concrete particles blowing on to and conducted further study to address Rather, we believe the SPLP is a more residential areas. The assessment them. Specifically, we performed a appropriate test of the conditions concluded, however, that the screening analysis to evaluate exposures expected to lead to leaching of metals uncertainty of the exposures to residents through direct inhalation of air from this material. In addition, where from milling and management of emissions associated with milling and leachate testing was conducted using encapsulated chat products during road incidental ingestion by a child of the TCLP and SPLP methods, in all resurfacing could be an area for future metals-containing soils adjacent to a cases, the concentrations of the metals study. milled roadway. The assessment was were approximately an order-of- The Agency also considered in its designed to be conservative by selecting magnitude lower for the SPLP as assessment non-transportation uses and both a methodology and the use of high- compared to the TCLP. In most cases, the demolition of structures containing end parameters that result in upper- the SPLP concentrations were below the chat. We did not perform any bound estimates of hazard and risk. MCLs for lead and cadmium and were environmental modeling as with the Examples of high-end parameters used always below the SMCL for zinc. evaluation of transportation uses. in the screen are: (1) Total metals In summary, this assessment However, with existing fugitive dust concentrations for lead, zinc, and concluded that based on the available regulations and demolition practices, cadmium from the 2005 OU study reports and data reviewed, the use of we concluded that exposures from dust where chat comprised 40% of the chat as an aggregate for hot mix asphalt generated during the use or demolition aggregate used in hot mix asphalt, poses negligible risks to human health of chat in concrete buildings would not where typical hot surface mix includes through the groundwater exposure pose significant risks to human health. up to 20% chat, (2) the risk screen pathway, while some unencapsulated Concurrent with the public notice and utilized maximum, hourly air uses of chat may pose substantial risks comment period for the proposed rule, concentrations, rather than an average the Agency conducted an external peer concentration for inhalation exposure to 14 Comparisons of leachate concentrations with review of its assessment, Report on an adult and also to a child (using the drinking water criteria assume that no dilution or Potential Risks Associated with the Use Agency’s Integrated Exposure Uptake attenuation occurs before the dissolved metals of Chat from the Tri-State Mining Area Biokinetic Model for lead in Children reach a drinking water well or surface water. The Agency believes this worst case scenario is highly in Transportation Projects. Based on the (IEUBK), (3) the risk screen assumed the unlikely to occur in the area of the country where comments received from the public and placement of the milled asphalt the use of chat is occurring. from the Peer Reviewers, the Agency concrete storage pile on the side of a

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road closest to a receptor and locating a 10µg/dL blood-lead level. The blood- encapsulated forms will be closer to the receptors at the point of maximum lead levels predicted were 4.328µg/dL HMA than to unencapsulated forms, but off-site air concentration, (4) the risk and 4.473µg/dL, respectively, from the it is not possible to state how close it screen assumed exposure to chat dust lead levels we estimated in soil from will be to the HMA risks.’’ occurs 24 hours/day, for seven days a milling operations and for background The Agency generally agrees that data week, and (5) protective assumptions soils. The criterion of no more than a are insufficient to determine if the use were used with respect to emissions 5% chance of exceeding a 10µg/dL of specific products other than HMA factors for street sweeping and storage blood-lead level is the current Agency evaluated in the Report on Potential pile loading/unloading operations and guidance level. The Center for Disease Risks Associated with the Use of Chat meteorological conditions. Control considers a blood-lead level of from the Tri-State Mining Area in The results of this additional analysis 10µg/dL to be of concern for children. Transportation Projects are show that the milling of chat in asphalt A complete discussion of the environmentally safe. Consequently, as concrete roadways will not adversely screening analysis for the milling of discussed elsewhere in this preamble, affect public health. Specifically, for the asphalt concrete roads is available in the the Agency is allowing the use of chat direct inhalation pathway, the highest public docket supporting this final rule. in Portland cement concrete products cancer risk predicted for cadmium was In addition, the screening level analysis (and certain other uses) if a person can ¥ 2 × 10 9 (that is, 2 excess cases of was reviewed by selected Agency demonstrate, on a case-by-case basis, cancer per 1,000,000,000 people experts in the fields of emissions either that: (1) Synthetic Precipitation exposed to the estimated air modeling and risk assessment. Their Leaching Procedure (SPLP, EPA SW– concentration). The highest non-cancer comments are also in the docket 846 Method 1312) tests are conducted hazard quotient for cadmium was 0.004 supporting this final rule. Responses to on the proposed material and the (a hazard quotient is the ratio of the air their comments are reflected in the final leachate testing results show that concentration of cadmium and the level document for the screening analysis concentrations in the leachate do not at which no adverse effects are (RTI, 2007). exceed the National Primary Drinking expected; if the hazard quotient is less (2) Demolition Water Standards for lead and cadmium than 1, then no adverse health effects and the fresh water chronic National are expected as a result of exposure). The peer review commenters raised Recommended Water Quality Criterion For the direct ingestion of soil adjacent concerns that dusts resulting from the for zinc of 120 ug/l 15; or (2) EPA (or a to the roadway, the predicted demolition of chat contained in asphalt State environmental Agency, if it concentrations of metals in soil were concrete and PCC could pose a threat to chooses to do so) has determined, based 37.6 (Zn), 3.2 (Pb), and 0.2 (Cd) mg/kg human health. Road surfaces using chat on a site-specific risk assessment and soil, all of which are below (a) The may also be demolished at the end of after notice and opportunity for public generic EPA Superfund Soil Screening their useful life (like conventional comment, that the releases from the chat asphalt concrete, the useful life could be Levels (SSLs) for cadmium and zinc, (b) mixture in its proposed use will not on the order of 15 years). The the 400 ppm CERCLA/RCRA screening cause an exceedance of the National demolition of road surfaces containing level for lead in residential soils, and (c) Primary Drinking Water Standards for chat would likely involve low emissions the background soil concentrations for lead and cadmium in potential drinking of chat dust particles, theoretically with the western U.S. The comparison with water sources or the fresh water chronic subsequent dispersion and deposition to background concentrations was National Recommended Water Quality nearby soils. Based on discussions with intended to provide additional insight Criterion for zinc of 120 ug/l in surface demolition contractors, it is apparent into the contribution to the current water. environmental ‘‘burden’’ of these metals that dusts from such demolitions are We believe this approach directly in the area in which chat-containing regulated under the State fugitive dust addresses the Peer Review commenters surface mixes could be used. A soil regulations. Exposure to such dusts concerns, while at the same time allow concentration below background levels probably would be limited to workers persons to proceed with the use of chat suggests that the milling operations will because existing State regulations in other products or activities if they not result in significant increases in the require that dusts be contained within can make the relevant showing. zinc, lead, and cadmium concentrations the area of origin. As noted elsewhere in in soil. this preamble, OSHA has established (4) Non-Transportation Risks- In order to address the concern of lead exposure limits for dusts and metals for Demolition exposures for children, the Agency used workers in construction and demolition. Peer review commenters requested the IEUBK model, which includes Most, if not all, road concrete which is that the Agency carefully review multiple pathways of lead exposures demolished is reused as fill or as road whether existing regulations adequately (for example, inhalation of dust, base. Based on the information noted protect workers from the demolition of ingestion of soil and dust, and dietary above, the Agency concludes that chat encapsulated materials. To address intake), and is considered a good exposure to chat in demolished that request, this assessment considered predictor of potential long-term blood- pavement does not present a significant how dust generated during the lead levels for children in residential risk. demolition of nonresidential buildings settings. We ran the IEUBK model using which used chat encapsulated in PCC the maximum air concentration (3) Data Are Insufficient To Establish Risks From the Use of Encapsulated would occur and whether regulations estimated from the direct inhalation address worker exposure.16 The Agency analysis, and both the soil concentration Chat in Products Other Than Hot Mix Asphalt we estimated due to milling operations 15 It should be noted that this case-by-case and a separate analysis using a The peer review commenters noted showing does not require public notice and background soil concentration for lead that there is very limited information to comment. reported in the western U.S. In both determine whether the use of chat in 16 The American National Standards Institute ANSI–A 10.6–1983 American National Standard for cases, a hypothetical child exposed to products other than HMA poses low Demolition Operations Safety Requirements set the estimated air and soil levels resulted risk. One of the Peer Reviewers stated minimum dust exposure limits and recommends in a chance of less than 5% of exceeding that it is ‘‘likely that the risk from other Continued

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assumed that such buildings would be OSHA has also established worker in Oklahoma, Missouri and Kansas. (See demolished once every 30 years, based health and safety standards specific to Section III for a discussion of EPA’s on the Internal Revenue Service building demolition in 29 CFR 1926 evaluation of the states regulatory allowable straight-line depreciation for Subpart T. These standards require an programs to control air and water non-residential real property of 31.5 engineering survey of the building prior releases at asphalt plants, PCC plants years. The Agency determined that to demolition to identify any risks and and chat washing facilities.) demolition practices, as noted by the implementation of project wide dust National Association of Demolition controls. The standards also require (6) Ecological Risks Contractors, would generally generate compliance with NIOSH respirable dust The peer review commenters noted dusts for periods rarely in excess of 20– standards which essentially require the that there should be a more 30 minutes when buildings are use of respirators, if standards noted in comprehensive analysis of the imploded. Furthermore, the Agency has 29 CFR 1910 are exceeded. Based on the ecological risks from chat use. reviewed the fugitive dust demolition Agency’s review of the OSHA standards, Environmental quality information regulations in Oklahoma, Missouri, and we conclude that these regulations presented in several studies indicated Kansas and found that building provide adequate protection to onsite that damages to streams had been demolition requires a general fugitive demolition workers. dust permit that mandates that One of the Peer Reviewers noted that documented for the Tri-State Mining demolition related dusts be contained NIOSH and OSHA standards may not Area; however, these studies did not within the property line (most often apply to county or State highway address encapsulated chat uses, but through the use of water sprays). Based workers and that those safeguards were from multiple sources of on this information, the Agency would not actually protect workers contamination associated with lead and concludes that dusts from the potentially exposed to dusts during zinc mining, including subsurface demolition of nonresidential buildings milling or demolition. The Agency has sources (flooded mine shafts), surface with chat contained in PCC are not reviewed State and Federal worker sources (chat piles, tailing sites), and likely to present a significant threat to health and safety laws as they apply to smelting operations. SPLP analyses for human health. demolition, and does not agree that chat encapsulated in hot mix asphalt Even if chat metal levels do not trigger there is insufficient regulatory (OU, 2005) shows that zinc OSHA requirements, however, other protection of workers. The commenter concentrations, when detected, were OSHA controls would still be utilized to also noted that existing regulations are below EPA’s National Recommended address worker health risks from not being enforced. While the Agency Water Quality Criteria (http:// exposure to fine particulates, which has not been able to determine whether www.epa.gov/waterscience/criteria/ indirectly addresses the issues this allegation is accurate, it is beyond wqcriteria.html) for the protection of associated with chat. In particular, the scope of this effort to determine aquatic life. This study did not find demolition of concrete structures is whether these regulations are being detectable levels of lead or cadmium in known to produce extremely fine enforced by the states or others. any leachate using the SPLP method. We do not foresee that environmental particles of crystalline silica. Breathing (5) The Risk From the Generation of crystalline silica dust can lead to conditions could occur where metals Chat Fines During Processing Was Not from chat used in transportation silicosis, a commonly known health Evaluated hazard which has been associated projects, that are funded, in whole or in historically with the inhalation of silica- The peer review commenters noted part, using Federal funds, would reach containing dusts. Silicosis is a lung that the rule should include criteria surface waters at levels of concern either disease which can be progressive and addressing the handling and disposal of through run-off to nearby soils, which disabling; it can lead to death. The chat fines resulting from the wet sizing would have subsequent attenuation OSHA standards for exposure to dust, of chat. First, the Agency would note before reaching surface waters, or via (29 CFR 1926.55) prohibit employee that this final rule does not require that the groundwater pathway, which would exposure to any material at the raw chat be washed or sized prior have additional attenuation and dilution concentrations above those specified in to being used. Therefore, any fines that in groundwater before reaching nearby the ‘‘Threshold Limit Values of are generated would not be the result of receiving waters. this rule. Nevertheless, the Agency Airborne Contaminants for 1970.’’ B. What Are the Economic Impacts? OSHA has established for crystalline evaluated the risks from exposure to silica dust a Permissible Exposure Level fines from chat washing facilities during This Part summarizes projected cost which is the maximum amount to Superfund Site investigations at the impacts, economic impacts, and benefits NPL Sites in the Tri-State Mining which workers may be exposed during associated with this final rule. A brief District. The information we have shows an 8-hour work shift. NIOSH has market profile is first discussed, that fines may release metals into the recommended an exposure limit of 0.05 followed by specification of the environment. However, the release of mg/m3 as a time-weighted average for economic baseline. Costs and economic these metals can be effectively up to a 10-hour workday during a 40- impacts are next discussed. These controlled by EPA through its oversight hour workweek. Although the Agency estimates are presented on an authority of the Tar Creek Superfund has no reason to believe that chat annualized basis. Finally, this Part site. In addition, we believe that most contained in PCC would increase the presents a qualitative discussion of chat washing will continue to be levels of fine particulates, including potential benefits associated with this conducted at the two known crystalline silica, we believe the OSHA/ final rule. commercial chat washing facilities NIOSH standards will provide adequate located within the Superfund Sites. protection to workers from potential 1. Chat Market Profile However, to the extent that other chat exposure. washing facilities become operational, Chat is a byproduct of mining and milling operations that has been that no worker shall be permitted in any area that we also believe that they will be can adversely affect them when demolition adequately controlled based on our exempted from regulation as a operations are being performed. review of the air and water regulations ‘‘hazardous waste’’ under Subtitle C of

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RCRA.17 However, it can pose risks to beyond current market limits. Within document is available in the docket human health and the environment. the current market, rates of growth for established for this final rule. Currently, chat in the Tri-State Mining new roads are modest (estimated at less 3. Economic Impacts District is found in above-ground piles than 2 percent per year) and population of varying sizes, reflecting the different densities are low in areas where the use Our findings indicate that this final types of mining operations that occurred of chat is economically competitive. We rule is unlikely to result in any in each area. The total quantity of chat are not able to determine what, if any, significant economic impacts to chat in the Tri-State Mining District is impact this rule may have on chat suppliers or users in the short term. roughly 100 million tons. A small demand for use in asphalt concrete. However, the potential impact of this percentage of this total is currently used Significant chat use in other rule on chat use over the next ten to annually in road building or other applications, such as Portland cement twenty years is undetermined. As a beneficial use projects. concrete, does not appear to be viable at result, it is not possible to estimate A small, but well-established market this time either for economic or other regional or local economic impacts over for chat in transportation applications reasons. the long term. currently exists. The preparation and 4. Benefits use of chat is dominated by a few small 2. Cost Impacts operations that purchase, process, and The value of any regulatory action is This final rule is designed to establish sell chat to area hot mix asphalt plants traditionally measured by the net standards intended to clarify and for use as an aggregate. Approximately change in social welfare that it facilitate the safe use of chat in 95 percent of all current chat use is for generates. Our economic assessment transportation applications carried out, aggregate in hot mix asphalt. A wide conducted in support of this rule in whole or in part, with Federal funds. range of different projects comprise the evaluated compliance costs only. Social The social benefits of this action are remaining 5 percent.18 We have no costs are not assessed due to data related to reduced human health and evidence there is any current use of chat limitations and the lack of equilibrium environmental damage in the Tri-State in cement or Portland cement concrete. modeling capabilities associated with Mining District associated with the The demand for chat as aggregate in this industry. The data applied in this timely removal of chat from existing transportation uses is price sensitive analysis were the most recently piles. Should there be no accelerated and is limited by various technical and available at the time of the analysis. use of chat in transportation projects performance standards. However, Because our data and analytical above the current annual rate, human consistent demand exists as long as chat techniques were limited, the cost impact health and environmental benefits may can be provided at prices that are findings presented here should be be equivalent to those expected under a competitive with other sources of considered generalized estimates. no action baseline. Our cost analysis examined the aggregate. The key cost drivers for chat VI. State Authority include raw material costs, processing potential impact of the rule based on the and sizing, if conducted, and use of encapsulated chat that comes This final rule is promulgated under transportation. The current market price from the Tri-State Mining District. the authority of RCRA Section 6006. It for chat, and other forms of aggregate, is Ninety-five percent of all chat that is becomes effective in all relevant States approximately five dollars per ton. This used beneficially is used in hot mix on its effective date of September 18, estimate excludes transport cost, but asphalt transportation construction 2007; after that date, chat cannot be includes processing and sizing, even applications. Our cost analysis, used in federally funded transportation though such operations are not required therefore, focused on the use of chat as projects except in compliance with as part of this rule. aggregate in hot mix asphalt. Chat may today’s regulations, regardless of current A limited number of small companies also be used for a variety of non-asphalt State law. At the same time, nothing in act as brokers, processors and transportation and commercial building this rule restricts the authority of States, distributors (washers and haulers) of the products. under State law, to establish different chat in the Tri-State Mining District. However, available data appear to requirements or procedures for the use Chat haulers and washers buy chat from indicate that non-asphalt uses of chat of chat in federally funded several owners, each typically owning from the Tri-State area generally are not transportation projects. States are only a small amount of the total common either due to economics or a neither expected nor required to pick up quantity of chat. Chat is both privately lack of demand. this rule or to seek approval or and publicly owned, including chat Our analysis indicates that the authorization. piles located on land controlled by the incremental cost impacts associated Several provisions of this final rule Quapaw Tribe of Oklahoma. with this rule are approximately directly affect States. Specifically, Historical trends and information $210,000 per year. This estimate Section 278.3(b)(2) prohibits the use of from regional chat suppliers suggest that incorporates costs associated with chat in Portland cement concrete or in the demand for chat for transportation- certification, recordkeeping and certain other uses (in Federally funded related uses is unlikely to change reporting. Sampling and analysis costs, transportation projects,) unless significantly over the next couple of if any, for use in concrete pavement and approved by EPA or the State decades. The currently viable market is nonresidential concrete are not included environmental agency, if the State well defined and transportation costs because the Agency is unaware of any chooses to be the approving entity, make chat economically unattractive such use currently taking place and where the use will occur. While the rule further believes that such use, if it would allow either EPA or the relevant 17 See 40 CFR 261.4(b)(7). occurs, will be minimal. Additional State agency to approve such uses, EPA 18 Current other uses of chat include: component ‘‘expanded use’’ scenarios are examined ordinarily expects to defer to the State in anti-skid surfaces, sand blasting material, and in the economic support document where a potential chat user requests waste water treatment filters. The Agency believes prepared for this action: Assessment of approval. EPA would only expect to act that additional evaluation, outside the scope of this rule, is necessary to determine the environmental the Potential Costs, Benefits, and Other where the State preferred not to, and in suitability of using chat as sand blasting or as filter Impacts of Chat Use in Transportation these cases, it would work in close media. Projects, December 18, 2006. This consultation with the State. In addition,

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Section 278.3(b)(3) provides that EPA or under part 3(f)(1) of the Order. In Since the burden associated with this a State, if it chooses to do so, may addition, this rule is not expected to rule is insignificant, a separate ICR is approve the use of chat authorized as adversely affect in a material way the not necessary. The burden is projected part of a State or Federal response economy, a sector of the economy, to affect a limited number of entities. action undertaken pursuant to productivity, competition, jobs, the These include: three State governments applicable Federal or State environment, public health or safety, or (Oklahoma, Missouri, Kansas), one environmental laws. In such cases, EPA State, local, or tribal governments or Native American tribe (Quapaw Tribe of expects that the State would rely on its communities. Thus, this rule is not Oklahoma), and no more than fifty sand existing cleanup regulations and considered to be an economically and gravel companies located in the procedures in approving the use. significant action. States of Oklahoma, Missouri, and VII. Statutory and Executive Order We have prepared an economic Kansas (NAICS 4233202). Reviews assessment in support of this rule. This The burden on respondents is document is entitled: Assessment of the estimated at 3,800 hours per year, with A. Executive Order 12866: Regulatory Potential Costs, Benefits, and Other a total annual cost ranging from Planning and Review Impacts of Chat Use in Transportation $152,000 to $228,000, depending upon Under Executive Order (EO) 12866 Projects, December 18, 2006. Findings labor costs. Respondents would also (58 FR 51735, October 4, 1993), this from this document are briefly need to read and understand the rule. action is a ‘‘significant regulatory summarized under Section V. B above. The burden associated with reviewing the regulation is estimated at 100 hours, action.’’ This action may raise novel B. Paperwork Reduction Act legal or policy issues [3(f)(4)] arising out with a total annual cost estimated at of legal mandates, the President’s The information collection $5,000. The burden on governmental priorities, or the principles set forth in requirements in this rule have been entities is estimated at 380 hours per the Executive Order. Accordingly, EPA submitted for approval to OMB under year, with total costs ranging from submitted this action to the Office of the Paperwork Reduction Act, 44 U.S.C. $15,200 to $22,800 per year. These Management and Budget (OMB) for 3501 et seq. via this preamble instead of estimates do not include costs related to review under EO 12866. Any changes a separate Information Collection a user making a case-by-case showing to made in response to OMB Request (ICR) document. EPA or a State environmental agency recommendations have been The certification, reporting, and that a proposed use is safe and documented in the docket for this record keeping required under this rule environmentally protective. Those costs action. is necessary to ensure the safe use of the are not included because the Agency This rule is projected to result in cost product containing chat. Certification, believes that there will be very few such impacts of approximately $210,000 per recordkeeping and reporting requests made in any one year. All these year. This figure is significantly below requirements under this rule are not estimates are summarized in the Table the $100 million threshold established subject to confidentiality restrictions. below.

SUMMARY OF ESTIMATED BURDEN TO RESPONDENTS AND GOVERNMENT

Estimated Number of Estimated number of Estimated Activity hours per cost per affected total annual Estimated total project hour projects per burden annual cost year (hours)

Burden to Respondents: Certification, Reporting, Record keeping ...... 5.0 $40–$60 760 3,800 $152,000–$228,000 Burden to Government (affected States): Certification review and recordkeeping ...... 0.5 40–60 760 380 15,200–22,800 Note: The additional burden to respondents associated with reading and understanding the regulation is estimated at 100 hours, with a total average annual cost estimated at $5,000.

Burden means the total time, effort, or information; and transmit or otherwise Administrative Procedure Act, or any financial resources expended by persons disclose the information. other statute. This analysis must be to generate, maintain, retain, or disclose An agency may not conduct or completed unless the agency is able to or provide information to or for a sponsor, and a person is not required to certify that the rule will not have a governmental entity. This includes the respond to a collection of information significant economic impact on a time needed to review instructions; unless it displays a currently valid OMB substantial number of small entities. develop, acquire, install, and utilize control number. The OMB control Small entities include small businesses, technology and systems for the purposes numbers for EPA’s regulations in 40 small not-for-profit enterprises, and of collecting, validating, and verifying CFR are listed in 40 CFR part 9. small governmental jurisdictions. information, processing and C. Regulatory Flexibility Act The RFA provides default definitions maintaining information, and disclosing The Regulatory Flexibility Act (RFA), for each type of small entity. Small and providing information; adjust the as amended by the Small Business entities are defined as: (1) A small existing ways to comply with any Regulatory Enforcement Fairness Act of business as defined by the Small previously applicable instructions and 1996 (SBREFA), 5 U.S.C. 601 et seq., Business Administration’s (SBA) requirements; train personnel to be able generally requires an agency to prepare regulations at 13 CFR 121.201; (2) a to respond to a collection of a regulatory flexibility analysis of any small governmental jurisdiction that is a information; search data sources; rule subject to notice and comment government of a city, county, town, complete and review the collection of rulemaking requirements under the school district or special district with a

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population of less than 50,000; and (3) than the least costly, most cost-effective Kansas, Missouri, and Oklahoma a small organization that is any not-for- or least burdensome alternative if the provided valuable input. profit enterprise which is independently Administrator publishes with the final F. Executive Order 13175: Consultation owned and operated and is not rule an explanation why that alternative and Coordination With Indian Tribal dominant in its field. was not adopted. Before EPA establishes Governments After considering the economic any regulatory requirements that may impacts of today’s final rule on small significantly or uniquely affect small Executive Order 13175: Consultation entities, I certify that this action will not governments, including tribal and Coordination with Indian Tribal have a significant economic impact on governments, it must have developed Governments (65 FR 67249, November a substantial number of small entities. under section 203 of the UMRA a small 9, 2000), requires EPA to develop an This section summarizes whether the government agency plan. The plan must accountable process to ensure rule establishing criteria for the use of provide for notifying potentially ‘‘meaningful and timely input by tribal chat in transportation construction affected small governments, enabling officials in the development of projects, carried out, in whole or in part, officials of affected small governments regulatory policies that have tribal with Federal funds, may adversely to have meaningful and timely input in implications.’’ ‘‘Policies that have tribal impact small entities. The market for the development of EPA regulatory implications’’ is defined in the both chat and ‘‘virgin’’ aggregate in hot proposals with significant Federal Executive Order to include regulations mix asphalt production is mature and intergovernmental mandates, and that have substantial direct effects on dominated by small businesses. In order informing, educating, and advising one or more Indian tribes, on the to have a significant economic impact small governments on compliance with relationship between the Federal on a substantial number of small the regulatory requirements. Government and Indian tribes, or on the businesses, the criteria for chat use This final rule contains no Federal distribution of power and would have to cause a significant mandates (under the regulatory responsibilities between the Federal decrease in the quantity of chat that is provisions of Title II of the UMRA) that Government and Indian tribes. used in highway applications. Our may result in expenditures of $100 Under Executive Order 13175, EPA analysis indicates that the current million or more for State, local, and may not, to the extent practicable and market area is not likely to experience tribal governments, in the aggregate, or permitted by law, issue a regulation that any significant change in the demand the private sector in any one year. The has tribal implications, that imposes for chat as a result of the rule. That is, total costs of this action are estimated at substantial direct compliance costs for while many chat processors, $0.21 million per year. which the Federal government does not distributors, and users of chat are small provide funds to pay such costs, and E. Executive Order 13132: Federalism businesses, significant economic that is not required by statute, unless impacts on a substantial number of Executive Order 13132, entitled EPA consults with tribal officials early these entities are not expected. ‘‘Federalism’’ (64 FR 43255, August 10, in the process of developing the The reader is encouraged to review 1999), requires EPA to develop an regulation. Similarly, to the extent our regulatory flexibility screening accountable process to ensure practicable and permitted by law, EPA analysis prepared in support of this ‘‘meaningful and timely input by State may not issue a regulation that has tribal determination. This analysis is and local officials in the development of implications and that preempts tribal incorporated into the ‘‘Assessment’’ regulatory policies that have Federalism law unless EPA, among other things, document, as referenced above. implications.’’ ‘‘Policies that have consults with tribal officials early in the Federalism implications’’ is defined in process of developing the regulation. D. Unfunded Mandates Reform Act the Executive Order to include EPA has concluded that this rule does Title II of the Unfunded Mandates regulations that have ‘‘substantial direct not have tribal implications in that it Reform Act of 1995 (UMRA), Pub. L. effects on the States, on the relationship does not have substantial direct effects 104–4, establishes requirements for between the national government and as specified in the Executive Order. In Federal agencies to assess the effects of the States, or on the distribution of particular, EPA notes that this rule does their regulatory actions on State, local, power and responsibilities among the not impose substantial direct and tribal governments and the private various levels of government.’’ compliance costs or pre-empt tribal law. sector. Under section 202 of the UMRA, This rule does not have Federalism However, the Agency recognizes the EPA generally must prepare a written implications. It will not have substantial significant interest that some tribes have Statement, including a cost-benefit direct effects on the States, on the in this rule. Specifically, some chat analysis, for proposed and final rules relationship between the national piles are located on Indian country with ‘‘Federal mandates’’ that may government and the States, or on the lands. Allotted lands of the Quapaw result in expenditures to State, local, distribution of power and Tribe of Oklahoma (Quapaw Tribe) are and tribal governments, in the aggregate, responsibilities among the various estimated to contain about half of the 29 or to the private sector, of $100 million levels of government, as specified in chat piles located within the Picher or more in any one year. Before Executive Order 13132. The rule focuses Mining Field site. This rule is not promulgating an EPA rule for which a on establishing criteria for chat use in expected to significantly change the written Statement is needed, section 205 transportation construction projects, demand for, and income from, chat use. of the UMRA generally requires EPA to carried out, in whole or in part, with To the extent this rule encourages the identify and consider a reasonable Federal funds, without affecting the removal of chat from existing piles, number of regulatory alternatives and relationships between Federal and State there is likely to be an improvement to adopt the least costly, most cost- governments. Thus, Executive Order the environment and human health in effective or least burdensome alternative 13132 does not apply to this rule. these areas. that achieves the objectives of the rule. Although section 6 of Executive Order During the development of this final The provisions of section 205 do not 13132 does not apply to this rule, EPA rule, the Agency carefully reviewed apply when they are inconsistent with did consult with representatives of State comments submitted on the proposal by applicable law. Moreover, section 205 governments in developing this rule. the Quapaw Tribe. Agency personnel allows EPA to adopt an alternative other Representatives from the States of also consulted with representatives of

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the Quapaw Tribe to assure the tribe technical standards (e.g., materials List of Subjects in 40 CFR Parts 260 and that their concerns were given due specification, sampling, analyses). As 278 consideration. such, the National Technology Transfer Environmental protection, Chat, and Advancement Act does not pertain G. Executive Order 13045: Protection of Certification and recordkeeping to this action. Children From Environmental Health requirements, Incorporation by Risks and Safety Risks J. Executive Order 12898: Federal reference, Indians—lands, Mine tailings, Executive Order 13045 ‘‘Protection of Actions To Address Environmental Waste. Children from Environmental Health Justice in Minority Populations and Dated: June 5, 2007. Risks and Safety Risks’’ (62 FR 19885, Low-Income Populations Stephen L. Johnson, April 23, 1997) applies to any rule that: Executive Order 12898 (59 FR 7629 Administrator. (1) Is determined to be ‘‘economically (Feb. 16, 1994)) establishes Federal For the reasons set out in the executive policy on environmental significant’’ as defined under Executive preamble, title 40, chapter I of the Code Order 12866, and (2) concerns an justice. Its main provision directs of Federal Regulations is amended as environmental health or safety risk that Federal agencies, to the greatest extent follows: EPA has reason to believe may have a practicable and permitted by law, to disproportionate effect on children. If make environmental justice part of their PART 260—[AMENDED] the regulatory action meets both criteria, mission by identifying and addressing, the Agency must evaluate the as appropriate, disproportionately high 1. The authority citation for part 260 environmental health or safety effects of and adverse human health or continues to read as follows: the planned rule on children, and environmental effects of their programs, Authority: 42 U.S.C. 6905, 6912(a), 6921– explain why the planned regulation is policies, and activities on minority 6927, 6930, 6934, 6935, 6937, 6938, 6939, preferable to other potentially effective populations and low-income and 6974. and reasonably feasible alternatives populations in the United States. 2. Section 260.11 is amended by considered by the Agency. EPA has determined that this final This final rule is not subject to the rule will not have disproportionately revising the first sentence in paragraph Executive Order because it is not high and adverse human health or (a) and paragraph (c)(3)(vii) to read as economically significant as defined in environmental effects on minority or follows: Executive Order 12866, and because the low-income populations because it does § 260.11 References. not affect the level of protection Agency does not have reason to believe (a) When used in parts 260 through the environmental health or safety risks provided to human health or the environment. Our analysis indicates 268 and 278 of this chapter, the addressed by this action present a following publications are incorporated disproportionate risk to children. that chat piles in the Tri-State Mining District are, in some cases, located near by reference. * * * H. Executive Order 13211: Actions low-income populations. In addition, * * * * * Concerning Regulations That Quapaw allotted lands are located (c) * * * Significantly Affect Energy Supply, within the Picher Mining Field. Existing (3) * * * Distribution, or Use data on the human health and ecological (vii) Method 1312 dated September This rule is not a ‘‘significant energy impacts associated with chat suggests 1994 and in Update III, IBR approved action’’ as defined in Executive Order that these populations may be adversely for part 261, appendix IX and 13211, ‘‘Actions Concerning Regulations affected by the presence of the chat § 278.3(b)(1). That Significantly Affect Energy Supply, piles. Thus, the removal of the chat from 3. Part 278 is added to read as follows: Distribution, or Use’’ (66 FR 28355 (May piles for transportation construction 22, 2001)) because it is not likely to applications that are considered PART 278—CRITERIA FOR THE have a significant adverse effect on the protective of human health and the MANAGEMENT OF GRANULAR MINE supply, distribution, or use of energy. environment would likely have a TAILINGS (CHAT) IN ASPHALT positive impact on these communities. CONCRETE AND PORTLAND CEMENT I. National Technology Transfer and CONCRETE IN TRANSPORTATION Advancement Act K. Congressional Review Act CONSTRUCTION PROJECTS FUNDED Section 12(d) of the National The Congressional Review Act (CRA), IN WHOLE OR IN PART BY FEDERAL Technology Transfer and Advancement 5 U.S.C. 801 et seq., as added by the FUNDS Act of 1995 (‘‘NTTAA’’), Public Law No. Small Business Regulatory Enforcement Sec. 104–113, 12(d) (15 U.S.C. 272 note) Fairness Act of 1996, generally provides 278.1 Definitions. directs EPA to use voluntary consensus that before a final rule may take effect, 278.2 Applicability. standards in its regulatory activities the agency promulgating the rule must 278.3 Criteria for use of chat in Federally unless to do so would be inconsistent submit a rule report, which includes a funded transportation projects. with applicable law or otherwise copy of the rule, to each House of the 278.4 Certification and recordkeeping impractical. Voluntary consensus Congress and to the Comptroller General requirements. standards are technical standards (e.g., of the United States. Prior to publication Authority: 42 U.S.C. 6961 et seq. materials specifications, test methods, of this final rule in the Federal Register, sampling procedures, and business we will submit all necessary § 278.1 Definitions. practices) that are developed or adopted information to the U.S. Senate, the U.S. (a) Asphalt concrete—a layer, or by voluntary consensus standards House of Representatives, and the combination of layers, composed of a bodies. The NTTAA directs EPA to Comptroller General of the United compacted mixture of an asphalt binder provide Congress, through OMB, States. Under the CRA, a major rule and mineral aggregate. explanations when the Agency decides cannot take effect until 60 days after it (b) Chat—waste material that was not to use available and applicable is published in the Federal Register. formed in the course of milling voluntary consensus standards. This This action is not a ‘‘major rule’’ as operations employed to recover lead rule does not require the application of defined by 5 U.S.C. 804(2). and zinc from metal-bearing ore

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minerals in the Tri-State Mining District aggregate, and mineral fillers, such as (2) EPA (or a State environmental of Southwest Missouri, Southeast Portland cement or lime which is Agency, if it chooses to do so) has Kansas and Northeast Oklahoma. applied as a thin coating on top of determined, based on a site-specific risk (c) Chip seal—a material composed of asphalt concrete or Portland cement assessment and after notice and aggregate placed on top of a layer of an concrete road surfaces. opportunity for public comment, that asphalt or asphaltic liquid binder. The (n) Stabilized base—a non-asphaltic the releases from the chat mixture in its aggregate may be rolled into the binder. road base composed of aggregate mixed proposed use will not cause an (d) Cold mix asphalt—refers to an with a pozzolanic material which exceedance of the National Primary asphalt and aggregate mixture composed increases the bearing strength of the Drinking Water Standards for lead and of binders, soaps, or other chemicals material. cadmium in potential drinking water which allow its use when cold (o) Transportation construction sources and the fresh water chronic (e) Epoxy seal—refers to the mixture projects—these activities relate to the National Recommended Water Quality of aggregate in epoxy binders. Epoxy construction of roads and highways and Criterion for zinc of 120 µg/l in surface seals are typically used as an anti-skid include bases, sub bases, road surfaces, water; or surface on bridge decking bridges, abutments, shoulders, and (c) The use of chat has been (f) Federal or State response action— embankments. They are not related to authorized pursuant to a State or any residential use. State or Federal response action Federal response action. undertaken pursuant to applicable (p) Tri-State Mining District—the Federal or State environmental laws and lead-zinc mining areas of Ottawa § 278.4 Certification and recordkeeping with consideration of site-specific risk County, Oklahoma, Cherokee County of requirements. assessments. southeast Kansas and Jasper, Newton, (a) Certification. For chat used under (g) Flowable fill—a cementitious Lawrence, and Barry Counties of the jurisdiction of the U.S. Department slurry consisting of a mixture of fine southwest Missouri. of Interior, Bureau of Indian Affairs, the (q) Warm mix asphalt—refers to a aggregate or filler, water, and EPA certification below is not mixture of an asphalt binder with cementitious materials which is used applicable. In other jurisdictions, the aggregate, paraffin or esterfied wax, and primarily as a backfill in lieu of acquirer shall: mineral additives that allow its use at compacted earth. (1) Submit a signed, written (h) Granular road base—road base temperatures much lower than hot mix asphalt. certification to the environmental typically constructed by spreading regulatory agency in the State where the aggregates in thin layers of 150 mm (6 § 278.2 Applicability. chat is to be used within 30 days of the inches) to 200 mm (8 inches) and These requirements apply to chat date of acquisition. The certification compacting each layer by rolling over it from the Tri-State Mining District used shall contain the following: with heavy compaction equipment. The in transportation construction projects aggregate base layers serve a variety of (i) Location of origin of the chat; carried out, in whole or in part, using (ii) Amount of chat acquired; and purposes, including reducing the stress Federal funds. applied to the sub grade layer and (iii) Certification Statement: I certify providing drainage for the pavement § 278.3 Criteria for use of chat in Federally under penalty of law that the chat used structure. The granular sub base forms funded transportation projects. in this transportation project will meet the lowest (bottom) layer of the Chat can be used in transportation EPA criteria found in § 278.3. pavement structure and acts as the construction projects carried out, in (2) Transfer. If the chat is sold or principal foundation for the subsequent whole or in part, using Federal funds if: otherwise transferred to another party, road profile. (a) The chat is used in hot, warm or the acquirer shall provide a copy of the (i) Hot Mix Asphalt—a hot mixture of cold mix asphalt, in slurry seal, certification to the new owner of the asphalt binder and size-graded microsurfacing, or in epoxy seal; or chat. The new owner shall submit a aggregate, which can be compacted into (b) The chat is used in Portland certification according to paragraph a uniform dense mass. Hot mix asphalt cement concrete, granular road base, (a)(1) of this section. The new also includes hot mix asphalt sub bases flowable fill, stabilized road base or certification supersedes all previous and hot mix asphalt bases. chip seal if, on a case by case basis certifications. (j) Microsurfacing—polymer-modified either: (3) Recordkeeping. The acquirer of slurry seal. (1) Synthetic Precipitation Leaching chat, and any other person that receives (k) Portland cement concrete (PCC)— Procedure (SPLP) tests are conducted on the chat, will maintain copies of all of pavements consisting of a PCC slab that the proposed material using EPA SW– the following for three years; a copy of is usually supported by a granular 846 Method 1312, incorporated by the certification following transmittal to (made of compacted aggregate) base or reference in § 260.11 of this chapter, and the State department(s) of the sub base. the leachate testing results show that environment, and, as appropriate; any (l) Pozzolanic—a siliceous material concentrations in the leachate do not SPLP testing results; or any site-specific which when combined with calcium exceed the National Primary Drinking risk assessments. hydroxide in the presence of moisture Water Standards for lead and cadmium (b) [Reserved] exhibits cementitious properties. and the fresh water chronic National (m) Slurry seal—refers to a material Recommended Water Quality Criterion [FR Doc. E7–13544 Filed 7–17–07; 8:45 am] composed of emulsified asphalt, for zinc of 120 µg/l; or BILLING CODE 6560–50–P

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