The U.S. cement industry is facing some of the most onerous environmental regulations yet to appear, potentially more costly than the new air pollution rules for cement plants that took effect during the summer of 1999.

In August 1999, the U.S. Environmental Protection Agency (EPA) proposed new regulations for the management of cement kiln dust (CKD). The proposed rule is the culmination of years of investigative work by EPA and intensive wrangling between EPA, the U.S. cement industry, cement industry competitors, and environmental groups. For EPA, the proposed rule addresses the last of the special wastes designated by the U.S. Congress as "high-volume, low-toxicity" wastes that were given individualized treatment under the Resource Conservation and Recovery Act (RCRA).

In 1978, when EPA first proposed the hazardous waste rules under Subtitle C of RCRA, EPA carved out an exception for these special wastes, termed "Bevill wastes." But in the final 1980 hazardous waste rules, Bevill wastes, including CKD, were not exempt from Subtitle C.

Rep. Tom Bevill (D-Ala.) came to the rescue and introduced what the cement industry refers to as the "Bevill amendment" to RCRA in 1980. Bevill wastes included mineral processing wastes, coal ash from coal combustion, and CKD. Under the Bevill amendment, these materials were given temporary exemption from Subtitle C regulations, so that EPA could study the wastes, paying close attention to the way the minerals, power, and cement industries then were handling their wastes. EPA also evaluated the risks to human health and the environment that could be identified, and the availability of other regulations, such as air pollution regulations or state solid waste rules, that would make hazardous waste rules unnecessary.

In 1994, EPA reported back to Congress, asserting that the cement industry had not managed CKD adequately and finding that, overall, the available alternative rules were inadequate. In 1995, EPA announced it would be proposing rules for CKD management under Subtitle C, but that the rules may be somewhat less burdensome than the standard hazardous waste rules. The result of EPA's study of CKD is the current proposed rule, which will, if implemented, present significant burdens for cement producers as well as owners of land that contains old inactive CKD disposal sites.

EPA does not have a deadline for issuing a final rule, but could typically be expected to do so about a year after the proposal is made. At which point, most state environmental agencies will follow suit by publishing rules that are at least as stringent as the final EPA rule.

The most draconian aspect of the proposed rule is the enforcement hammer that EPA and the states will wield under the proposed rule. Any CKD that is not in compliance with the rule will be labeled a hazardous waste. It is difficult to appreciate the edge of the precipice at which cement plants will be standing under the new CKD rule until one reads between the lines and not just the plain meaning of EPA's proposal.

Proposed CKD management standards In the five years since EPA announced plans to propose new CKD rules, many cement plants have aggressively upgraded their CKD management practices, installing pug mills and water sprays and placing vegetative covers on top of CKD to reduce fugitive dust. Other plants have installed monitoring wells at existing landfills or have begun siting new landfills, obtaining permits under state rules, and installing liners to protect groundwater. Many more plants, however, have not been proactive and could bear the greatest burdens under the proposed rule.

If the proposed rule is finalized, many cement plants that dispose of CKD after the rule takes effect will be required to use lined landfills with leachate collection systems, similar to those municipal solid waste landfills have been required to use for more than a decade. The CKD rule allows for an alternative proposed landfill design, provided that the plan can show EPA (or the state, if the state's rules are as stringent) that the proposed design is just as protective. Either way, the landfill must have groundwater monitoring wells to prove that CKD is not harming groundwater. Cement plants will have two years to comply after the rule becomes effective.

Location standards The rule proposes location standards for CKD landfills. CKD disposal is proposed to be banned from floodplains, wetlands, fault areas, and seismic impact zones. But perhaps the most misunderstood location restrictions deal with so-called "karst terrains" and a total ban on disposal at levels below the natural groundwater table. Karst terrains are limestone areas that are laden with cracks, fissures, and caverns. The problem with karst is that, if CKD rests on it, any percolation of rainfall through the CKD may produce leachate, which will quickly find its way through these fissures to groundwater. For this reason, EPA is less inclined to allow CKD landfills located in karst terrain to use alternative landfill designs.

Location of a landfill in karst terrains also means that finding a good location for groundwater monitoring wells may be particularly difficult, since water will take the path of least resistance-through the cracks and channels rather through rock. Unless a monitoring well is located near the right channel, it will not receive CKD leachate, and monitoring will be ineffectual. Thus, EPA requires CKD landfills in "carbonate terrain" to conduct extensive studies of the disposal site to be sure that the monitoring wells are properly located. But "carbonate" really means limestone, the main component of cement kiln raw materials.

How many cement plants aren't located at a limestone quarry? EPA has, in effect, equated karst and carbonate in the proposed rule. Karst investigations, such as those proposed by EPA at effectively all CKD disposal sites, could cost hundreds of thousands of dollars to perform for each site.

EPA proposes to ban CKD disposal in landfills having their bases below the water table. This often means many mined out quarries, once a favorite location for CKD landfills, may no longer be allowed as CKD landfill sites. Where the quarry is below grade, the natural groundwater level may not be below the base of the quarry. Many limestone quarries use sumps from which groundwater is pumped, keeping the quarry floor dry for mining operations. But at the end of the mine's life, quarry reclamation plans often call for allowing the quarry to fill with water. This is one of EPA's concern about disposal in quarries-CKD may ultimately end up under water.

In fact, although this section of the proposed CKD rule is not clearly worded, EPA considers the water table restriction to be a total ban on disposal of CKD under water generally. Several cement plants still dump CKD in water, believing that it keeps fugitive dust to a minimum. According to EPA's Bill Schoenborn, one of the key figures in crafting the proposed CKD rule, disposal of CKD in water is one of the main reasons EPA felt compelled to regulate CKD disposal. According to Schoenborn, for purposes of the CKD rule, standing water and ground water are one in the same.

Fugitive dust controls All CKD landfills and piles will be required to use CKD treatment methods such as pugging CKD with water and placing it in the landfill or piling in thin compacted layers to reduce fugitive dust emissions. The proposed CKD rule requires fresh CKD, once placed on the ground, to be covered on a daily basis to further reduce fugitive dust. After the last CKD is placed in a CKD landfill, an engineered cap that is impervious to rainfall could be required to be installed within six months.

Cement plants that don't have landfills are not off the RCRA hook. Those plants that sell all of their waste CKD still must store, convey, and haul it away. Thus, the CKD rule has proposed standards for temporary storage and hauling CKD as well. Proposed storage standards require the use of closed tanks, containers, and buildings. No temporary piles on the ground or concrete slabs would be allowed. Transporting by truck would require covered vehicles and/or CKD conditioned with water or other dust suppressants to reduce blowing CKD.

CKD sales: buyers beware The proposed rules do not limit beneficial uses of CKD, except for agricultural use. CKD sold as an agricultural soil amendment will have limits on levels of certain hazardous constituents. CKD exceeding these limits and placed on farmland could become hazardous wastes. No similar limitations apply to other beneficial uses such as stabilization of pavement bases in roads and parking lot construction and waste stabilization in commercial landfills. However, handling and transportation standards could get customers and haulers caught in the RCRA trap.

Hazardous waste regulation The CKD rule creates a laundry list of violations that could turn CKD into hazardous waste at the stroke of an inspector's pen. Since CKD managed in violation of the rule automatically becomes a hazardous waste, cement plants and existing CKD piles could become regulatory minefields. One minute it's business as usual, and the next minute a cement plant is buried in regulatory minutia and costs, with exposure to extensive fines and penalties.

One test of compliance is simple. If the state's air quality inspector turns up a fugitive dust problem, it could also become a RCRA problem. A cement plant could one day find itself with a dusty silo full of hazardous waste costing thousands of dollars to remove. The same goes for the CKD transporter. If a CKD-hauling truck is not covered or the CKD is wetted down to keep dust from blowing about, the transporter could find itself hauling hazardous waste and not just CKD.

Although EPA tries to downplay the hazardous waste hammer, saying in the rule's preamble, "CKD would only become hazardous waste subject to RCRA Subtitle C regulation when persons managing the waste commit egregious or repeated violations," the words of the actual rule make no distinctions. Violation of most of the landfill management standards, including the location standards, fugitive dust control standards, and even repeated minor violations mean that the affected CKD will lose its exemption from RCRA Subtitle C. But in a unique twist, EPA has the discretion to change its mind after the facility fixed a violation, declaring that the CKD isn't hazardous waste anymore and is again exempt.

The proposed rules are many and complex, and are fraught with deadlines, details, and regulatory traps for those unwary and unwilling to read beyond the mere words of the rule. Seemingly innocuous violations of the rules could turn mismanaged CKD into a hazardous waste, a regulatory nightmare to even the most sophisticated cement producers. Many kinds of violations would render CKD a hazardous waste subject to fines and stringent cleanup standards.

What follows are questions whose answers reveal examples of traps that could get CKD generators caught in the regulatory vise that is RCRA: Will the rule affect my plant if all CKD gets recycled or sold?

Yes. Many cement plants do not need to dispose of CKD because they can physically recycle all the CKD that they produce and because recycling does not harm cement quality. These plants do not normally, if ever, dispose of CKD in the normal sense. But this does not mean that they do not generate CKD or that they are not potentially subject to the CKD rule. The proposed definition of CKD waste is "fine particulate solids, associated with the production of portland cement, which are collected by air pollution control devices used to clean the kiln exhaust."

How many cement kilns do not have "air pollution control devices used to clean the kiln exhaust?" Probably none of them. How many cement kiln baghouses and precipitators, CKD conveyors, silos, and tanks are shut down for maintenance and repairs, leaving CKD in hoppers to be removed before the maintenance crew can begin repairs? Probably all of them.

When that CKD gets dumped out of the hopper, does any CKD blow away or fall on the ground? It may, and this CKD would then become CKD waste, subject to the proposed rule. The words of the CKD rule do not treat even that small amount of spilled CKD as any different from CKD dumped in a quarry. Moreover, a Clean Air Act violation that results in enforcement by the air quality regulators may also result in a hazardous waste violation. The rule explicitly makes such air violations cause for hazardous waste enforcement.

What about CKD that I will produce before the rule is finalized? Is it subject to regulation retroactively if the proposed rule becomes finalized?

Yes. The CKD rule requires CKD landfills that receive waste after the date of the rule's proposal to close soon after the final rule becomes effective or else become subject to all of the new management standards. Any landfill receiving CKD today will be subject to the new closure standards at a minimum, even if they stop receiving CKD waste before the rule becomes effective.

What about old CKD piles that haven't received CKD for years? Could they become subject to the new rules?

Yes. Unfortunately, EPA did not bother to mention this policy in the preamble that explains the proposed rule. However, for many years, EPA has used the term "active management," an obscure term not appearing in most hazardous regulations, to be a trigger for hazardous waste enforcement at old "grandfathered" disposal sites. To EPA, a material that was not a hazardous waste (as defined in the rules) when it was disposed in the ground becomes new waste if it is disturbed. If the waste is disturbed under new rules that define newly generated waste a hazardous waste, the disturbed waste also becomes hazardous waste. The waste, in effect, becomes re-generated. Thus, even digging up an old CKD pile for recycling or sale, or voluntarily regrading it to stop erosion could generate new CKD. This seemingly incredible stretch of EPA's tentacles is the law today-the policy passed muster in the Federal courts when the minerals processing industry objected to its loss of Bevill amendment protection in 1989.

My plant plans to dig up some old CKD either to contour the landfill/pile or to recycle the CKD. Doesn't the "active management rule" rule create a disincentive to do the right thing?

Unfortunately, yes. Even EPA realizes this and has tried to come up with regulatory fixes to protect voluntary recycling and environmental remediation efforts. According to EPA's Schoenborn, this is an area that EPA would welcome input on before a final rule is drafted.

Is there anything our plant can do to protect itself from generating hazardous waste enforcement at our old CKD piles?

Maybe. Many states have cleanup laws, often called "mini-superfund" laws, that provide for voluntary cleanups. Sometimes cleanup agreements with specific protections from RCRA standards can be negotiated with state environmental regulators. Check with an experienced environmental lawyer for guidance on the best way to accomplish this.

My state has always exempted CKD from solid and hazardous waste rules. Will this change?

Probably. If a state hazardous waste program fails to adopt standards as stringent as EPA's, it could lose the ability to run its program in lieu of EPA, allowing EPA to step in and take enforcement action.

The CKD rule might not become final for years. My state wants to wait until the rule is finalized before passing its own rules. Why shouldn't my company conduct business as usual until EPA the rule is promulgated?

Some cement companies may have taken this "ostrich" approach. However, once the final rule is promulgated, a regulatory clock will begin to run for compliance. Many of today's state waste rules don't apply to on-site generated industrial wastes or existing landfills (one of EPA's main reasons for the proposed CKD rule). Waiting for the rule may create a serious time crunch.

New landfills usually take years to permit with extensive site investigations, long permit review processes, and public participation. In some states, approval by county solid waste authorities also is required. In the meantime, cement plants that have been proactive have gotten ahead of the game and with state support have made long-term plans, budgeting for siting new, state-of-the-art landfills over a three- to five-year time-frame. CKD "ostriches" should consider peeking out from the sand to see the RCRA hammer coming and get moving toward improving their CKD management practices.

Plants should be gearing up for compliance, developing budgets, etc. now for 2001 and beyond.

Is there anything my plant can do today to mitigate the impact of this rule if it is finalized?

Cement plants and owners of land containing CKD should take stock and evaluate existing sites now to determine the potential risk to the company if the rule is promulgated. Make long-term plans by projecting CKD generation and disposal requirements over the next five or more years. Ask basic questions such as, will we be able to dispose of CKD at this location in the future? If not, where and how will we be able to do it, and what will state regulations require to allow us to start now?

Develop plans with the help of experienced environmental counsel to address the actions that may be taken today to correct potential environmental problems before the rule takes effect. Once the rule is in place, such corrective actions could be much more burdensome and costly.

The comment period on the proposed CKD rule ended on Feb. 17, 2000. EPA will consider all substantive comments carefully before promulgating final rules. Many provisions in the proposed rule may seem unnecessary, unreasonable, illegal, or downright nonsensical. But once rules are finalized, the courts often accord EPA's judgment and expertise.

Many cement companies have offered comments on EPA's proposal as have, presumably, environmental groups. EPA could take a year or more in responding to the comments and publishing a final rule. States could take even more time to follow suit, promulgating state CKD rules that must be at least as stringent as the Federal rule. In most states, the state agencies will enforce CKD rules in lieu of EPA. As a practical matter, the soonest cement companies could be expected to be in full compliance with the CKD rule is 2002 or 2003. But even if a company began today, it could take that long to legally construct a fully compliant CKD landfill.