December 28, 2009 

By Email 

Mr. Mathy Stanislaus 

Assistant Administrator 

Office of Resource Conservation and Recovery 

US Environmental Protection Agency Headquarters 

Ariel Rios Building 

1200 Pennsylvania Avenue, N. W. 

Washington, DC 20460 

stanislaus.mathy@epa.gov 

Re: December 22, 2009 Letter from ASTM regarding Reuse of Coal Ash in Concrete 

Dear Assistant Administrator Stanislaus: 

In a letter dated December 22, 2009 from ASTM Committee C09 on Concrete and 

Concrete Aggregates, the committee threatens to withdraw standards for fly ash use in concrete 

if EPA designates coal combustion waste as a hazardous waste (attached). According to their 

letter, the committee describes its reasons as "concerns over legal exposure, product liability, and 

public perception." We would like to respond briefly to this letter. 

It is important to note that this letter presents an unprecedented departure from ASTM's 

mission to create "consensus standards" and provide sound technical and engineering 

recommendations that “promote public health and safety, support the protection and 

sustainability of the environment, and the overall quality of life.” ASTM's credibility comes 

from adherence both to consensus decision-making and to the objective standards used to 

evaluate product effectiveness, safety and quality. Not only does the letter stray into unsound 

legal opinions regarding product liability that have nothing to do with technical or structural 

integrity, but the letter was written by individuals who clearly have a political agenda to scare 

regulators into thinking that classifying fly ash as hazardous waste would end the use of fly ash 

for beneficial purposes. The two signatories of the letter, Jenny Hitch and Anthony Fiorato, have 

significant financial interest in the marketing and reuse of coal ash in a wide variety of 

applications: 

• Jenny Hitch is Marketing Director for Full Circle Solutions, whose mission is “to serve 

the producers of coal combustion products” by finding commercial markets for coal 

combustion products. Ms. Hitch is also employed by ISG Resources, acquired by 

Headwaters in 2002 and promoted as "America's largest manager and marketer of coal 

combustion products." 

• Anthony Fiorato is the president/CEO of Construction Technology Laboratories, Inc., a 

for-profit subsidiary of the Portland Cement Association. The Portland Cement 

Association has a clear financial interest in the EPA’s classification of coal ash. In a 
document submitted on November 17, 2009 to the Office of Management and Budget, 

the association voiced its opposition to a hazardous waste designation. 

Second, legal liability attaching to manufacturers or consumers of concrete made with fly 

ash need not be driven by the EPA's hazardous waste determination if legitimate beneficial uses 

are exempted from subtitle C classification. As you know, fly ash is today a hazardous substance 

under the Comprehensive Environmental Response, Liability and Compensation Act 

(CERCLA,) and that legal designation will not be affected by a RCRA rule. Many products are 

produced with recycled materials that would be hazardous waste if they were not beneficially 

used. 

Lastly, it needs to be emphasized that many of the products and processes for which 

ASTM provides standards, such as paints, coatings, and electroplating, are manufactured with 

hazardous substances and materials that contain significant amounts of hazardous constituents. 

In fact, we recently reviewed studies that compared the metals content in portland cement to 

levels of the same metals in fly ash. Some studies presented data showing that certain hazardous 

metals, such as lead and chromium, can actually be found at considerably higher levels in 

portland cement. Certainly, ASTM would not recommend that portland cement be removed as a 

concrete component, despite the legal liability these hazardous constituents pose to transporters 

and manufacturers. 

We have requested a meeting with the executive director of ASTM to talk in more detail 

about these issues. We are hopeful that further dialogue and consensus building among a greater 

cross-section of ASTM members will bring a more reasoned and balanced approach to this issue. 

Respectfully, 

Lisa Evans 

Senior Administrative Counsel 

Earthjustice 

Eric Schaeffer 

Executive Director 

Environmental Integrity Project 

Mary Anne Hitt 

Deputy Director, Beyond Coal Project 

Sierra Club 
Scott Slesinger 

Legislative Director 

Natural Resources Defense Council 

Chandra Taylor 

Senior Attorney 

Southern Environmental Law Center