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 rega rding 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 w ithdraw standards for fl y 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 "c oncerns over legal exposur e, 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" a nd provide sound technical and engineering recommendations that “promote public hea lth and safety, suppor t the protection and sustainability of the environment, and the overall quality of life.” AS TM's credibility comes from adherence both to consensus decision-ma king and to the objective standards used to evaluate product effectiveness, safety and quality. Not only doe s 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 individu als who clearly have a pol itical 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, Jen ny 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 com bustion 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 La boratories, Inc., a for-profit subsidiary of the Portland Ce ment Association. The Portland Cement Association has a clear financia l interest in the EPA’s classification of coal ash. In adocument 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 wa ste 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 ma ny of the products and processes for which ASTM provides standards, such as paints, coat ings, and electroplating, are manufactured with hazardous substances and materials that contai n significant amounts of hazardous constituents. In fact, we recently reviewed studies that comp ared the metals content in portland cement to levels of the same metals in fly ash. Some studi es 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 re commend that portland cement be removed as a concrete component, despite the legal liability th ese 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 furthe r dialogue and consensus building among a greater cross-section of ASTM members will bring a more reas oned 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 ClubScott Slesinger Legislative Director

Natural Resources Defense Council

Chandra Taylor Senior Attorney

Southern Environmental Law Center