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September 30 , 2015

V IA E LECTRONIC M

AIL

Gregory Helms U.S. Environmental Protection Agency Waste Characterization Branch Office of Solid Waste and Emergency Response helms.greg@epa.gov

Re: Public Employees for Environmental Responsibility Petition for Rulemaking to Revise RCRA Corrosivity Characteristic

– Submission of Information

Dear EPA:

On behalf of the undersigned organiza tions (“the Coalition”), 1 we are submitting information to assist the U.S. Environmental Protection Agency (“EPA”) in evaluating the petition filed by Public Employees for Environmental Responsibility (“PEER” ) and Dr. Cate Jenkins ( “petitioner s ”) for rulem aking to revise the corrosivity characteristic for identifying hazardous wastes under the Resource Conservation and Recovery Act (“RCRA”). A survey of the members of the 17 organizations in the Coalition, representing a broad swath of industry stakeholder s, confirm s this overriding fact: a rule that met the petition ers’ request s needlessly would subject an enormous quantity of materials, many of which currently are safely used for productive purposes, to RCRA hazardous waste requirements with no corresponding benefit in the form of improved

1 The Coalition is comprised of the following organizations whose members generate waste materials, or produce products the use of which may generate waste materials, that would be affected if the petitioners’ request were granted: The Aluminum Association, American Chem istry Council, American Coke and Coal Chemicals Institute, American Forest & Paper Association, American Iron & Steel Institute, Copper & Brass Fabricators Council, The Fertilizer Institute, Horsehead Corporation, Leather Industries of America, National Li me Association, National Mining Association, National Slag Association, Portland Cement Association, Society of Chemical Manufacturers and Affiliates, Steel Manufacturers Association, Specialty Steel Industry of North America, and Waste Management.U.S. Environmental Protection Agency

September 30 , 2015 Page Two K E L L E Y D R Y E & W AR R E N LLP

worker, public, or environmental safety. In fact, amending the corrosivity characteristic as requested would result in classifying as “hazardous” millions of tons more material than could be accommodated in currently available Subtitle C landfills. And while it would consume the nation’s entire hazardous waste landfill capacity in a matter of months , the action sought by the petitioners would not redress the concern motivating their request: protecting emergency response personnel from potentially caustic dust particles. Instead, the petition request, if granted, would impose
unnecessary , counterproductive, and wasteful regulations upo n materials that already are managed safely and in a way that efficient ly conserves resource s

.

As will be detailed i n a separate forthcoming submission from the Coalition

, the PEER petition provides no grounds to support the contention that certain non

- h azardous materials that currently are managed safely and efficiently should be regulated as “hazardous waste.” The petition relies on misleading anecdotes of alleged harms, erroneous analysis of adverse regulatory impacts , and a spurious account of EPA’ s reasons for establishing the existing RCRA corrosivity standard to argue that a more stringent standard is needed. An accurate evaluation of the facts and regulatory history shows that the petitioners have presented neither evidence nor a coherent
argumen t to support revision of the standard. In particular :

► The petition erroneous ly suggests that amending the RCRA corrosivity standard will improve protection of workers and emergency response personnel

.
► The petition misreads the interplay between RCRA “hazardous waste” designations and the evaluation of risk management methods under other standards issued by EPA, the Occupational Safety and Health Administration (“OSHA”)

, and the Depart ment of Transportation

.
► EPA’s legal and policy base s for setting the existing corrosivity standard are rational and consistent with the purposes of RCRA.

In establishing the characteristics of “hazardous waste,” Congress directed EPA to identify as “hazardous” wastes that “pose a substantial present or potential hazar d to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.” 2 In so doing, EPA is to be guided by the objectives of RCRA, which include the need to “conserve valuable material” and to minimize “ the land disposal of hazardous waste by encouraging ... materials recovery, properly conducted recycling and reuse, and treatment.” 3 In adopting the corrosivity characteristic in 1980, EPA established a standard that was protective of human health and the e nvironment, while avoid ing classifying as “hazardous” waste materials

2 42 U.S.C. §6903(5)(B); §6921(a).

3 42 U.S.C. §6902(a); §6902(a)(6).U.S. Environmental Protection Agency

September 30 , 2015 Page Three K E L L E Y D R Y E & W AR R E N LLP

(particularly lime

- based wastes and lime

- stabilized wastes) that were otherwise non

- hazardous and have a variety of beneficial uses. 4

The se l egal and factual shortcomings of the petition will be addressed more fully in a separate submission next month. This submission focuses on some of the unreasonable burdens that would stem from granting the petitioners’ request , particularly with respect to the amount of “high volume/low hazard” mate rial

, currently managed safely and, in many cases, reused beneficially, that would be directed towards disposal in the nation’s hazardous waste landfills

. The following comments provide detailed support and explanation for these conclusions:

(1) Reduci ng the alkaline corrosivity pH level from 12.5 to 11.5, and

applying that standard to solid and non

- aqueous liquid wastes, would subject millions of tons of safely managed solid wastes and byproducts to RCRA Subtitle C regulation with no corresponding heal th, safety

, or environmental 5 benefit s

. (2) Amending the RCRA corrosivity standard would not address the risks alleged in the petition or provide additional worker protection. Existing worker protection programs already effectively manage risks associated with wastes with elevated pH.

(3) D esignating substantial quantities of wastes as hazardous would result in significa ntly increased management costs.

(4) G ranting the petition ’s request would restrict or eliminate the beneficial reuse of la rge quantities of currently non

- hazardous waste materials

. (5) A mending the corrosivity characteristic would compromise existing hazardous waste treatment methods and other landfill practices

.

4 45 Fed. Reg. 33,083, 33,109 (May 19, 1980) (stating that establishing a lower pH threshold for the corrosivity characteristic would have “ the unintended effect of inhibiting the use of such beneficial processes as the lime stabilization of wastes. ”); s ee also

, EPA, Background Document: Resource Conservation and Recovery Act, Subtitle C

– Hazardous Waste Management, Section 3001

– Identification and Listing of Hazardous Waste, §261.22

– Characteristic of Corrosivity , at 14 (May 1980) (“ Corrosivity Background Document ”)

.

5 As the petitioners do not raise any environmental concerns regarding the existing standard, we have opted not to address this issue in further detail. Coalition m embers are unaware of any information regarding environmental harms associated with setting the pH value of the RCRA corrosivity standard at 12.5, or any corresponding benefits from lowering the pH value to 11.5. If EPA is aware of such information, the C oalition would be happy to review and respond to it.U.S. Environmental Protection Agency

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(6) C lassifying numerous wastewater streams from multiple indust ries as hazardous would upse t existing , mutually beneficial discharge arrangements with local publicly owned treatment works (“ POTW s”)

. For these reasons, the Coalition urges EPA to deny the petition and maintain the existing RCRA standard for corrosivity

, which has not been shown to present a risk to human or environmental health.

I. THE PETITIONERS SEEK TO IMPOSE UNNECESSARY

HAZARDOUS WASTE REGULATION ON A VOLUME OF MATERIALS THAT WOULD VASTLY EXCEED EXISTING SUBTITLE C LANDFILL CAPACITY

Millions of tons of solid alkaline waste materials each year are used, recycled, or otherwise managed safely and efficiently by a wide cross

- section of American in dustry. The petition to reduce the alkaline pH level and apply the standard to solids

, if granted, would impose on these materials unwarranted RCRA hazardous waste requirements. As detailed in a separate submission by Waste Management (“WM”), the “increased volume of newly characterized ha zardous waste would be so great that it would quickly overwhelm the e xisting Subtitle C infrastructure needed to manage it.” The National Waste & Recycling Association (“NWRA”) reports that last year the total maximum operational commercial hazardous waste landfill capacity in the United States was 89 million tons, an amou nt “sufficient to provide approximately 25 years of capacity for disposal of hazardous wastes.” 6 In comparison, in 2013

, p ortland cement concrete debris generated from construction and demolition (“C&D”) activities was 353 million tons 7 (with roughly 140 million tons recycled annually 8 ). Hence, NWRA calculates that the existing 25

- year Subtitle C landfill capacity would be exhausted within three months due solely to the disposal of
p ortland cement concrete debris that is safely managed under existing prot ocols.

These extraordinary figures do not account for the additional million s of tons of currently non

- hazardous solid wastes with expecte d pH levels above 11.5 that currently are managed safely and effectively in Subtitle D (non

- hazardous) landfills. WM estimates that at least 1.5 million tons (1.5%), and likely significantly more, of the approx imately 100 million tons of

non

- hazardous waste received by their Subtitle D facilities annually is likely to have a pH of greater than 11.5. These materials incl ude remediation soils, filter cake and caustic scrubber solids, cooling tower solids, caustic catalysts, concrete and cement, tank cleanout residues, sandblast

6 Citing EPA, National Capacity Assessment Report: Capacity Planning Pursuant to CERCLA Section 104(c)(9) (March 25, 2015).

7 EPA, Advancing Sustainable Materials Management: 2013 (EPA530

- R

- 15

- 002) (J une 2015).

8 See www.sustainableconcrete.org

.U.S. Environmental Protection Agency

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media, soda ash, drilling muds, and furnace or incinerator ash. These and similar materials tha t would fall within the RCRA “hazardous waste” universe are discussed below.

II. A WIDE RANGE OF WASTES THAT NOW ARE MANAGED

SAFELY AND EFFICIENTLY WOULD BE NEWLY CLASSIFIED AS “HAZARDOUS”

A n informal survey of industry stakeholders confirms the volume estimates provided by WM and noted above. The survey also reveals a wide range of materials

– materials that are safely and efficiently managed now

– that potentially would be newly classified as RCRA “hazardous” if the petition were granted and the alkaline pH level reduced and applied to solids as well as liquids . These materials are discussed below.

(1) Wastes from the Beneficial Use of Lime

- Based Products

The most widespread and momentous impact from granting the petition ’s request would be e xperienced by the broad range of industries that use and consume lime

- based products. 9 For example, q uicklime, or calcium oxide, has a pH of 12.45 when tested in an aqueous solution per EPA guidelines

. Lowering the upper pH level of the RCRA corrosivity characteristic to 11.5 would hobble the use of lime

- based products across a wide spectrum of industries in multiple ways: (1) production processes involving the use of lime may generate wastes that could exceed a pH of 11.5; (2) the use of lime

- based prod ucts, while not subject to RCRA, can result in spills or other residuals that may need to be managed as waste s ; and (3) other industrial processes utilizing lime can generate waste s with elevated pH.

The following production processes are examples of the w ide variety of industries that utilize lime and generate wastes or byproducts that may have pH above 11.5 (in some cases, the pH level may be caused by other materials in addition to lime) :

 Alumina refining (“red mud”)

 P ulp and p aper mills ( pulping liquor recovery processes and sludge)

 Lime slurry manufacture

 Barn lime manufacture

 Mortar and stucco manufacture

 Hydrogen fluoride regeneration

 Coke making (wastes and waters)

 Ph osphate chemical manufacturing

 Metal slag recovery operations (process liquor and wastes)

 Steel m ills ( floor sweepings, wastewater sludges )

 Construction materials

9 W astes generated by the lime industry itself generally are excluded from RCRA regulation under the Bevill exemption for mining wastes, and thus would not be directly affected by the petition request.U.S. Environmental Protection Agency

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 Electricity generation (fly ash)

 Fertilizer production

 Calcium carbonate precipitation

 Calcium chloride manufacture (liquor and wastes)

 Titanium dioxide manufacture (liquor and wastes)

 Lead recycling (wastes and process water)

 Breweries

 Chromium refining

While we have not been able, in the time available, to obtain specific information on the volume of wastes produced by the lime industry’s customers, the amount is in the millions of tons annually. Information on the production volumes of lime is availab le from the U.S. Geological Survey (“USGS”) at: http://minerals.usgs.gov/minerals/pubs/commodity/lime/mcs

- 2015

- lime.pdf

.

The use of lime

- based products also can generate, through spills or residuals, material that m ay have to be managed as waste. The primary example, of course, is the use of lime itself as a feedstock in numerous industrial processes. Similarly, the use of slag products, such as those manufactur ed intentionally by the steel industry and then marketed and sold for productive uses , can result in the generation of dusts that, if spilled and rendered unusable, may require disposal. In 2014, the USGS reports that U.S. iron and steel slag production t otaled between 16 and 22 million tons, with the vast majority (approximately 16 million tons) sold for a variety of uses at a value of $270 million. 10 Steelmaking slags typically exhibit pH values in the 11

- 12 range, with a median pH for basic oxygen a nd e lectric arc furnace steel slags of 11.8. While steelmaking slags are safe and useful products and therefore not subject to RCRA, if slag is perceived to exceed the threshold for the characteristic of corrosivity, consumers, including federal and state Dep artments of Transportation, may be less likely to con tinue using valuable steelmaking slags for a variety of construction and other applications. The widespread deselection of steelmaking slags would impose substantial burdens o n landfill capacity, unnece ssary disposal costs on steel mills and slag processors

, and needless additional replacement costs on their former
customers

. In addition, the use of lime in many other industrial activities results in the generation of wastes with a pH above 11.5 . The most common example, cited by almost all Coalition members responding to our survey, is the use of lime in wastewater treatment (“WWT”) processes. When used as a WWT filter press agent, lime produces a sludge with a pH that can exceed 11.5, depending on t he amount of lime used . With sludge quantities ranging at each facility from several hundred to several thousand tons per year, the need to manage the sludge as hazardous waste would substantial ly burden these facilities. Other industrial activities invo lving the use of

10 See USGS, Mineral Commodity Summaries: Iron and Steel Slags (2015) (available at: http://minerals.usgs.gov/minerals/pubs/c ommodity/iron_&_steel_slag/ ).U.S. Environmental Protection Agency

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lime that would be afflicted similarly include drinking water treatment, landfill biological treatment, and the treatment of acidic flue gas.

(2) Wastewater and Process Water pH Adjustment Materials

In addition to lime, many types of facilities utilize a number of other alkaline materials, including soda ash, caustic soda, sodium aluminate, and sodium hypochlorite/ammonia, to adjust the pH of waste and process waters. These treatment processes generate substantial volumes of sludges, filter cake and other solids with elevated pH that cu rrently are managed as

non

- hazardous waste (often by disposal at a Subtitle D landfill). The ultimate pH of the sludge depends on the quantity of treatment chemical used to adjust the pH of incoming aci dic waste or process waters. In addition to the sludge, these treatment chemicals are stored on

- site and any spilled or expired material may be considered waste if it is unable to be recycled.

(3) Solid and Liquid Wastes with Elevated pH from Numerous Industrial Processes

Many other industrial processes generat e waste materials with a pH of 11.5 or higher and currently manage them in a safe and efficient manner. Examples of these processes are discussed below.

The Pulp and Paper industry annually produ ces two types of wastes with potential pH of 11.5 or greater: (i) bark or wood waste boiler ash (1.08 million dry shorts tons); and (ii) Pulping Liquor Process residuals (1.83 million dry short tons). The industry seeks beneficial use alternatives for th ese materials, but estimates that about 60 percent currently is managed as solid waste. Beneficial us es of these materials include:

• Lime/lime m ud for soil a mendments (bulk application in areas with acidic soil 11 )

• Wood ash as ingredie nt in bagged/bulk soil

• Wood ash (bottom) plus l ime for soil/road cement

• Wood a sh for road base

• Lime/a sh for landfill capping

• Slaker grits/dregs for cement kiln feedstock

11 S oil acidity is the leading cause of diminished crop production around the world . The use of alkaline soil amendments helps improve nutrient uptake and crop productivity. See International Plant Nutrition Institute , “Soil pH and the Availability of Plant Nutrients” (Fall 2010) (stating that “ Increased nutrient availability and improved crop growth can be achieved when adding liming materia l to an excessively acidic soil.”) (available at : http://www.ipni.net/ipniweb/pnt.nsf/5a4b8be72a35cd46852568d9001a18da/97c1b6659f3405a28525777b0046bcb 9!OpenDocument ).U.S. Environmental Protection Agency

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Those wastes not able to be used beneficially are disposed of in state

- regulated Subtitle D landfills. If they are deemed “hazardous ,” we expect that these beneficial uses, particularly as soil amendment or bulk soil, would not continue.

The Aluminum manu facturing value chain is alkali

- intensive and, accordingly, generates several waste materials with elevated pH. While the primary industry wastes, saltcake and baghouse dust, are alkaline, they generally do not exhibit a pH greater than 11.5. Howeve r, several significant wast e streams would be affected by the requested change in the alkaline pH level for the RCRA corrosivity characteristic. For example, one facility reports that currently non

hazardous reacted lime media (4,000 tons) and chromium hy droxide sludge (4,461 tons) would have t o be managed as hazardous at additional disposal cost s of $1.08 million and $1.20 million a year, respectively.

Further, the reuse or recycling of a number of high pH solids would be foreclosed or dramatically limite d if the petition request is granted , due to a reluctance by the users of these materials to handle “hazardous” wastes. 12 For example, one facility reported that it currently recycles approximately 15,000 tons per year of spent potliner refractory brick (p H ~11.85), which would no longer be feasible if it were classified as “hazardous

. ” Another facility currently manages 3,800 tons per year of wastewater treatment filter cake (pH 11

- 12) by sending it to a cement kiln for use as an alternate raw material fe edstock. This use would no longer be possible if the material needed to be managed as hazardous waste, with disposal at a Subtitle C landfill costing an estimated additional $1.8 million annually.

The Portland C ement manufacturing industry similarly would face a number of challenges if the pH threshold were reduced to 11.5. Cement manufacturing safely involves several materials with higher water extract alkalinity that may have to be treated as hazardous waste, under a revised standard. For example, ceme nt kiln dust, sweepings and filter dust, and cement itself (if off

- specification or spilled) potentially may contribute to a water extract pH value higher than 11.5. Many of these materials are recycled or fed back into the production process, but may nee d to be stored for some time. Similarly, some of these materials, including cement kiln dust, have beneficial uses, such as soil amendments, that require transportation and storage. Declaring these materials hazardous waste when spilled would stifle thes e recycling and beneficial use activities, discourage end users, overwhelm landfills, and impose unnecessary burdens on cement manufacturers and their customers, from small entities, like home improvement stores and building contractors, to the largest mun icipal project and construction applications. Indeed, altering the corrosivity threshold has the potential to subject every hardware store that carries bags of cement, every small contractor moving materials to his or her job site in a pickup truck, and

n early every construction site in the country to RCRA hazardous waste obligations for spills that they have been safely managing under current protocols.

12 While such recycling may qualify for an exclusion from the definitions of solid or hazardous waste, users often specify that they will not accept materials that otherwise would be classified as “hazardous” waste.U.S. Environmental Protection Agency

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Specialty steel mills would face a number of challenges if the alkaline pH level for the RCRA corrosivity characteristic was reduced to 11.5. These facilities have a number of processes that require acid neutralization. For example, sodium hydroxide solutions are used for pH adjustment of acid fume scrubber liquid and acid n eutralization in wastewater treatment systems. Ammonia recovery feed tank solids and Kolene salt bath sludges also are generated at some facilities.

Two issues raise particular concerns for the industry. First, floor sweepings and miscellaneous cleanup sweepings may exhibit pH levels in the 11

- 12 range. If classified as “hazardous,” management and containment would be challenging, as well as the additional cost associated with disposal.

Second, and perhaps most significantly, some mills have beneficial reuse approvals from their state for stainless slag aggregate materials produced during the steelmaking process. For example, one facility produces over 350,000 tons per year of stainless slag aggregate that is approved for beneficial reuse on the bas is that it is a high volume/ low hazard material. A change to the RCRA corrosivity hazard characteristic could compromise this determination. If the material were deemed hazardous and unable to be reused, disposal costs would be an extraordinary $59 million per year.

Fertilizer manufacturers produce anhydrous and aqua ammonia which, if spilled or discarded, would qualify as “hazardous” waste if the corrosivity alkaline pH level is amended
to 11.5 or greater . Such a classification would necessitate signific ant changes in manufacturing operations, as well as storage and loading practices. Routine operation and maintenance activities currently include managing ammonia discharges through the application of be st management practices , routing the dis charge for p H adjustment (to 6

- 9 pH), and monitoring prior to discharge through permitted outfalls (in some cases the discharge of “hazardous waste” is prohibited). This approach is the safest way to evacuate equipment in ammonia service in order to perform routine

m aintenance, as well as to manage spills. To capture these waters and manage them as “hazardous” waste would introduce significant risk to personnel, an ironically unintended consequence of a regulatory change ostensibly motivated by worker prot ection conc erns. It also would impos e substantial costs from the reconfiguration of facilities and disposal fees.

Chemical M anufacturing use s n umerous caustic materials, partic ularly sodium hydroxide, in production process es . The waste streams from these processe s often fall within the 11.5

- 12.5 pH range. One manufacturer (operating a plant with 100 employees) reported that these waste streams currently either are discharged to a POTW a fter elementary neutralization or shipped offsite for treatment. For the POTW discharges, more aggressive neutralization would be required to comply with POTW restrictions on the discharge of “hazardous” waste. With respect to offsite treatment, it is estimated that current disposal cos ts of $400,000

- $500,000 per year would increase at least 10 percent and probably more. In addition, a new, larger waste storage area would be needed, at an estimated cost of approximately $30,000.U.S. Environmental Protection Agency

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Another facility reports that it ships off

- site for solidi fication approximately 18 million pounds annually of currently non

- hazardous caustic wastes, including sodium sulfate and various brines. The additional cost of managing these materials as “hazardous” waste is estimated to be over $2.2 million per year.

A third facility generates 40,000 pounds per day of a liquid anhydrous potassium hydroxide (4

- 5%) waste stream. Because it is anhydrous, the waste has no pH under the existing corrosivity test methods and is managed as non

- hazardous. However, if the waste was diluted 1:1 with water, the pH would be approximately 13. Currently, the material is sent for use as fuel to a cement kiln that only takes non

- hazardous waste

. The kiln does not charge the facility to accept this material because of the benefits of using it ( the pH level improves the quality of the cement )

. Hence, the facility’s only expense is for shipping the material (which is not a DOT

- regulated “hazardous material”) . If the material were determined to be hazardous under a new test method devel oped in response to the petition ’s request, the manufacturer would have to pay approximately 20

- 25 cents a gallon to ship it to a hazardous waste

- burning kiln.

A fourth facility , in addition to concerns about management requirements for waste lime and du st, as well lime handling equipment, would be faced with substantial burdens associated with the manage ment of primary presscake and press filtrate from the wastewater treatment process. The facility would need to install control and monitoring instrument ation to ensure the pH of presscake was below 11.5, at an estimated cost of at least $500,000. This work would take at least two and a hal f years, including nine months to select the correct technologies and equipment, six months to design the retrofit, s ix months or more for install ation

, and an additional year to optimize the system

.

A fifth facility annually disposes of 620,102 pounds of equipment washwater and 7,009,400 pounds of neutralizer effluent, each of which can have pH up to 12. These materials would have to be reclassified and disposed of in a Subtitle C landfill. In addition, the facility ships approximately 250,000 pounds of s pent silica gel, contaminated gravel, gaskets , and lined pipe, which likely would be newly classified as hazardous if the standard were applied to solids. T he facility also notes a variety of administrative burdens that would result from a change in the standard, including the need to update material safety data sheets , waste c haracterization screens and forms, and NPDES charact erizations to add RCRA codes for streams entering the wastewater treatment facility , as we ll as updating state notices of registration for each waste.

(4) The Petition R equest Also Would Expand the Corrosivity Characteristic to Low pH Solid Wastes

Petitioners do not address the impact of applying the corrosivity standard to acidic solid mate rials ( pH <2 ). However, even a brief survey identified several wastes not currently regulated for corrosivity that would b e designated as hazardous if that standard were applied to solids. These materials include: waste lead acid batteries, ammonium sulf ate (spills)

, and cer tain waste coating solids

.U.S. Environmental Protection Agency

September 30 , 2015 Page Eleven K E L L E Y D R Y E & W AR R E N LLP

III. DESIGNATING SUBSTANTIAL QUANTITIES OF WASTES AS

HAZARDOUS WOULD RESULT IN SIGNIFICANTLY INCREASED MANAGEMENT COSTS

Expanding the universe of “corrosive” hazardous wastes as requested by the petition would impose massive and unnecessary costs on many sectors of the economy . This impact includes costs associated with disposal, on

- site management and storage (capital an d personnel), RCRA training and record

- keeping, and treatment. Detailed below are examples of increased costs and other impacts reported in a survey of Coalition members . These facility

specific responses are representative of concerns that would be comm on across many, if not all, facilities within the relevant industry sector.

► Waste Management estimates incremental additional management costs of newly designated hazardous wastes as ranging from $181 to $395 per ton (compared to current management in a Subtitle D landfill).

► An aluminum producer reports that currently non

- hazardous reacted lime media (4,000 tons per year ) and chromium hydroxide sludge (4,461 tons per year ) would have to be managed as hazardous waste at an additional disposal cost of $1. 08 million and $1.20 million a year, respectively.

► A chemical manufacturer estimates the increased cost of managing as hazardous
waste 18 million pounds annually of currently non

- hazardous caustic wastes, including sodium sulfate and various brines, to b e over $2.2 million per year. A smaller chemical manufacturer (with approximately 100 employees) indicates that disposal of currently non hazardous caustic waste would increase at least 10 percent from current costs of $400,000

- $500,000 per year.

► Many fa cilities employ elementary neutralization in WWT systems in order to manage high pH wastewaters . Lowering the corrosivity threshold to 11.5 is likely to put significant stress on existing pH control systems either as a result of the need for additional treatment materials or because the amount of neutralization needed
may not be able to be ach ieved through current systems. Additional costs would be incurred to upgrade these neutralization systems.

► The cost of disposal for waste lime and other water tr eatment chemicals would increase from $35 per drum to over $300 per drum, according to one respondent.

► Two steel mills estimate that cleanup and disposal costs around lime silos and the WWT area would be around $85 per ton.

► Increased disposal costs f or wastewater treatment filter cake and sludges would be widespread. One facility estimates that disposing of 3,800 tons of wastewater treatment filter cake at a Subtitle C landfill would cost an additional $1.8 millionU.S. Environmental Protection Agency

September 30 , 2015 Page Twelve K E L L E Y D R Y E & W AR R E N LLP

annually. Another facility estimat es an additional cost of $100 per ton for disposal of newly “hazardous” WWT sludge, or $100,000 per year (plus additional transportation costs) for the approximately 1,000 tons generated annually.

► Several facilities report the need to construct expanded hazardous waste storage areas, with costs ranging from $30,000 (at a sm all manufacturing facility) to over $100,000

.
► A specialty steel mill reports that the cost to dispose of 350,000 tons of stainless slag aggregate produced per year, if the “corrosive ” hazard classification eliminates the beneficial reuse de termination for that material, is $59 million

.
► A change in the corrosivity characteristic potentially would have a profound impact at alumina refining facilities that currently use surface impound ments to store high pH waste waters. While some of these wastes would remain exempt from “hazardous waste ” classification under the exis ting Bevill Amendment exemption

, if the petition is granted and the alkaline pH level reduced , existing impoundments for other “non

- Bevill” wastes would be required to undergo hazardous waste permitting and potential modification.

► In the pulp and paper industry, because some wood and recovery area wastes are
manage d on

- site, existing Subtitle D unit s would have to be upgr aded to Subtitle C units, requiring Part B permits, or the materials would be sent offsite and the existing Subtitle D units would have to be closed. In either case, the costs would be significant.

► A smaller (70 employee) chemical manufacturer would fac e substantially increased costs for disposal of wastes that already are classified as hazardous (due to ignitability). The commercial hazardous waste incinerator to which these wastes are sent charges more for each additional applicable waste code . The a dditional charges reflect the costs to the incinerator for analysis and disposal of the resulting ash ( e.g ., to determine if the ash is corrosive and whether additional Land Disposal Restrictions (“ LDRs ”) apply). The facility’s waste broker estimates that the costs associated with adding the additional corrosivity hazardous waste code as between $0.25 and $0.65 per pound, depending on the material. This will add an additional waste disposal cost of between $338,000 and $880,000 annually (approximately

one

- third of the facility’s 4.1 million po unds of hazardous waste generated annually likely would be classified as D002 if the alkaline threshold were lowered to 11.5). That would mean increases of about $5,000

- $10,000 per employee, per year.

From a broader and historical perspective, the potential costs of handling lime

based wastes as hazardous was a primary reason that EPA chose the current (12.5) pH level forU.S. Environmental Protection Agency

September 30 , 2015 Page Thirteen K E L L E Y D R Y E & W AR R E N LLP

the corrosivity characteristic. 13 When EPA first proposed the corrosivity characte ristic, the agency identified an alkaline threshold of 12.0 pH. 14 However, several commenters raised concern s about that threshold limit leading to the management as hazardous waste of waste lime and materials generated from the use of lime and destined fo r discard. 15 After considering these comments, the Agency “agree[d] with the commenters that otherwise non

- hazardous lime stabilized sludges and wastes should not be designated as hazardous.” 16 As a result, EPA promulgated the alkaline threshold at 12.5 and made it only applicable to aqueous solutions. 17

The concerns expressed in 1980 are only more compelling in the case of the petition’s request given the enormous volumes and widespread industry use of lime products. Millions of pounds of lime

- based wastes currently are properly and safely handled in non

hazardous impoundments and treatment facilities. The nationwide cost to manage these materials as hazardous wastes would be astronomical and i s not needed to protect human health and the environment.

Aside from the specific costs identified above, a change in the corrosivity characteristic would have wide

- ranging impacts on industrial facilities across the country, some of which will face the need to comply with new or more onerous RCRA regulation for the first time. Many facilities have made great strides in their manufacturing operations to avoid classification as a “large quantity generator” (“LQG”) and worked hard to achieve “small quantity generator” (“SQG”) status. Changing the corrosivity s tand ard would negate all of the expensive, time

consuming, and environmentally beneficial work that went into establishing SQG status

.

Likewise, some facilities currently do not generate “hazardous” wastes, and would be forced to incur the substantial expense s associated with developing and implementing a RCRA hazardous waste program, including training, record

- keeping, and the costs associated with

necess ary capital improvements. For example, numerous entities that safely handle cement and lime

- based product s, from the smallest of contractors and home improvement suppliers to municipalities, and transportation departments, may now be responsible for “hazardous” wastes. They would experience not only additional costs for managing currently non

- hazardous waste s as hazardous, but ancillary costs associated with changing the way that the materials are managed

on

- site before they are sent to final management (either beneficial use or disposal). These costs are difficult to quantify but certainly would be signific ant

.

13 45 Fed. Reg. 33,083, 33,109 (May 19, 1980); Corrosivity Background Document at 14.

14 Corrosivity Background Document at 14 ; 43 Fed. Reg. 58,945 (Dec. 18, 1978).

15 Corrosivity Background Document at 14

.

16 Id.

17 45 Fed. Reg. at 33,109.U.S. Environmental Protection Agency

September 30 , 2015 Page Fourteen K E L L E Y D R Y E & W AR R E N LLP

IV. AMENDING THE CORROSIVITY STANDARD AS REQUESTED

IN THE PETITION WOULD RESTRICT THE BENEFICIAL REUSE OF LARGE QUANTITIES OF CURRENTLY NON

HAZARDOUS WASTE MATERIALS

Amending the corrosivity characteristic by reducing the alkaline pH level and applying the standard to solids would expand greatly the universe of RCRA hazardous waste and impose substantial economic, regulatory, and labor burdens on a variety of manufacturers

, contractors, municipalities, and retailers. I t also would foreclose the beneficial reuse of numerous large waste streams. Many of these examples are noted above, but it is worth emphasizing separately the lost productive value to the economy of being required to manage these beneficially used waste streams as “hazardous”

– that is, directing enormous quantities of material to landfills rather than putting them to productive use. To summarize several of the most salient examples:

► A substantial percentage of the 140 million tons of C&D debris recycled annually likely wou ld no longer be reused in applications such as for road bed or construction.

► State beneficial reuse authorizations, which generally are granted for high volume/low hazard wastes, would be threatened. For instance, the authorization for 350,000 tons of stainless slag aggregate produced by a stainless steel mill could be revoked, requiring landfill disposal of this useful material.

► A leather tanning facility currently generates 10,000 to 20,000 gallons per day of wastewater (underflow from t he facility’s clarifier) , with an average pH of 11.6 due primarily to the presence of lime

. Since 2008, t hese waste waters have been licensed under a state program for application to farm fields to support the growth of corn, soybeans

, and alfalfa. Classific ation of wastewaters with pH above 11.5 as hazardous would put a t risk the state approval and potentially stigmatize use of the waters by customers.

► The reuse and recycling of spent potliner refractory brick and WWT filter cake would be compromised, as many of the users of these materials will not accept “hazardous” wastes.

► Cement kilns that accept only non

- hazardous secondary materials would lose access to valuable high alkaline wastewaters , sludges, and filter cakes currently used as a feedstock.

► T he use of bark or wood waste boiler ash and pulp and paper recovery ar ea residuals for soil amendment , road base

, and other applications would be severely curtailed or eliminated.U.S. Environmental Protection Agency

September 30 , 2015 Page Fifteen K E L L E Y D R Y E & W AR R E N LLP

V. AMENDING THE CORROSIVITY CHARACTERISTIC WOULD

COMPROMISE EXISTING HAZARDO US WASTE TREATMENT METHO DS AND OTHER LANDFILL PRACTICES

Reducing the upper pH standard of the corrosivity characteristic to 11.5 would pose a significant dilemma for facilities engaged in the treatment and disposal of metal

- bearing hazardous wastes. As de tailed in the comments submitted by WM and NW RA, in order to comply with the LDRs , metal

- bearing wastes, as well as some liquid wastes, undergo alkalin e stabilization using reagents s uch as lime, cement kiln dust, p ortland cement, and fly ash. To date, there are no accepted alternative treatment methods for metal

- bearing wastes other than alkaline stabilization

. WM estimates that approximately 95 percent of these stabilized wastes will have a pH greater than 11.5. Hence, if the petition were granted, s tabilization of these wastes in accordance with LDRs will create a new characteristic alkaline waste. Treatment of these D002 “hazardous” wastes to reduce the pH through further treatment with acidic materials is not feasible

– indeed, it would be

nonsens ical, as acidic treatment would release the metal constituents that triggered the “hazardous” classification of the original material in the first place . Moreover, such neutralization (using an acid to neutralize alkaline material) would raise the potenti al for violent, heat

- generating reactions, and is obviously incompatible with the largely alkaline Subtitle C landfill environment.

Eliminating the disposal of alkaline (pH>11.5) waste streams from Subtitle D facilities also would have a detrimental effe ct on these landfills in further reducing their overall capacity , as the alkalinity of lime

- based and other wastes help s accelerate decomposition of landfill material.

VI. CLASSIFYING NUMEROUS WASTEWATERS AS HAZARDOUS

WOULD UPSET EXISTING BENEFICIAL LOCA L POTW DISCHARGE ARRANGEMENTS

N umerous survey responses from a wide spectrum of industries cited a common

concern: the impact a change in the standard would have on POTWs that receive alkaline
wastewater s from industrial facilities . Often, the local POT W welcomes the alkaline discharges

, which help buffer the relatively acidic nature of the POTW treatment train and the acidity of other wastewaters received by the utility. Survey respondents indicated that while local POTWs seek to maximize the alkaline contribution from indirect dischargers, they often either prescribe an upper pH limit of 12 or 12.5, or prohibit the discharge of “hazardous” waste.

To comply with such limits currently , some facilities engage in elementary neutralization of wastewaters to maintain the pH below 12. These facilities could comply with a more stringent “corrosivity” pH limit by redesigning the WWT pr ocess to provide more aggressive neutralization

, or to include a second neutralization step. 18 In that event, however, the POTW

18 One facility reported that currently it adjusts pH prior to conducting metal filtration, which is optimized at a pH of approximately 11. To maintain consistent compliance with a pH standard of 11.5 (or a POTW pH limit of 11 toU.S. Environmental Protection Agency

September 30 , 2015 Page Sixteen K E L L E Y D R Y E & W AR R E N LLP

would lose the benefit of the higher alkalinity discharges. Other facilities have discharges of pH around 11.5 and do not curre ntly employ neutr alization treatment. For these dischargers, the WWT process will have to be redesigned to incorporate pH adjustment at added expense to the facility and reduced benefit to the POTW

, which would have to incur additional expense to buy sodi um hydroxide or other alkaline materials to provide the alkalinity they need.

Another concern is that in reducing the pH of wastewaters to comply with local prohibitions on the discharge of “hazardous waste,” for some waste streams the alkalinity is

necess ary to avoid the release or production of hazardous substances. For example, a leather tanning facility currently dis charges wastewater with pH averaging approximately 11.6 to their local POTW without the need for pH adjustment. Th at alkalinity level has the benefit of keeping in solution any hydrogen sulfide that may be present, a necessary factor in protecting the treatment works and its employees from risks associated with the generation of hydrogen sulfide in the collection and treatment system

. If t he pH standard for corrosivity is lowered to 11.5 , the facility wi ll need to add pH correction equipment to achieve a target pH <11 to ensure compliance with the pH standard on a regular basis . Such treatment would risk the potential generation of hydrogen sulfide

– yet another counterproductive result from a proposal motivated by a concern to protect employees.

VII. AMENDING THE CORROSIVITY STANDARD WOULD NOT

RESULT IN A MEANINGFUL INCREASE IN WORKER PROTECTION

T he adverse impact s described above from a potential change to the corrosivity characteristic would be all the more regrettable because the petitio ners’ request would not red uce the anecdotal risks PEER cited from inhalation of caustic dust by emergency response personnel. Put simply, a m ending the RCRA standard would not alter the protections put in place for emergency response personnel and other workers by OSHA and related programs.

OSHA standards require employers to iden tify hazards and take steps to minimize, and to the extent possible eliminate

, risks to workers

. 19 A “hazard” from the perspective of the Occupational Safety and Health Act is a fact, not a legal conclusion. An employer’s evaluation of hazards that could pose a risk to workers managing m aterials at pH 11.5 or above

– or such an evaluation by emergency response personnel

– is to be based on “the intrinsic hazardous properties

provide a compliance buffer ), a second pH adjustment step would need to be added to lower the pH further after metal filtration.

19 See, e.g., OSHA standards for personal protective equipment (29 C .F.R. Part 1910, Subpart I), ventilation (29 C.F.R §1910.94), air contaminant limitatio ns (29 C .F.R § 1910.1000 ), and hazard communication ( 29 C .F.R § 1910. 1200, including the “hazard classification” requirements of 29 C .F.R § 1910. 1200(d)(1))

.U.S. Environmental Protection Agency

September 30 , 2015 Page Seventeen K E L L E Y D R Y E & W AR R E N LLP

of [the] chemicals” and do es not change based on whether or not a given waste is classified as RCRA “hazardous. ” 20

T he Hazard Communication (“HazCom”) standard does not mandate a specific pH level for the required evaluation of corrosive hazards

. Rather, OSHA defines a substance corrosive to skin as “ a chemical that produces destruction of skin tissue, namely, visible necrosis through the epidermis and into the dermis, in at least 1 of 3 tested animals after exposure up to a 4

- hour duration. ” No testing is required, but an employer must consider all available scientific evidence concerning the hazard of a chemical , inc luding information in safety data sheets and from sources such as 29 C

. F

. R . Part 1910, Subpart Z and ACGIH Threshold Limit Values for Chemical Substances and Physical Agent s in the Work Environment. 21

While the HazCom standard does note that, “i n the abs ence of any other information, a substance is considered corrosive (Skin Category 1) if it has a pH ≤ 2 or a pH ≥ 11.5,” OSHA recognizes that other factors besides pH play a role in properly characterizing corrosivity ( e.g ., alkali/acid reserve capacity)

. 22 Regardless, this default value

– and the evaluation of potentially corrosive hazards generally

– does not rely on the RCRA standard for defining “corrosive” hazardous wastes , and would not be affected by a change in that standard

.

It is true that the s cope of the RCRA definition of “hazardous waste” does affect, in turn, the scope of OSHA regulations governing hazardous waste operations and emergency response (“HAZWOPER”)

. This is because HAZWOPER, which applies to emergency response personnel, among o thers

, extends to activities involving “hazardous substances” which are defined to include, in part, RCRA “hazardous waste.” 23 However, t his connection also is largely irrelevant. Under HAZWOPER, all of the requirements of Part 1910 are incorporated, incl uding the provisions of HazCom requiring hazard classification and communication for substances that are not classified as “hazardous waste.” 24 Hence, t he procedures for protecting workers from the risks posed by high pH materials will not be affected if E PA revises the RCRA corrosivity standard.

20 See 29 C.F.R. §1910.1200, Appendix A, § A.0.1.1.

21 See id. §A.2

.

22 Id. As will be discussed in the Coalition’s forthcoming submission, the standard for characterizing wastes as “hazardous” similarly requires consideration of additional factors

.

23 29 C.F.R. §1910.120(a)(3).

24 The HAZWOPER r egulations explicitly state : All requirements of Part 1910 and Part 1926 of Title 29 of the Code of Federal Regulations apply pursuant to their terms to hazardous waste and emergency response operations whether covered by this section or not. If there is a conflict or overlap, the provision more protective of empl oyee safety and health shall apply

... . 29 C.F.R. §1910.120(a)(2)(i). This would include the HazCom definition for “corrosive” materials.U.S. Environmental Protection Agency

September 30 , 2015 Page Eighteen K E L L E Y D R Y E & W AR R E N LLP

The bottom line is that r isks from materials, solid and liquid, with pH of 11.5 or 12.5 or higher, already are effectively managed and addressed through existing worker protection
programs . Coalition members are unaware of any injuries or other adverse effects on their own workers result ing from exposure to wastes with elevated pH, with the exception of rare and isolated instances where required safety procedures were not followed. The o verriding fact is that, today,

m illions of pounds of high pH wastes are properly and safely handled where they are generated and in non

- haz ardous waste landfills , surface

, impoundments

, and other treatment facilities. Accordingly, the petition request wou ld serve only to impose substantial management burdens and economic costs without offering any practical improvements in worker safety

.

* * * *

The Coalition appreciates the opportunity to provide the foregoing information to EPA and urges the agency to deny the petitioners’ request. In a follow up submission, the Coalition will provide additional analysis regarding the legal merits of the petition, or lack thereof. We would be happy to discuss this information or provide further clarification to the ag ency. If you have any questions or would like additional information, please contact John Wittenborn at 202.342.8514 or JWittenborn@KelleyDrye.com or Joe Green at 202.342.8849 or JGreen@KelleyDrye.com

. Respectfully submitted,

John L. Wittenborn Joseph J. Green Counsel to the Coalition