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August 7, 2009 

ATTORNEYS AT LAW

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WRITER'S DIRECT LINE 

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rstoll@foley.com EMAIL

Mr. Matthew Hale, Director 

Office of Resource Conservation & Recovery 

U.S. EPA (5301P) 

1200 Pennsylvania Ave., N.W. 

Washington, D.C. 20460 

 Re: Concerns Over “Stigma” for Coal Combustion Products

Dear Matt: 

Thank you for agreeing to meet with representatives of my client, Lafarge North 

America, Inc., and me on August 18 to discuss Lafarge’s concerns regarding EPA’s development of 

RCRA regulations for coal combustion waste (CCW). You probably know that Lafarge is a major 

manufacturer of Portland cement and related construction products. You may not know, however, 

that Lafarge also utilizes, manages, and markets coal combustion products (CCPs) in the U.S. 

During our meeting, we can describe Lafarge’s CCP practices. In advance of that 

meeting, however, we would like stress certain points for your consideration, as we recognize that 

you and ORCR staff are working to meet the agency’s goal of publishing a proposed rule by the end 

of 2009. 

Lafarge’s primary concern is the potential for EPA’s rules to present a barrier to 

beneficial reuses of CCW. As you may recall, EPA’s Bevill Determination for CCW in 2000 was 

based in significant part on EPA’s desire to avoid placing “barriers on the beneficial uses of coal 

combustion wastes so they can be used in applications that conserve natural resources and reduce 

disposal costs.” 65 FR at 32221, May 22, 2000. 

We understand that EPA may be considering proposing RCRA Subtitle C controls on 

the disposal of CCW, while exempting (either wholly or conditionally) some types of CCP uses from 

the Subtitle C regime. Lafarge is quite concerned about any approach that would classify disposed 

CCW as a Subtitle C hazardous waste. Lafarge believes that any type of Subtitle C coverage for 

CCW would place a “stigma” on all CCW and CCP, and would impose a significant deterrent on 

CCP beneficial use practices. 

In its 2000 Determination EPA stated that it would be “particularly concerned” about 

any adverse effect on beneficial re-use markets, noting that more than 23 percent of the total CCW 
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August 7, 2009 

Page 2 

generated each year is beneficially reused. Id. At 32217. Nine years later, in part due to EPA’s 

choice not to subject CCW and CCP to the stigma of hazardous waste, more than 40 percent of 

CCW is beneficially reused. 

We believe it is now more important than ever to avoid stigmatization that would 

deter CCP usage. The name of the statute is, after all, the Resource Conservation and Recovery Act. 

Any CCW that is no longer destined for beneficial reuse will be destined instead for landfill disposal 

– a result that would defeat a major purpose of RCRA. 

Response to Public Interest Groups’ Arguments Regarding Lack of Stigma

(1) Other Recycled Products

On June 5, 2009, several public interest groups sent a letter to every member of 

Congress arguing, in effect, that fears of “stigma” for CCPs are speculative and overblown. A copy 

of their letter is attached. They assert that Subtitle C regulations for CCW “can simultaneously 

promote coal ash recycling and protect the public and environment” because EPA’s regulations 

could classify disposed CCW as a hazardous waste yet treat CCP “as a non-hazardous product when 

it is safely recycled.” 

They assert: “EPA has made these distinctions many times before without damaging 

the market for recycled products.” While this assertion may generally be correct regarding the types 

of “recycled products” that EPA has excluded from Subtitle C, it is wholly inapplicable to the 

situation of CCW and CCP. As explained below, CCPs – and the markets for CCPs – are 

significantly different from the recycled products to which the public interest groups refer. 

 The hazardous wastes from which recycled products are derived include waste 

solvents, spent sulfuric acid, and metal-bearing waste. These materials almost always require 

significant processing, distillation, chemical treatment, or smelting to be turned from a waste into a 

product. In most situations the end product is still a hazardous material under various federal and 

state laws and is sold back into a market that is otherwise purchasing hazardous materials – with all 

of the risks and associated management practices that purchasers would be using to handle 

equivalent virgin materials. 

 For instance, waste solvents are recycled using various forms of distillation that 

remove contaminants and render the solvent suitable for reuse. Often they are sold back to the same 

companies that generated them as wastes in the first place. Most are still considered hazardous 

under DOT shipping regulations and users handle them as hazardous materials just as they would 

virgin solvents. 

 Sulfuric acid is recycled by feeding it to a furnace where it is thermally broken down 

and then reconstituted as sulfuric acid, indistinguishable from the sulfuric acid produced from other 

sources of sulfur. Obviously sulfuric acid is then sold into the market as a hazardous material. 
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August 7, 2009 

Page 3 

 Metal bearing hazardous waste is often fed to smelters where the metals are thermally 

extracted from contaminants. Alternatively, some metals are recycled by using chemical extraction 

and purification methods. Such metals are resold into the chemical market place – often as 

hazardous materials depending on the nature of the metal or metal salt. Some of these recycled 

metal salts are used in fertilizers but they must meet strict controls on contamination. 

 A very small fraction of waste solvents are “clean” enough to fall into RCRA’s 

“comparable fuel” exemption where they are burned in an industrial boiler, often at the same site 

where they are generated. 40 C.F.R. §261.38. This exemption does not eliminate the fact that these 

materials often continue to be treated as hazardous materials since they are frequently flammable 

and some are considered toxic. They can only be used as “products” in certain types of industrial 

boilers, and they do not openly enter a commodity-based nationwide market place. 

 The contrasts these recycled products present to the CCP situation are stark and vivid. 

First, in virtually all of these recycled product situations, the product is readily distinguishable 

chemically and physically from the hazardous waste used to produce the product. Recycled solvent 

product is not the same material as a waste solvent, and recycled sulfuric acid is not the same 

material as spent sulfuric acid. In almost all cases of CCP utilization, however, the CCP is exactly 

the same as CCW physically and chemically – the CCW goes through no distillation, processing, 

smelting, etc. before it becomes CCP. 

 Second, products from recycled hazardous waste typically are utilized only in 

industrial settings, and in situations where both the recycled product and the virgin product for which 

it substitutes are clearly hazardous materials. Users fully understand and expect the product to be a 

hazardous material and are equipped to manage the materials as hazardous. This is absolutely not 

the situation with CCPs. CCPs have a wide variety of beneficial uses in non-industrial settings 

(including home building) in which users are not accustomed to handling or accepting materials that 

have been designated hazardous – especially hazardous wastes. Moreover, there are readily 

available alternatives to CCPs available in the market place which are not associated with any 

hazardous waste designation. 

 Thus, if EPA listed disposed CCW as a hazardous waste, potential CCP users would 

be confronted with the fact that exactly the same material they could choose to use has been 

officially declared a hazardous waste. While EPA’s regulations might say that CCP used beneficially 

is not a hazardous waste, the plain and simple fact would be that the CCP material would be 

physically and chemically the same as a hazardous waste. When there are plenty of substitute 

materials available that do not carry this baggage, it is obvious that consumers would be highly 

motivated to avoid the CCP. As explained above, the same facts simply do not apply to the recycled 

solvent and similar situations, so the public interest groups’ argument simply misses the point. 

 
FOLEY & LARDNER LLP

August 7, 2009 

Page 4 

(2) CERCLA Hazardous Substances

Public interest group representatives have also argued that since the passage of 

CERCLA in 1980 all CCW and CCP contains CERCLA “hazardous substances,” and that has not 

resulted in any stigma that has deterred CCP usage. That argument is equally unpersuasive and 

unavailing. 

There is hardly any material that does not contain CERCLA hazardous substances, 

including natural soils and trees. Moreover, CCW is not listed as a CERCLA hazardous substance, 

it simply contains some of the substances on the list. This pales by comparison to the impact of 

having a material explicitly named on EPA’s list of RCRA hazardous wastes. 

We should also note that while this is not rational, in the minds of the general public 

any combination of the words “hazardous waste,” “toxic waste,” or “chemical waste,” conjures up 

the specter of Love Canal, the Valley of the Drums, cancer, birth defects, and worse. This public 

phobia regarding hazardous wastes is also manifested in many judicial decisions. 

In many states, established judicial precedent holds that hazardous wastes are 

“abnormally dangerous” or “ultra hazardous,” giving rise to “absolute” liability.1

 Judges deciding 

cases involving alleged injury from hazardous wastes have been quick to hold defendants liable. 

Some of the more colorful opinions have referred to hazardous waste as a “Frankenstein monster”2

and as posing “the same threat to health and welfare today as the detonation of dynamite.”3

These cases did not deal with a situation in which EPA had listed a material as a 

hazardous waste when disposed, but not when used as a product. But in alleging a CCP had caused 

a personal injury, plaintiffs’ lawyers could obtain an advantage if they could show that the material 

in question is exactly the same material physically and chemically as a listed RCRA hazardous 

waste. Once they show that, they can start quoting cases about Frankenstein monsters and dynamite. 

We do not endorse or support these doctrines or cases, of course, but plaintiffs’ 

lawyers are certainly aware of them. And since prospective purchasers and users will presumably 

want to minimize their risks of tort liability, they will have great incentive to avoid purchasing or 

using the “monster” in the first place. 

* * * * * * * * * * * 

 1 E.g., New Jersey v. Ventron, 468 A.2d 150 (N.J. 1983). 

2 Kenney v. Scientific, 407 A.2d 1310, 1320 (N.J. Super. Ct. Law Div. 1985). 

3 Schwartzman v. Atchison, Topeka & Santa Fe., 842 F.Supp. 475, 479 (D.N.M. 1993). 
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August 7, 2009 

Page 5 

It is thus entirely logical and reasonable to expect that when purchasers and users of 

products are presented with a choice between a material which – in exactly the same physical and 

chemical form – has been officially designated as an EPA hazardous waste and a material which has 

not been so designated, that purchasers and users would choose the latter. We hope you and others 

at EPA will consider these concerns most seriously. 

Very truly yours, 

Richard G. Stoll 

cc: Robert M. Sussman 

 Mathy Stanislaus 

 Barry Breen