Privileged & Confidential Attorney- Client Communication Draft 12/3/10

WDC_IMA

NAGE
- 1534447.4 - i
- Comments Regarding EPA Notice of Proposed Rulemaking: Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals From Electric Utilities

75 Fed. Reg. 35128 (June 21, 2010) TABLE OF CO NTENTS INTRODUCTION ................................ ................................ ................................ .......................... 1 SUMMARY OF POSITION ................................ ................................ ................................ ......... 1 DISCUSSION ................................ ................................ ................................ ................................ . 2 I. BOILER SLAG IS VITRIFIED AND DOES NOT MERIT SUBTITLE C REGULATION ................................ ................................ ................................ ........................ 2 A. Boiler Slag And The Process By Which It Is Created Have Remained Unchanged For Decades ................................ ................................ .............................. 2 B. The Vitrified Nature Of Boiler Slag Renders Any Associated Environmental And Human Health Risks Negligible ................................ ............... 4 C. No Future Equipment Changes Or Modifications To Operating Procedures At Coal- Fired Electric Utilities Will Alter The Nature Or Properties Of Boiler Slag ................................ ................................ ............................. 6 D. The TCLP Test Data Confirm That Boiler S lag Should Not Be Regulated Under RCRA Subtitle C ................................ ................................ .............................. 7 1. The boiler slag data EPA cites in the record show no leachate levels of concern. ................................ ................................ .............................. 7 2. TCLP test data for Harsco’s raw materials show no RCRA concerns associated with boiler slag. ................................ ............................ 11 3. The most recent TCLP tests on Harsco’s products demonstrate that boiler slag produces no leachate concentrations of concern. ............. 12 E. EPA’s Alternate Leachate Testing Results Do Not Justify Regulating Boiler Slag Under Subtitle C ................................ ................................ ..................... 14 1. Impropriety of alternate leachate test method. ................................ ........... 14 2. No evidence in this administrative record. ................................ .................. 15Privileged & Confidential Attorney- Client Communication Draft 12/3/10

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3. Harsco’s own testing of boiler slag under the Vanderbilt method shows there is no basis for subjecting boiler slag to a Subtitle C rule. ................................ ................................ ................................ .................. 15 F. The Need For Improved Physical Safeguards At CCR WasteManagement Units Does Not Justify Subtitle C Regulation ................................ .. 19 G. The Record Does Not Contain Adequate Support For Dismantling EPA’s Existing CCR Policy ................................ ................................ ................................ .. 21 II. NONE OF THE CCR WASTES SHOULD BE REGULATED AS A SUBTITLE C WASTE, BUT IN NO CASE SHOULD BOILER SLAG WASTE BE ASSIGNED THAT STATUS ................................ ................................ ................................ 23 A. EPA’s Proposal To Regulate All Four Waste CCRs Under Subtitle C In Exactly The Same Fashion Improperly Disregards The Disparate Characteristics Of Eac h Waste CCR ................................ ................................ ....... 23 B. A Proper Comparison Of The Docket Materials To The Listing Criteria In 40 C.F.R. § 261.11 Shows Boiler Slag Should Not Be Listed ............................ 24 C. The Proven and Potential Damages Cases EPA Cited To Support The Proposed Rulemaking Do Not Involve Waste Boiler Slag ................................ ..... 26 D. The Risk Assessment Summary Information EPA Uses To Support The Proposal Does Not Provide An Adequate Basis For Regulating Boiler Slag ........ 27 E. EPA’s Prior Regulatory Determinations And Bevill Amendment Findings Remain Valid For Boiler Slag ................................ ................................ ................... 28 F. A Single Subtitle D Regulation For All Waste CCRs Could Be A Reasonable Solution ................................ ................................ ................................ ... 29 III. IF EPA ELECTS A SUBTITLE C APPROACH, THE RULE MUST TACITLY EXEMPT BENEFICIALLY REUSED BOILER SLAG FROM REGULATION .......... 30 A. Beneficially Reused Boiler Slag Must Be Expressly Exempted From Any Subtitle C Regulation ................................ ................................ ................................ . 30 B. The Rule Must Define All Boiler Slag Products As Totally “Encapsulated” ................................ ................................ ................................ .......... 31 C. Any Beneficial Reuse Exemption Must Encompass All Steps In The Beneficially Reused Product’s Life Cycle ................................ ................................ 31Privileged & Confidential Attorney- Client Communication Draft 12/3/10

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- IV. COMPANIES INVOLVED WITH BENEFICIALLY REUSED CCRS ARE UNFAIRLY EXPOSED TO LITIGATION ................................ ................................ ........ 32 A. Lawsuits Will Come From A Variety Of Sources ................................ ................... 32 B. Harsco Already Feels The Effects Of These Increased Liability Concerns ......... 34 C. Given Past Experiences With Environmental Claims, The Threat Of Liability Is Real ................................ ................................ ................................ .......... 34 1. Superfund and equivalent laws ................................ ................................ .... 34 2. T ort suits ................................ ................................ ................................ ......... 34 V. RECLASSIFYING WASTE CCRS UNDER SUBTITLE C WILL SUBJECT ALL CCRS TO AN UNJUSTIFIED AND PUNITIVE STIGMA ................................ ..... 35 A. Harsco Already Feels The Negative Effects Of The Stigma ................................ .. 35 B. Beneficial Reusers Of CCRs Should Not Be Forced To Fight Claims That CCRs Are Hazardous Based On A CCR Waste Disposal Rule ............................. 40 C. Boiler Slag Is Vulnerable To Stigma Concerns Because Of The Nature Of Boiler Slag Users ................................ ................................ ................................ ........ 4 3 D. A New Subtitle C Regulation Would Set A Baseline That States Could Exceed ................................ ................................ ................................ ......................... 44 E. Subjecting CCRs To Subtitle C Special Waste Status Would Create A Legal Barrier To Their Beneficial Reuse In Many States ................................ ...... 46 F. Businesses Have Been Damaged Significantly When Customers Wrongly Consider A Product To Be “Hazardous” ................................ ................................ . 47 G. Negative Stigmas Have Powerful Effects ................................ ................................ . 49 H. EPA Has An Obligation To Consider Potential Stigma And Resulting Adverse Effects ................................ ................................ ................................ ........... 50 VI. RECLASSIFYING WASTE BOILER SLAG AND OTHER WASTE CCRS AS SUBTITLE C SPECIAL OR HAZARDOUS WASTE WOULD BE ARBITRARY OR CAPRICIOUS ................................ ................................ ........................ 52 A. The Boiler Slag Data Are Inadequate To Justify Subtitle C Regulation .............. 52Privileged & Confidential Attorney- Client Communication Draft 12/3/10

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- B. There Is No Sound Reason To Change The Existing CCR Policy That Created The Beneficial Reuse Industry ................................ ................................ ... 54 CONCLUSION ................................ ................................ ................................ ............................ 58Privileged & Confidential Attorney- Client Communication Draft 12/3/10

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- INTRODUCTION Harsco Corporation (“Harsco”), the leading recycler of boiler slag in the U.S., submits these comments in response to the U.S. Environmental Protection Agency ’s (“EPA’s”) Notice of Prop osed Rulemaking concerning the “Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities.” 7 5 Fed. Reg. 35128 (June 21, 2010) (“the NPRM”). B oiler slag is one of the four ty pes of coal combustion residuals (“CCRs”) that EPA has proposed to regulate under either Subtitle C or Subtitle D of the Resource Conservation and Recovery Act (“RCRA”). Harsco is a member of the regulated community that will be heavily

affected by

any EPA regulations governing CCRs, especially those that would classify C CRs destined for disposal as “special wastes” or “hazardous wastes” pursuant to RCRA Subtitle C. Accordingly, Harsco has
a substantial interest in the development of these regulations and can offer important insights regarding: (i) the boiler slag industry and its customers; (ii) products derived from the beneficial
reuse of boiler slag; (iii) boiler slag’s chemical and physical properties; (iv) scientific, technical, and testing issues related to boiler slag; (v) the proposal’s broader effects on the CCR industry in general; and (v) the potential economic impacts of the rules that EPA has proposed to adopt. SUMMARY OF POSITION EPA does not have an adequate factual basis for subjecting boiler slag and the other CCRs to Subtitle C regulation. Based on the administrative record, the Agency should reject any proposal that would regulate discarded boiler slag or any other discarded CCRs as either “special” or “hazardous” wastes under Subtitle C of RCRA. Furthermore, there is no sound- 1
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basis in the docket’s materials for subjecting any recycled or beneficially reused boiler slag to Subtitle C requirements. Boiler slag is a well
-known material that has always been produced in the same way and has always exhibited the same physical and chemical properties. B oiler slag is, and always has been, a solid vitrified glassy material that encapsulates and thereby immobilizes its components by f orming metal silicates. The available leachate testing data concerning boiler slag have been unchanged for ye ars -- metals do not leach from boiler slag at potentially h azardous concentrations. EPA previously reviewed the same boiler slag leachate testing data that appear in this record, and, each time, EPA found that the data supported a non-hazardous classification for boiler slag. This rulemaking record contains no new technical or scientific information concerning the nature or properties of boiler slag that would support a change from EPA’s existing RCRA policy

with regard to boiler slag. Adoption of the Subtitle C option would cause significant economic harm to Harsco and others in the CCR
-related industries. Numerous businesses have relied on EPA’s prior CCR
classification decisions to develop and serve a well
- established market that beneficially reuses boiler slag and other CCRs. S ubjecting producers and users of those CCR
-based products to the stigma of Subtitle C regulation would wreak unjustified financial havoc on them, even if the beneficial use of boiler slag is exempted f rom Subtitle C special waste status. B ecause the docket lacks any compelling new evidence of potential human health or environmental risks associated with boiler slag, EPA lacks an adequate basis for reclassifying boiler slag. EPA can use its Subtitle D authority to achieve its goals of ensuring proper management of waste CCRs without causing unnecessary harm to the CCR reuse industry
. The record shows the physical materials management issues presented by c ertain ty

pes of CCR disposal practices would be best addressed by adopting a reasonable and appropriate Subtitle D rule focused on- 2
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waste unit construction, operation, and closure standards and related financial assurance requirements. This is what EPA concluded in its May 2 2, 2000 Regulatory

D etermination (see 65 Fed. Reg. 32213 (May 2 2, 2000)), and that conclusion remains valid today
. EPA has acknowledged that the potential concern is really a physical management issue as evidenced by its recent collection of data on impoundment physical integrity. [ JIM TO PROVIDE CITE/ARTICLE.] The administrative record does not support changing the Agency ’s existing policy regarding CCRs’ RCRA status and reclassifying waste boiler slag and other waste CCRs as listed RCRA Subtitle C “special” or “hazardous” wastes. Such an action would be arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C. §§ 551, et seq. (“APA”). DISCUSSION I. BOILER SLAG I S VITRIFIED AND DOES NOT MERIT SUBTITLE C REGULA

TION A. Boiler

S lag And The Process By Which It Is Created Have Remained Unchanged For

Decades From the moment it is created, boiler slag is a vitrified, gl ass - like solid material that renders its constituents essentially inert and immobile in the environment. B oiler slag onl y comes into being when the coal ash in slag tap and cyclone ty pe wet -bottom furnaces is heated to the point of melting, and that extremely hot liquid coal ash is rapidly cooled by direct application of cold water. This water
- quenching step super cools the molten coal ash and changes it into the
vitrified material known as boiler slag. Slag tap and cyclone ty

pe furnaces are two different ty pes of wet-bottom furnaces that have been in operation in the United States since about 1942. As lag
-tap furnace burns pulverized coal, and a cyclone furnace burns crushed coal. N either ty pe of these furnaces has- 3
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been built in the United States since the 1960s. B oth ty pes of furnaces are operated at very high temperatures so that the bottom ash is always kept in a molten state. Periodically, the molten ash is drawn off from the furnace bottom by allowing it to flow downward into an ash hopper that contains the quenching water. The quenching process that creates the boiler slag has always been a normal part of the operating procedures for these wet-bottom furnaces. B ecause the operating procedures for existing wet-bottom furnaces have not changed in 50 years and no one is building new wet-bottom furnaces , the nature of the resulting boiler slag has not changed and will not change. See National Research Council , Managing Coal Combustion Residues in Mines (2006) at 30. Only a bout 2.2 million tons of boiler slag is generated annually n ationwide, and almost all of that boiler slag (about 2.0 million tons per ye ar) is beneficially reused. E lectric utilities with wet-bottom furnaces sell boiler slag to Harsco and other companies that beneficially reuse the material. H arsco annually purchases about 1 million tons of boiler slag and incorporates the vast majority

o f each ye ar’s purchases in products that beneficially reuse boiler slag. Last ye ar, for example, we used about 1.1 million tons of boiler slag in our products. N early 50 percent of the boiler slag we purchase is used as an abrasive, and about the same amount is incorporated into roofing shingles. Approximately two percent of our boiler slag is beneficially reused in other ways, e.g. , by

b eing used as a road traction material, wastewater filtration system component, glass making ingredient, or a mineral filler in asphalt production. Some portion of
our annual boiler slag purchases may b e stockpiled for use in subsequent ye ars, and a small percentage will be discarded for failure to meet product sizing specifications.- 4
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B. The Vitrified Nature Of Boiler S lag Renders Any Associated Environmental And Human Health Risks Negligible Boiler slag is a vitrified and glass
- like substance with an amorphous, non- crystalline structure. See EPA, Vitrification Technologies for Treatment of Hazardous and Radioactive Waste , EPA/625/R
- 92/002 (May 1 992) (“EPA Vitrification Techno logies ”) at Chapter 2. A s a result, boiler slag immobilizes the wide variety o f inorganic constituents that are present in its precursor material
-- molten coal ash. See id
. The vitrification process immobilizes some of these inorganic materials by c ausing them to bond chemicall y or ionically with the glass
- forming materials in the vitrified mass. Id
. at 2
- 3 to 2
- 4. The other inorganic materials are immobilized within the mass when they are completely surrounded and, thereby, encapsulated by a l ayer of the vitrified materials. Id
. at 2
- 4. These chemical and physical immobilization mechanisms significantly inhibit the movement of the inorganics from the vitrified mass. Id
. at 2
- 4. A s a result of boiler slag’s vitrified nature, the individual component s within the boiler slag have an extremely low potential to leach, become airborne, or otherwise escape from the glass y matrix. While vitrified materials are not immune to all chemical reaction, vitrified materials do “exhibit high corrosion resistance compared with many other materials.” Id. at 2
- 4. In fact, EPA has said, “[i]n most instances, this waste glass [produced by vitrification] performs exceptionally well in leach tests.” Id. at 1
- 2. “[W]aste glasses of many ty pes have shown reduced leachabil ity of inorganics.” Id
. at 7
- 1. EPA also has referred approvingly to the chemical and physical durability o f vitrified materials. Id
. at 1
- 2. The Agency h as even gone so far as to say : “Although not measured directly, the long
-term durability o f waste glass appears to be excellent and may extend to geologic time periods, as indicated by natural glass systems that have been stable for millions of years.” Id. at 7
- 1.- 5
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Harsco’s own assessment of boiler slag’s physical durability i s consistent with the
conclusions reported in EPA Vitrification Technologies
. In preparing the Material Safety Data Sheet (“MSDS”) for Harsco’s Black Beauty®Abrasives and Roofing Products, we conducted appropriate inquiries to identify and document boiler slag’s physical properties. A s noted, in the MSDS, the boiler slag has:

 A physical form that is solid (angular granules);

 A melting temperature above 2,500° F;

 A ty pical specific density of 2.7 g/cc; and

 Negligible water solubility. See Harsco Black Beauty® MSDS dated December 5, 2007 at 1. Furthermore, the information listed in the Black Beauty® MSDS indicates that boiler slag is “nonflammable, non- explosive and stable under normal conditions of use, storage and transportation.” Id. at 1. The MSDS also notes that uncontaminated boiler slag does not exceed the Toxicity C haracteristic Leaching Procedure (“TLCP”) limits (see id. at 2), and this statement is consistent with the available TCLP data Harsco has referenced elsewhere in this submission (see, e.g. , pages ___.) Our review of the literature indicated that the metals and other constituents found in boiler slag do not present potential RCRA concerns because of their nature, concentrations, or encapsulated status. A s the Black Beauty®M SDS demonstrates, none of the identi fied boiler slag components that are present above de minimis concentrations (silicon dioxide, quartz, aluminum oxide calcium oxide, iron oxide, magnesium oxide, potassium oxide, and titanium oxide) presents RCRA Subtitle C concerns. See MSDS at 1. T ogether, those listed components ty pically account for about 99% of boiler slag by weight. See MSDS at 1. There are some metals of potential Subtitle C concern that can be found in boiler slag at total concentrations- 6
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below 0.1 percent, but all available TCLP data show that none of the metals present potential RCRA Subtitle C concerns. [CITE OTHER SECTION OF THIS SUBMISSION.] As demonstrated by

the physical and chemical data, boiler slag is a completely vitrified material that encapsulates and generally immobilizes its various constituents. Accordingly, none of its constituents will escape from the glass y matrix at concentrations that could present significant risks to human health or the environment. Taken together, these data show that boiler slag does not present potential concerns that warrant regulation under RCRA Subtitle C. C. No Future Equipment Changes Or M odifications ToOperating Procedures At Coal- Fired Electric Utilities Will Alter The Nature Or P ro perties Of Boiler Slag There is no basis for conc luding that the increased use of advanced air
-pollution control technologies at coal
- fired power plants will have any e ffect on either the makeup of boiler slag’s constituents or the potential for those constituents to leach from the boiler slag. H arsco understands that these potential concerns could arise onl y if the new air pollution
- control technologies are incorporated on furnaces during new construction or added during modifications of existing furnaces. In fact, EPA looked at this very i ssue in its report that evaluated “changes in composition and constituent release that may o ccur to fly

ash and other coal combustion residues (CCRs) in response to changes in air pollution control technology at coal
- fired plants.” EPA, Characterization Of Coal Combustion Residues From Electric Utilities

-- Leaching and Characterization Data , EPA
- 600/R
- 09/151 (Dec. 2009) (“EPA Dec. 2009”) at ii. The Agency

then observed that, “ boiler slag and bottom ash are not of interest in this study because air emission controls are not expected to change their composition .” Id
. at 1 (emphasis added).- 7
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None of the advanced air
-pollution control technologies identified in the NPRM will affect the boiler slag produced in wet
-bottom furnaces
-- the only f urnaces that create boiler sl ag. No power plants are purchasing and installing new slag tap or cyclone ty pe wet-bottom furnaces today
. National Research Council, Managing Coal Combustion Residues in Mines (2006) at 30. In addition, we have seen no evidence that existing slag tap or cyclone ty pe furnaces are being modified and retrofitted with the advanced air
-pollution control technologies that could alter the nature of the furnace’s ash and the resulting boiler slag. Instead, we have observed that existing wet-bottom furnaces continue to operate in their original form, are being retired, or are being retrofitted so they

can burn fuels other than coal. Based on the foregoing, there is no reasonable basis for expecting facilities to install advanced air
-pollution control technologi es on wet-bottom furnaces that would have the potential to alter the resulting boiler slag’s composition. Even if circumstances changed and
some wet-bottom furnaces received any of the new advanced air
-pollution control technologies that could theoretical ly

change the mix or concentrations of constituents within the boiler slag, there should be no increased risk to humans or the environment. The vitrification process that encapsulates the boiler slag’s constituents would prevent any changes in the constituent levels currently found in boiler slag leachate tests. See pages ___ - ___ below. D. The TCLP

T est Data Confirm That Boiler S lag Should Not Be Regulated Under RCRA Subtitle C 1. The boiler slag data EPA cites in the record show no leachate levels of conce rn. The Toxicity

Characteristic Leaching Procedure (“TCLP”) 1 test results for boiler slag in the record demonstrate that boiler slag does not meet EPA’s toxicity characteristic criterion for

1 This is the leachate test incorporated in the RCRA regulations at 40 C.F.R. § 261.24, as the only test for determining whether a solid waste exhibits the hazardous characteristic of toxicity bec ause of certain constituent concentration in the resulting leachate,- 8
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regulating a particular solid waste as a special or hazardous waste under Subtitle C. This is consistent with our expectations. T o Harsco’s knowledge, it is very rare for any boiler slag tested using the TCLP test method to produce leachate exhibiting constituent concentrations above the RCRA toxicity characteristic regulatory

levels. The technical and analy

tical materials cited in the proposal and the docket concerning boiler slag present precisely the same TCLP leachate data that EPA used to support its ex isting policy o f keeping boiler slag and the other CCRs outs ide the reach of RCRA’s Subtitle C. 5 8 Fed. Reg. 42466 (Aug. 9, 1993); 65 Fed. Reg. 32213 (May 2 2, 2000). In its prior reviews of the RCRA status of CCRs, EPA examined TCLP test data showing that boiler slag’s constituents almost never leach at concentrations above their RCRA toxicity characteristic regulatory l evels. EPA’s Technical Background Document For The Report To Congress On Remaining Wastes From Fossil Fuel Combustions W aste Characterization (March 15, 1999) (“EPA 1999 Technical Background Docum ent”) included a table that provided “Boiler Slag TCLP Data (mg/l).” See id. at 3
- 5, Table 3
- 5. S imilarly, in its 1988 Report to Congress, EPA found that the extraction procedure testing performed on all of the CCRs produced average concentrations that were below the relevant RCRA hazardous waste criteria. EPA, Office of Solid Waste and Emergency Response, Report to Congress: Wastes from the Combustion of Coal by Electric Utility Power Plants (1988) (hereinafter “ 1988 Report to Congress ”) at 5
- 25. Boi ler slag TCLP test results cited in the docket do not justify subjecting waste boiler slag to Subtitle C rules. M ost of the samples listed in Table 3
- 5 of EPA 1999 Technical Background Document exhibited no detectable concentrations of the tested metals even in analys es performed with low laboratory
- detection limits. Id
. The reported mean and median metal concentration values in the boiler slag’s leachate were all well below the RCRA toxicity characteristic regulatory

l evels. Id
. While the EPA 1999 Technical Background Document ’s- 9
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entries for TCLP tests on boiler slag reported one each of detected values of chromium, lead, and mercury a bove their respective RCRA regulatory l evels, the high percentage of samples reported
as non- detects, the very

l ow median concentrations, and the very l ow mean concentrations all strongl y suggest that these reported maximum detection values, if accurate, were isolated outliers, or were not representative of boiler slag as defined in the proposed rule. Notably, as part of the 1983 risk
- screening process, EPA examined the available boiler slag leachate data and concluded that boiler slag could “be eliminated from further analysis.” EPA, Supplemental Analysis of Potential Risks to Human Heath and the Environment from Large
- Vo lume Coal Combustion Waste (July

3 0, 1993) at 9; see also , 58 Fed. Reg. 42466, 42474 (Aug. 9, 1993) (explaining screening criteria). In its 1993 Regulatory

D etermination, EPA looked at both Extraction Procedure (“EP”) and TCLP leachate test data and found little evidence of any e levated concentrations of metals in the CCR
- derived leachates. See 58 Fed. Reg. 42466, 42467
- 68 (Aug. 9, 1993). EPA observed that the data it put in the underlying report to Congress did not raise concerns because:

In particular, a review of the extraction procedure (EP) test data indicated that metals are generally not found in leachate at levels above the hazardous waste toxicity characteristic
. Only three metals
-- cadmium, chromium, and arsenic
-- were detected in any ash or sludge samples above toxicity characteristic levels and then only infrequentl y. Id
. (emphasis added). E PA also gathered other leachate data during the public comment period and noted that: [t]he few EP and TCLP results provided [by c ommentors] were con sistent with the other samples collected for the purposes of the RTC and the Notice. None of the additional data supplied during the comment period exceeded the hazardous waste criteria
. Id
. at 42472 (emphasis added). Later, the Agency explained that, with regard to CCRs, exceedances of toxicity characteristic regulatory l evels “are infrequent and the average- 10
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concentrations of constituents are below characteristically toxic levels.” Id
. at 42476. “ Finally, EPA’s data show that EP (Extraction Procedure) toxicity test results for the four large volume wastes are not inconsistent with leach tests conducted using ASTM, batch/column, and TCLP methods . . . .” Id. at 42478. The information in the administrative record that post- dates EPA’s 2000 regulatory determination does not demonstrate any leachate concentration issues associated with boiler slag. Notably, EPA’s most recent study o f CCR leachate did not even evaluate boiler slag. See EPA, Characterization of Coal Combustion Resides from Electric Utilities - Leaching Characterization Data , EPA
- 600/R
- 09/151 (Dec. 2009) at 13. While EPA’s latest CCR risk assessment document purported to address boiler slag, it did not include or otherwise evaluate any b oiler slag specific data. Rather, it examined landfill leachate samples and surface impoundment pore water samples for sites described as containing “bottom ash and slag” without explaining the meaning of that characterization. Accordingly, it is unclear whether boiler slag was even present at any of the identified sites. Furthermore, the use of this combined classification term failed to indicate the percentage of boiler slag, if any, in a particular disposal unit. See [2010 EPA Draft Risk Assessment-- GET PROPER CITE] at 2
- 3, Table 2
- 1. EPA’s approach of lumping boiler slag in a “bottom ash and slag” category without ensuring that the reported data actually were representative of boiler slag, is especially troubling given the results of a 2006 Department of Energy ( “DOE”) survey

o f 4 2 CCR waste management units. That DOE report made two critical findings: (i) boiler slag accounted for only a bout two percent of all CCR generated in the U.S.; and (ii) boiler slag accounted for less than one percent of the materials disposed of in those 42 CCR waste -management units. D OE, Coal Combustion Waste Management at Landfills and Surface Impoundments, 1994
-2004 (Aug. 2006) at 4 and 25. EPA’s “lumping” approach in this rulemaking fails to account for the very- 11
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small amount of boiler slag generated in this country, the very high percentage of boiler slag reuse, the extremely small amount of boiler slag that ends up in landfills, the exceedingly small amount of boiler slag that might end up in a surface impoundment, and boiler slag’s virtually complete resistance to le aching. Without reliable boiler
- slag
- specific information in the record, EPA has no lawful basis to assume that: (i) boiler slag is present in most waste units; (ii) the waste disposal units that do contain boiler slag could contain potentially s ignific ant concentrations or amounts of boiler slag;
or (iii) the reported waste unit leachate data represented any effects from boiler slag. Accordingly, EPA has no reasonable factual basis for concluding that the limited and misleading information in the “bottom ash and slag” category p rovides accurate information about boiler slag and its behavior in waste disposal units. EPA's approach of making assumptions about boiler slag that contradict the actual boiler slag data is not sufficient to justify the propose d rule. 2. TCLP test data for Harsco ’ s raw materials show no RCRA concerns associated with boiler slag. Based on the TCLP test results Harsco has obtained for boiler slag it acquires from 34 different sources, Harsco has not identified any boiler slag materials that have “failed” the TCLP test due to elevated concentrations of metals in the leachate. [ADD CITATIONS.] TCLP tests were performed on representative samples from these 34 sources between October of 2003 and April of 2010. As shown in the following table, none of the 34 TCLP analyses yi elded leachates that contained concentrations of metals in excess of the RCRA regulatory levels. TCLP - MG/L Harsco Minerals Boiler Slag Source Number Date 5.0* Silver 5.0* Arsenic 100*

Barium 1.0*

Cadmium 5.0*

Ch romium 0.2*

Mercury 5.0*

Lead 1.0* Selenium 1 Oct
- 03 0.04 ND ND ND ND ND ND ND 2 May
- 09 0.04 <.08 0.39 <.08 <.2 <.006 0.22 <.08 3 May
- 09 0.04 <.08 0.1 <.08 <.2 <.006 <.08 <.08 4 Jun
- 09 0.04 <.08 0.08 <.08 <.2 <.006 <.08 <.08 5 Sep
- 05 0.04 ND 2.23 ND ND ND ND ND- 12
- TCLP - MG/L Harsco Minerals Boiler Slag Source Number Date 5.0* Silver 5.0* Arsenic 100*

Barium 1.0*

Cadmium 5.0*

Ch romium 0.2*

Mercury 5.0*

Lead 1.0* Selenium 6 Sep
- 05 0.04 ND 1.46 ND ND ND ND ND 7 Jul
- 09 0.04 <.08 0.11 <.08 <.2 <.006 0.11 <.08 8 Jul
- 06 0.04 <.08 0.23 <.08 <.2 <.006 <.08 <.08 9 Jul
- 09 0.04 <.08 0.77 <.08 <.2 <.006 <.08 <.08 10 Sep
- 06 0.18 <.08 0.09 <.08 <.2 <.006 0.21 <.08 11 Nov
- 06 0.04 <. 08 0.09 <.08 <.2 <.006 <.08 <.08 12 Nov
- 06 0.04 <.08 <.08 <.08 <.2 <.006 0.53 <.08 13 Jan
- 07 0.04 <.08 0.08 <.08 <.2 <.006 0.16 <.08 14 Aug
- 07 0.04 <.08 <.08 <.08 <.2 <.006 0.48 <.08 15 Jan
- 08 0.04 <.08 0.25 <.08 <.2 <.006 0.1 <.08 16 Jan
- 08 0.04 <.08 0.86 <.08 <.2 <.006 <.08 <.08 17 Jan
- 08 0.04 <.08 1.16 <.08 <.2 <.006 0.12 <.08 18 Aug
- 08 0.04 <.08 0.24 <.08 <.2 <.006 <.08 <.08 19 Oct
- 08 0.04 <.08 <.08 <.08 <.2 <.006 0.3 <.08 20 Oct
- 08 0.04 <.08 <.08 <.08 <.2 <.006 0.56 <.08 21 Apr
- 10 0.04 <.08 <.08 <.2 <.2 <.006 <. 08 <.08 22 Nov
- 08 0.04 <.08 0.12 <.08 <.2 <.006 0.18 <.08 23 Nov
- 08 0.04 <.08 <.08 <.08 <.2 <.006 0.1 <.08 24 Jan
- 09 0.02 <.04 0.55 <.04 <.1 <.003 <.04 <.04 25 Jan
- 09 <.08 <.08 0.9 <.08 <.2 <.006 <.08 <.08 26 Jan
- 09 <.08 <.08 0.42 <.08 <.2 <.006 <.08 <.08 27 Feb
- 09 0.04 <.08 0.34 <.08 <.2 <.006 0.1 <.08 28 Feb
- 09 0.04 <.08 0.13 <.08 <.2 <.006 <.08 <.08 29 Mar
- 09 0.04 <.08 0.47 <.08 <.2 <.006 0.84 <.08 30 Jun
- 09 0.04 <.08 0.3 <.08 <.2 <.006 0.18 <.08 31 Mar
- 09 0.04 <.08 0.21 <.08 <.2 0.025 <.08 <.08 32 Mar
- 09 0. 04 <.08 <.08 <.08 <.2 <.006 0.19 <.08 33 Apr
- 09 0.04 <.08 0.2 <.08 <.2 <.006 0.17 <.08 34 Apr
- 09 0.04 <.08 0.97 <.08 <.2 <.006 <.08 <.08 * RCRA regulatory levels. These TCLP test results confirm that boiler slag should not be regulated under Subtitle C.

3. The most recent TCLP tests on Harsco ’ s products demonstrate that boiler slag produces no leachate concentrations of concern. Harsco’s most recent TCLP data confirm that boiler slag is not hazardous for purposes of RCRA. In January

o f 2010, Harsco sent six samples of its Black Beauty®Abrasive to- 13
-

Analy tical Laboratory

S ervices, Inc. (“AL S”) 2 for analys is in accordance with the TCLP test method requirements. Three of the samples comprised pre -blast (unused) Black Beauty® Abrasive materials of different size d grains. The other three samples comprised post
-blast (used) Black Beauty®Abrasive materials of different sized grains. H arsco specifically c ommissioned the pre -blast and post-blast TCLP analys es to determine whether the blasting process produced any changes in the boiler slag that might alter the ability o f metals to leach from the boiler slag and yield significantly

different TCLP results. All of Harsco’s January

2 010 TCLP tests confirmed that none of the resulting pre -blast and post-blast boiler slag leachate samples contained TCLP metal values above the RCRA regulatory

standards. Arsenic was detected in all six samples, but all of the arsenic concentrations (ranging from 0.011 mg/l to 0.021 mg/l) were significantly b elow the RCRA regulatory

l evel of 5.0 mg/l. 3 While barium was also detected in all six samples (at concentrations ranging from 0.081 mg/l to 0.72 mg/l), none of the samples was even 1/100 th of the relevant RCRA regulatory l evel of 100 mg/l.. 4 ALS found detectable concentrations of chromium in four of the samples (ranging from 0.0080 mg/l to 0.057 mg/l), all well below the RCRA regulatory

l evel of 5.0 mg/l. 5 Neither of the two other metals detected presented RCRA issues (silver
-- one sample at 0.0050 mg/l with a RCRA regulatory level of 5.0 mg/l; and lead
-- one sample at 0.0079 mg/l with a RCRA regulatory l evel of 5.0 mg/l). These tests further confirmed that all boiler slag, regardless of particle size or use status, is a vitrified solid that will yi eld TCLP test results consistently below the relevant RCRA regulatory levels.

2 ALS is a NELAP
- accredited and NELAC
- accredited laboratory in Middletown, PA. NELAP stands for National Environmental Laboratory Accreditation Program, and NELAC stands for National Environmental Laboratory Accreditation Conference. 3 Analytical Laboratory Services, I nc., Analytical Results for Sample Submission of August 13, 2010, completed October 21, 2010 (hereinafter “ALS Test Results 10/21/10”); 40 C.F.R. § 261.24. 4 ALS Test Result s 10/21/10; 40 C.F.R. § 261.24. 5 ALS Test Results 10/21/10; 40 C.F.R. § 261.24.- 14
-

E. EP

A’ s Alternate Leachate Te sting Results Do Not Justify Regulating Boiler Slag Under

Subtitle C 1. Impropriety of alternate leachate test method. In the NPRCM, EPA improperly alternatively attempts to justify the proposal to regulate boiler slag and all other CCRs under RCRA Subtitle C based on the results of certain non- TCLP leachate testing. This alternate leachate testing employed the method explained in Kosson, D.S.,
van der Sloot, H.A., Sanchez, F. and Garrabant s, A.C., An Integrated Framework for Evaluating Leaching in Waste Management and Utilization of Secondary Materials , 19(3) ENVTL . ENGINEERING S CI . 159 (2002) (hereinafter “the Vanderbilt method”). This effort fails for two critical reasons. First, the Agency

should not make RCRA waste - classification decisions based on the use of a leachate testing method that is still in the method validation stage and that EPA has not yet included in SW
- 846 as a valid regulatory tool after notice
- and
- comment rulemaking. See EPA Guidance For Methods Development And Methods Validations For The RCRA Program at 28
- 29 (outlining procedures for validating test methods and adding them to SW
- 846). EPA expressly indicated that the Vanderbilt method “is currently under review for development of interlaboratory

validation studies to develop precision and bias information.” EPA Dec. 2009 at 34. Given the potential for substantial adverse effects on property, environmental, and other interests, the regulated community and the publ ic should be afforded an opportunity to evaluate and comment on the appropriateness, utility, and reliability o f the Vanderbilt method before it is used for RCRA classification purposes. Absent compliance with the review and approval process called for b y EPA’s own procedures (see EPA Guidance For Methods Development And Methods Validations For The RCRA Program at 28
- 29), the Agency lacks a rational basis for using results from an unapproved- 15
-

leachate test-method in this or any other RCRA rulemaking. EPA’ s attempt to use results obtained with a test method that has not been validated and formally added to SW
- 846 to override results based on the only e stablished RCRA leachate testing method is an arbitrary and capricious approach to reclassifying boiler slag and other CCRs under RCRA and, therefore, contrary to law. 2. No evidence in this administrative record. Second, even if EPA had a sound basis for rel ying on leachate testing results derived from an unapproved method, the Vanderbilt method test results cite d in the docket are not relevant to, and cannot support, the reclassification of boiler slag under RCRA. An examination of the administrative record shows that none of the reported Vanderbilt method leachate test results were obtained from analyses of boi ler slag samples. 6 In stead, the Vanderbilt method leachate data in the administrative record only involved testing of CCRs other than boiler slag. 7 In fact, the record indicates that those data were obtained almost exclusively f rom leachate tests on coal ash. 8 EPA’s use of leachate test data for coal ash and other non-boiler slag CCRs derived from the Vanderbilt method as justification for subjecting boiler slag to Subtitle C regulations is arbitrary

and capricious. 3. Harsco ’ s own testing of boiler slag under the Vanderbilt method shows there is no basis for subjecting boiler slag to a Subtitle C rule. Despite our view that the TCLP test is the only l eachate test that is valid for use in this proposed RCRA
- classification action, Harsco arranged for Analy tical Laboratory

S ervices, Inc. (“ALS”) to test boiler slag using the Vanderbilt method. The laboratory anal yz ed a representative sample of boiler slag that Harsco had crushed and processed into “fine” sized

6 D. Kosson, F. Sanchez, P. Kariher, L.H. Turner, R. Delapp, P. Seignette, Characterization of Coal Combustion Residues from Electric Utilities

- Leaching and Characterization Data , EPA
- 600/R
- 09/151 (2009) (hereinafter “EPA CCR Leaching Data”). 7 EPA CCR Leaching Data. 8 EPA CCR Leaching Data.- 16
-

granules. The analyz ed boiler slag granules were ones that had been destined for beneficial reuse in Harsco’s products as Black Beauty®Abrasives and roofing shingle materials. The data Harsco obtained from the Vanderbilt method leachate testing do not provide any justification for regulating boiler slag under Subtitle C. See ALS Test Results 10/21/10. The results confirmed what the prior TCLP tests had shown
-- boiler slag’s vitrified nature eliminates significant leachate concerns. Laboratories using the Vanderbilt method employ several different analytical testing tiers intended to predict the potential for inorganic constituents to leach from wastes and other materials under a variety o f waste -management scenarios. Accordingly, AL S carried out different boiler slag leachate tests with varying physical requirements and steps intended to account for differences among real
-world, waste -management practices that could affect leaching. ALS employed a number of the Vanderbilt method’s analy tical approaches that may overestimate a material’s leachate potential. This provided a conservative way to test boiler slag’s resistance to leaching. In accordance with the Vanderbilt method’s analy tical protocols, AL S tested the boiler slag under a range of aggressive environmental conditions that involved: (i) the addition of a strong chelating agent; (ii) a wide spectrum of pH values (2 to 12); (iii) the use of varying liquid
to - solid ratios; and (iv) the employ ment of extended release measures. B y varying the physical conditions, one would expect to increase the possibility f or constituents to leach from the tested substance. (See Vanderbilt method). ALS ’s results confirmed that the vitrified nature of boiler slag prevents its constituents of concern ( e.g. , arsenic) from leaching out of the boiler slag at p otentially

problematic rates under a wide variety of circumstances. 9

9 ALS Test Results 10/21/10.- 17
-

The laboratory

found, in its first tier of testing, that subjecting boiler slag to an aggressive chelating agent, EDTA (ethylenediaminetetrao
- acetic acid), did not cause metals to leach f rom the boiler slag at levels of potential concern for RCRA purposes. 10 After using EDTA, arsenic (0.031 mg/l) and barium (0.040 mg/l) were the only metals found to be present in the leachate at concentrations above their reporting detection limits. 11 This is especially s ignificant, given the strong affinity

f or EDTA to bind to metallic ions and form a new molecule prone to migration from its original location. See Betty Shackleford, Associate Director, Registration Division, OPPTS, WE

PA Memorandum of Janu ary 28, 2004 to Peter Caulkins Associate Director, Special Review and R egistration Division, OPPTS, USEPA, Re: T olerance Reassessment Decisions Completed by the Lower Toxicity Pesticide Chemical Focus Group; Claudia Oviedo and Jaime Rodriquez, EDTA: The Chelating Agent Under Environmental Scrutiny, 26 Quim. Nova 901
- 03 (2003). The minute concentrations of arsenic and barium that the chelating agent caused to be extracted from the boiler slag were extremely l ow from a RCRA perspective. The arsenic and b arium levels were orders of magnitude below the regulatory l evels EPA uses under the TCLP test to characterize a solid waste as hazardous. In the case of arsenic, the leachate concentration
was 0.031 mg/l, well below the TCLP standard of 5.0 mg/l. 12 As fo r barium, it had a detected leachate value of 0.040 mg/l, a mere 1/2500 th of its TCLP standard of 100 mg/l. 13 No other metals were present in detectable concentrations. Therefore, under the Vanderbilt method’s Tier 1 screening step, boiler slag does not present any s ignificant leachate issues.

10 ALS Test Results 10/21/10. 11 ALS Test Results 10/21/10. 12 ALS Test Results 10/31/10; 40 C.F.R. § 261.24
. 13 ALS Test Results 10/21/10; 40 C.F.R. § 261.24.- 18
-

In the second tier of Vanderbilt method testing, ALS measured the solubility and release of the boiler slag’s inorganic constituents in leachates obtained at a range of pH values (pH of 2 to pH of 12), none of the extracted materials contained potentially s ignificant concentrations of the relevant metals. 14 As was the case with the first tier of testing using EDTA, most metals were not found above the laboratory ’s reporting detection limits. 15 Metals detected in the se cond testing tier were present only at concentrations well below the values EPA uses to characterize a waste as hazardous pursuant to the TCLP test. 16 The TCLP value for arsenic is 5 mg/l, but the reported concentrations only ranged from 0.0097 mg/l to 0.0 31 mg/l. 17 For barium, AL S reported values of 0.019 mg/l to 1.3 mg/l, far below the TCLP standard of 100 mg/l. 18 Cadmium was detected in only one of the 11 different pH
- adjusted tests, and its concentration was a mere 0.0022 mg/l. 19 The TCLP standard for c admium is 1 mg/l. 20 40 C.F.R. § 261.24. While chromium’s TCLP regulatory l evel for hazardous waste status is 5 mg/l, the testing with various pH values only yielded chromium concentrations ranging from 0.0064 mg/l to 0.16 mg/l. 21 ALS found lead concentrations in the extract to range from 0.0082 mg/l to 0.06 mg/l, well below the TCLP threshold of 5 mg/l. 22 Despite the varying pH values employed in these analyses so as to maximize the tested material’s leaching potential, no potentially

s ignificant RCRA issues were presented by the levels of metals detected in each sample’s leachate.

14 ALS Test Results 10/21/10; 40 C.F.R. § 261.24. 15 ALS Test Results 10/21/10. 16 ALS Test Results 10/21/10; 40 C.F.R. § 261.24. 17 ALS Test Results 10/21/10; 40 C.F.R. § 261.24. 18 ALS Test Results 10/21/10 ; 40 C.F.R. § 261.24. 19 ALS Test Results 10/21/10. 20 40 C.F.R. § 261.24. 21 ALS Test Results 10/21/10; 40 C.F.R. § 261.24. 22 ALS Test Results 10/21/10; 40 C.F.R. § 261.24.- 19
-

In the third Vanderbilt method testing step, AL S performed a series of extractions designed to determine the effect of the liquid
-to - solid ratio on the solubility and release of metals from the boiler slag. None of the resulting leachates had any metal concentrations of significance for purposes of RCRA. 23 Most metals, including arsenic and mercury, simply w ere not detected even at very low laboratory detection levels. 24 Those metals that were detected in the leachate were onl y measured at levels that were orders of magnitude below the relevant TCLP hazardous waste thresholds. 25 Finally, in the fourth Vanderbilt method testing tier, ALS performed the mass transfer rate testing procedure to assess the rate at which contaminants of potential concern would leach from boiler slag when compacted into a granular material. 26 The testing process examined leachates obtained after AL S kept water in contact with the tested boiler slag materi al for different periods of time, ranging from one hour to eight days. 27 When it analyzed the resulting leachates, AL S did not find detectable concentrations of most of the metals. 28 Notably, the laboratory

reported no detectable concentrations of arsenic, cadmium, lead, mercury, selenium,
or silver in any

o f those leachates. 29 While there were some detectable amounts of barium and chromium, none of the reported barium and chromium values came close to their respective TCLP thresholds for RCRA hazardous waste status. 30 F. The Need Fo r Improved Physical Safeguards At CCR Wa ste- Management Units Does Not Justify Subtitle C Regulation

23 ALS Test Results 10/21/10; 40 C.F.R. § 261.24. 24 ALS Test Results 10/21/10. 25 ALS T est Results 10/21/10; 40 C.F.R. § 261.24. 26 ALS Test Results 10/21/10; 27 ALS Test Results 10/21/10. 28 ALS Test Results 10/21/10. 29 ALS Test Results 10/21/10. 30 ALS Test Results 10/21/10; 40 C.F.R. § 261.24.- 20
-

The information in the docket concerning physical problems reported at some CCR waste -management units, such as the breach of surface impoundment walls, inadequate monitoring, the lack of leachate collection systems, or liner deficiencies, does not mean the CCR waste materials managed in those units should be classified as hazardous or special Subtitle C wastes. Almost any material that escapes in large quantities from a ruptured dike, regardless of its chemical composition, has the potential to create physical havoc of the sort experienced in Kingston, Tennessee. It is Harsco’s understanding that the volume and physical force of the
release, not the chemical make
-up of the containment unit’s contents, caused almost all of the problems associated with the Kingston, Tennessee incident. Physical problems at waste management units call for physical solutions, such as better containment me asures. In the case of disposal units holding CCRs, EPA can address these physical concerns without needlessly reclassifying waste CCRs as Subtitle C wastes. [Recent press on this? -- Jim to provide.] It would be unreasonable to subject waste CCRs to the demanding and costly S ubtitle C regulations simply

b ecause some CCR waste -management units have experienced structural or physical management problems. There has been no suggestion that any of the identified CCR waste -related physical issues needs to be addressed through new Subtitle C regulations. They
can be addressed through other ty pes of rules ensuring that CCR waste -management units’ operators provide appropriate physical safeguards against both one -time catastrophic or chronic releases. EPA can control the physical issues presented by C CR waste - management units and associated operating practices without reversing its prior Bevill Amendment regulatory determinations and reclassifying waste boiler slag and the other waste CCRs as Subtitle C hazardous or special wastes. Based on the actual record, EPA should respond to the incident at TVA’s CCR waste facility in Kingston, Tennessee and the other waste
-management shortcomings identified at some- 21
-

CCR disposal units by

i ssuing Subtitle D rules that set appropriate physical construction, operating, monitoring, inspection, and closure standards for CCR landfills and surface impoundments. Those Subtitle D regulations can be carefully tailored to prevent physical failures of containment structures as well as any other potentially

s ignificant releases from the waste facilities managing the discarded CCRs. The data in the administrative record show that any RCRA regulation of waste boiler slag and the other waste CCRs must be confined to a Subtitle D program that is built upon the reasonable sections of EPA’s proposed Subtitle D option. With some changes, EPA’s proposed Subtitle D option could accomplish this goal. Accordingly, we endorse [AND INCORPORATE BY REFERENCE] the comments of [USWAG? O THERS?] that suggest appropriate revisions to the Agency ’s Subtitle D proposal. I f those revisions are made, Harsco recommends adoption of these reasonable Subtitle D
-based rules as the best choice to ensure that all CCR wastes are managed appropriately. [CROSS REFEREN CE AND ENDORSE ANY RELEVANT COMMENTS FROM OTHERS.] G. The Record Does Not Contain Adequate Support Fo r Dismantling EP A’ s Existing CCR Policy EPA’s existing policy

governing the RCRA status of CCRs has engendered serious reliance interests among companies that produce, buy, use, and otherwise manage products that beneficially reuse CCRs because the policy h as enabled them to operate free of the potentially destructive stigma associated with hazardous waste status. Their reliance is most notably evidenced by the extensive sums that companies like Harsco have expended in acquiring land, building facilities, and hiring workers needed to operate businesses that beneficially reuse CCRs in compliance with the current RCRA regulatory f ramework. An entire recycling industry exists- 22
-

in this country

b ecause EPA’s existing RCRA policy exempts CCRs from Subtitle C hazardous waste status and thereb y, encourages the beneficial reuses of boiler slag and other CCRs. If EPA were to adopt the Subtitle C proposal, the new RCRA regulations could inflict serious harm on the CCR
-related businesses, not the least of which is job loss. A s discussed in
more detail below, subjecting waste CCRs to Subtitle C status would stigmatize all CCRs, even those exempted and beneficially reused . [ See INTERNAL CROSS REFERENCE.] That stigma would devastate the beneficial reuse industry
. In addition, both the initial CCR generators and those that process CCRs for beneficial reuse will be subject to additional financial burdens related to transportation, licensing, manifesting, storage, containment, and monitoring of any CCR materials that they

designate as waste for disposal. Extensive re
-permitting and retrofitting will be necessary

f or active CCR storage and disposal facilities that are used to manage wastes. Adoption of Subtitle C regulations would inflict a severe economic blow to a $200,000,000 industry that employs thousands of people and serves vital needs of other businesses and
consumers. The current RCRA policy that keeps boiler slag and the other CCRs outside the Subtitle C regulatory

s cheme has created significant and varied reliance interests. B ecause of that reliance, EPA needs to provide a highl y detailed explanation justifying any proposed policy change with regard to boiler slag. Areview of the docket materials relevant to boiler slag, however, establishes that EPA has failed to provide adequate support for its proposed change to that existing RCRA policy . Rather than provide new and relevant boiler slag data, EPA’s record cites essentially

the same boiler slag data that EPA used to support the existing policy
. Virtually none of the docket information that post
- dates EPA’s existing CCR policy even relates to boiler slag, but, in no case, could those new data rationally be us ed to justify a revision to boiler slag’s current RCRA status. The absence of useful or relevant boiler slag data is not- 23
-

surprising. M ost of the studies cited in the record either ignore boiler slag or acknowledge its very small volume and lump it in with other CCRs without any m eaningful boiler slag
- specific assessment. Because boiler slag’s status as a vitrified, encapsulating material has not changed in the intervening ye ars, there is no realistic basis for assuming that any new boiler slag data would differ from EPA’s old data that support the existing RCRA classification. In fact, all of the new boiler slag data confirm the soundness of the current hazardous waste exemption for boiler slag. The administrative record’s existing boiler slag leachate data show no RCRA concerns, and Harsco’s leachate data provided in these comments confirm the absence of RCRA issues associated with boiler slag. Furthermore, the absence in the record of any data concerning damage cases and potential damage cases in which boiler slag is involved reinforces the appropriateness of maintaining the current RCRA policy with regard to boiler slag. Without new boiler slag data, a decision to ignore the existing data supporting well
- established reliance interests and to subject w aste boiler slag to Subtitle C status would be arbitrary and capricious. II. NONE OF

T HE CCR WA STES SHOULD BE REGULA TED AS A SUBTITLE C WA STE, BUT IN NO CASE SHOULD BOILER SLAG W ASTE BE ASSIGNED THA T ST AT US A. EP

A’ s Proposal ToRegulate All Four Waste CCRs Under Subtitle C In Exactly The Same Fashion Improperly Disregards The Disparate Characteristics Of Each Wa ste CCR Before adopting a Subtitle C rule for the four CCR wastes, EPA must carefully examine each waste CCR’s properties, characteristics, and associated management practices to determine whether the data justify

regulating each ty

pe of waste CCR. While Harsco believes the data are inadequate for the proposed Subtitle C regulation of every type of waste CCR, we are focusing
our comments on the waste associ ated with the CCR we beneficially reuse -- boiler slag waste. The administrative record for this rulemaking strongl y shows that EPA has no valid basis for- 24
-

regulating boiler slag waste as a hazardous or special waste under RCRA Subtitle C. A s noted above in detail, the docket materials establish that boiler slag does not meet any of the criteria for regulation under RCRA Subtitle C. [INTERNAL CITE.] B. A Proper Comparison Of The Docket Materials T o The Listing Criteria In 40 C.F .R. § 261.1 1 Shows Boiler Slag Should Not Be Listed There is no reasonable basis for concluding that waste boiler slag poses a “substantial present or potential hazard to human health and the environment when improperly treated, stored, transported or disposed of or otherwise managed” that would justify l isting boiler slag waste under Subtitle C as a hazardous or special waste. 40 C.F.R. § 261.11(a)(3). As the record establishes: (i) boiler slag is a vitrified, glass y material; (ii) it only c ontains low concentrations of constituents of potential concern; (iii) vitrification effectively encapsulates and otherwise binds its constituents within the glass y material’s matrix; and (iv) the constituents do not leach from the boiler slag at rates or concentrations of potential concern to human health or the environment. The data in the docket also show that, while boiler slag persists in the environment, it does so in a benign form that does not permit significant concentrations of its constituents to escape from the slag and reach receptors
. There is no suggestion in the record that any discarded boiler slag has been improperly managed in a fashion that has created human health or environmental concerns. In fact, the proven damage and potential damage cases cited in the administrative record do not mention the presence of waste boiler slag. This is to be expected for two reasons. F irst, little boiler slag is actually discarded (about 200,000 tons of waste boiler slag per ye ar in the U.S.). In its recent report, DOE found that boiler slag accounted for less than one percent of the contents of the surveyed CCR waste management units. See DOE, Coal Combustion Waste Management at Landfills and Surface Impoundments, 1994
-2004 (Aug. 2006) at 25. S econd, even when- 25
-

discarded, boiler slag's vitri fied nature prevents its constituents from escaping at levels of potential significance. Given the small amount of boiler slag that is discarded, its near total absence from surface impoundments, and its physical properties there is no reasonable basis for concluding that current boiler slag waste management practices could present a potentially significant concern to human health or the environment. Existing state and foreign regulations recognize the benign nature of boiler slag, encourage its recycling, and do not subject it to hazardous waste management requirements. For example, in a Review of North Dakota Regulations, Standards, and Practices Related to the Use of Coal Combustion Products prepared for EPA’s use in formulating the present rule, researchers at the University

o f North Dakota noted that “[b]oiler slag meets the definition of an inert material as defined by

the North Dakota Solid Waste Management Rules.” 31 Inother words, agencies that have closely examined boiler slag as distinct from other coal combustion residuals realize that boiler slag’s vitrified character prevents it from releasing toxic or otherwise harmful constituents into the environment. North Dakota recognizes boiler slag’s status as a valuable commodity, and does not subject the substance to hazardous waste requirements. 32 Because the boiler slag data in the administrative record fail to satisfy the RCRA listing rule’s standards, EPA has no reasonable basis for concluding that boiler slag waste meets the 40 C.F.R. § 261.11 listing criteria. This failure to satisfy the legal prerequisites for assigning a waste Subtitle C status shows that EPA has failed to meet its burden with regard to changing boiler slag’s RCRA status.

31 Tera D. Buckley and Debra F. Pflughoeft
- Hassett , Review of North Dakota Regulations, Standards, and Practices Related to the Use of Coal Combustion Products ; 2008
- EERC
- 04
- 04 (2008). 32 Id. at 11.- 26
-

C. The Proven and Potential Damages Cases EP A Cited ToS upp ort The Proposed Rulemaking Do Not Involve Wa ste Boiler Slag The incident in Kingston, TN, as well as the other damages cases EPA and other groups cite in support of the proposed rulemaking are not reported to involve boiler slag. Those cited damage cases all involved physical management issues, rather than true “hazardous waste” risks and, therefore, do not justify S ubtitle C regulation. If, however, EPA elects to issue any S ubtitle C regulations based on these physical
-management problems, it should exempt boiler slag waste because of the lack of data linking waste boiler slag disposal practices to these physical problems. Regulating boiler slag waste under RCRA Subtitle C because of discrete waste unit incidents not involving boiler slag represents an overbroad action. S uch an approach would stigmatize and penalize, without relevant data, the innocent companies that generate, process, use, or otherwise handle boiler
- slag simply b ecause boiler slag waste is a subset of the broad CCR waste category . B oil er slag was not involved in the actual and potential damages cases, and boiler slag’s small volumes, physical properties, and management and disposal activities do not present an ongoing risk of significant future harm. See [REFER BACK TO FIRST SECTION .] Accordingly, EPA’s concerns about damages cases provide no justification for subjecting waste boiler slag to Subtitle C regulation.- 27
-

D. The Risk Assessment Summary Information EP A Uses ToS upport The Proposal Does Not Provide An Adequate Basis For Regulating Boiler

Slag The risk assessment data EPA cites are inadequate to justify any regulation of boiler slag under Subtitle C. The risk assessment purports to demonstrate that there are significant environmental health risks associated with all CCRs yet fail s to explain how, or why, the four different types of CCRs all are thought to present the same potential risks. To be valid, EPA’s risk assessment should have taken into account the significant differences that exist among the physical and chemical properties of boiler slag, fl y ash, bottom ash, and FGD sludge. Instead, the risk assessment was based largel y on generalized assumptions concerning the rate at which contaminants would leach from various discarded CCRs and move through the environment. Making an individualized assessment based on boiler slag's substance
specific facts would have produced a different risk assessment conclusion for boiler slag. There are significant differences in the rates and amounts materials leach from the different CCRs, and the risk assessment did not focus on such data for boiler slag. For example, boiler slag’s leachate ty

pically has arsenic levels that are orders of magnitude below the arsenic levels ty pically found in fly

ash leachate (0.002 mg/Lv ersus 0.066 mg/L) derived using conventional TCLP procedures. [CITE.] The vitrified structure of boiler slag explains this factual difference. Regardless of the initial concentrations of component metals within the boiler slag, those components would not be released into the environment at significant levels under any c ircumstances of beneficial use; this is confirmed by H arsco’s TCLP analys is of raw materials, processed ready
- for
-market materials, and post
-use materials. [INTERNAL CROSS REFERENCE.] The risk assessment des cribes the pH of CCRs as “moderate to high,” but boiler slag’s pH is near neutral (6 to 7). [ADD CITATIONS FOR PH VALUES.]- 28
-

Any regulation of boiler slag waste must account for boiler slag’s distinct properties that render it and its constituents general ly immobile and environmentally b enign. It is inappropriate to group waste boiler slag with all other substances characterized as waste CCRs based on simple nomenclature rather than on critical distinctions among the various CCRs’ well
- established physical and chemical properties. [EXPAND IFS TEVE IDENTIFIES ANY ADDITIONAL PROBLEMS WITH THE DATA IN THE RISK ASSESSMENT DOCUMENT.] E. EP

A’ s Prior

Regulatory Determinations And Bevill Amendment Fi ndings Remain V

alid For Boiler Slag The May 2 2, 2000 EPA Regulatory Determination confirming boiler slag’s exemption under the Bevill Amendment correctly concluded that “the Subtitle D approach here should be fully e ffective in protecting human health and the environment.” 6 5 Fed. Reg. 32,233 (May 2 2, 2000). That conclus ion affirmed EPA’s previous 1993 Bevill Amendment determination, which also found that there was no basis for regulating boiler slag under RCRA Subtitle C. The boiler slag data that were available to EPA during its prior regulatory determinations and Bevill Amendment findings are the same as those currently in the current record. B ased on those data, EPA correctly treated boiler slag as a RCRA Subtitle D non-hazardous waste every time it visited the issue in the past. There have been no changes in the data that supported and continue to support the previous regulatory determinations, nor have any new contradictory data or any emergent damages cases that involve boiler slag been presented. Therefore, boiler slag should retain its exempt status. Notably, the leachate data cited in the 1998 Report to Congress remain valid, insofar as they deem boiler slag to be a non-hazardous waste. Even using updated leachate test methods that EPA deems more precise ( e.g. , the Vanderbilt method), all of the- 29
-

leachate testing results for boiler slag indicate that it is not toxic, and, therefore, should remain a Subtitle D non
-hazardous waste. The Bevill Amendment exists for the worthy purpose of encouraging beneficial reuse of certain designated CCR substances. T o change boiler slag’s RCRA status because of EPA’s flawed anal ys is of data and damages cases totally unrelated to boiler slag would punish slag producers and slag users by al ack of precision, rather than on any solid justification. EPA was correct in both of its previous analyses of this issue in 1993 and 2000 [1983 also?] , and there is
no legally acceptable reason, either technical or policy
-based, to change boiler slag’s RCRA status at this point. T o categorize waste boiler slag as a RCRA Subtitle C hazardou s or special waste would be a gross and unjustified overstep that ignores EPA’s previous examinations of the only relevant data in the record and fails to recognize the absence of any n ew boiler slag data contradicting the earlier determinations. F. A Single Subtitle D Regulation For All Wa ste CCRs Could Be A Reasonable Solution There is no lawful basis for classifying waste boiler slag or any of the other waste CCRs as special or hazardous wastes under Subtitle C. I f EPA rejects the Subtitle C option, all waste CCRs will necessarily remain solid wastes. While there are various differences among the four ty pes of CCRs (such as physical properties) that could justify the creation of different solid waste management requirements for each CCR waste, Harsco would not object if EPA issued a single, reasonable Subtitle D rule that applied to all of the CCR wastes. As discussed in [Section ___], a reasonable Subtitle D rule would be one that incorporates the comments and suggestions of [USWAG, OTHERS?]- 30
-

III. IF E PA E LECTS A SUBTITLE C APPROACH, THE RULE MUST TA CITL Y EXEMPT BENEFICIALL Y REUSED BOILER SLAG FROM REGULA

TION A. Beneficially Reused Boiler S lag Must Be Expressly Exempted From Any Subtitle C Regulation Virtually all boiler slag generated in the U.S. is beneficially reused. Each ye ar, the nation’s entire boiler
- slag output is approximately 2 .2 million tons, and about 2.0 million of those tons are reused beneficially. See American Coal Ash Association, 2009 Coal Combustion Product (CCP) Production & Use Survey. For decades, the nation’s boiler slag has been employed in a variety

o f uses, including roofing shingle components, blasting abrasives, glass
making materials, and road
-traction materials. These long
- standing recycling practices present no significant risks to human health or the environment. The vitrified nature of boiler slag and its inherent resistance to leaching eliminate risks that toxic components could be released from the beneficially reused boiler slag in potentially harmful concentrations. No data in the record support a contrary view. [see above at ____.] [MORE?] Accordingly, any final RCRA rule governing CCR wastes should include specific language confirming that all boiler slag
-based products and boiler slag uses fall within the definition of “beneficial reuse” and are therefore exempt from any S ubtitle C regulation. This exemption should extend to all established beneficial uses of boiler slag (such as its use in abrasives, roofing shingles, road traction materials, wastewater filtration system components, glass
-making ingredients, structural fill, embankments, soil modification, soil stabilization, mining applications, aggregate, asphalt production mineral filler constituents, asphalt sealcoating, fish tank gravel, decorative additive for ceramic products, fertilizer extender, or decorative additive for cement) and any other beneficial uses of boiler slag that could be identified or developed in the future.- 31
-

B. The Rule Must Define All Boiler Slag Products As T

otally “ Encapsulated ” To the extent that EPA adopts a Subtitle C rule that limits the meaning of “beneficial reuse” to CCR
-based products and/or activities involving “totally encapsulated” CCRs, the rule must affirmativel y state that all boiler slag is a “totally encapsulated” CCR. A vitrifi ed material, by definition, encapsulates its individual components, including any toxic constituents. See EPA Vitrification Technologies. For a material to be considered vitrified, it must reach the point of becoming an impermeable, impervious mass. 33 Vitrification seals in and encapsulates the components of a substance so well that it is a widely accepted means of treating nuclear waste. 34 , 35 Boiler slag’s vitreous nature also means that under any reasonably anticipated conditions associated with benefici al reuse, its toxic components would not be released from the boiler slag’s encapsulating structure at concentrations of potential concern. C. Any Beneficial Reuse Exemption Must Encompass All Steps In The Beneficially Reused Product ’ s Life Cycle Because all boiler slag is vitrified and generally inert, any Subtitle C regulation that exempts beneficially reused CCRs, must exempt boiler slag at all stages of the beneficial reuse life cycle. The leachate test results and other technical data cited above demonstrate that boiler slag will not release toxic contaminants at concentrations of potential concern to human health or the environment under any reasonably anticipated conditions of use, storage, disposal, transportation, or other management. Because boiler slag’s inherent properties do not change when it is discarded, any b oiler slag originally destined for beneficial reuse and subsequently discarded should be exempted from any a utomatic listing as a Subtitle C waste. S imilarly, any finished product that incorporates 33 Gauthier, Michelle M., ENGINEERED MATERIALS HANDBOOK 69 (ASM I nternational, 1995). 34 http://www.japannuclear.com/nuclearpower/waste 35 Adrienne C. Brooks, A Glass Melange: New Options for Hazardous Waste?
- Vitrification of Toxic Wastes , Science News (Jan. 21, 1995), http://findarticles.com/p/articles/mi_m1200/is_n3_v147/ai_16595905/?tag=content;col1- 32
-

boiler slag should be exempted from automatic listing under Subtitle C when that product reaches the end of its useful life or is otherwise designated for disposal. B oiler slag’s long history o f favorable leachate testing results, as well as the updated test data included in these comments, supports this conclusion. U sing RCRA’s characteristic waste rules to assess any waste boiler
- slag based products found in the beneficial reuse chain will provide appropriate safeguards for both human health and the environment. IV. COMP

ANIES INVOL

VED WITH BENEFICIALL Y REUSED CCRS ARE UNF AIRL Y EXPOSED TO LITIGA TION A. Lawsuits Will Come From A Va riety Of Sources Any business that produces, uses, or is otherwise involved with products that beneficially
reuse CCRs faces the very real risk of litigation exposure if EPA regulates any waste CCRS as Subtitle C special or hazardous wastes. In our litigation
-happ y society, a regulatory classification that raises concerns about the potentially h azardous nature of a product or its ingredients serves as fodder for lawsuits. Entities involved with CCRs are becoming concerned that a Subtitle C rule governing CCRs or CCR wastes will bring new lawsuits. One utility that produces and markets CCRs to the beneficial reuse industry recently purchased substantial liability insurance to protect against potential CCR
-related litigation in the wake of EPA’s proposal to issue a Subtitle C RCRA rule for CCR wastes. The same utility also asked for indemnification from its CCR customers even if the CCR they

purchase falls within EPA’s currently proposed “beneficial use” exemption from any S ubtitle C regulation. 36 The utility e stimates that a decision to regulate waste CCRs as a “special” or “hazardous” waste would triple the utility ’s insurance costs. 37 Such anticipated

36 Asso ciated Press, Power Plants, Residents Weigh in on Coal Ash Plan , Bismarck Tribune, September 3, 2010, at B1. 37 Id.- 33
-

costs are not unique to that particular utility ; every c ompany that produces or uses CCRs, even CCRs expected to fall under the Agency ’s proposed “beneficial use” exemption, will face increased costs to insure against and defend lawsuits arising from the categorization and regulation of waste CCRs under RCRA Subtitle C. If EPA selects the Subtitle C option, litigation exposure for the CCR beneficial reuse industry will come from multiple sources. Lawsuits will come from customers who purchased products made from beneficially reused CCRs and from people who come into contact with products that incorporate beneficially reused CCRs. Individual citizens or advocacy groups will bring lawsuits arising from human exposure to reused CC Rs that are chemically and physicall y identical to the waste CCRs EPA would regulate as "hazardous." C ommercial customers of CCR
-based product manufacturers will bring lawsuits for breaches of warranties, common law torts, or similar claims because the products contain the same hazardous constituents as the reclassified CCR wastes. The categorization of a CCR waste as a RCRA Subtitle C special or hazardous waste will create consternation among members of the business community who purchase and use products incorporating CCRs that are no different from the CCRs found in the Subtitle C waste. Currently, such businesses have made purchasing decisions and may h ave entered into formal contractual relationships based on the status of CCRs as Subtitle D non
-hazardous wastes. Those customers will bring lawsuits for any losses they attribute to a new RCRA Subtitle C classification rule affecting CCRs. Multiple United States industries ( e.g. , roofers, metal fabricators, painters, construction contractors, etc.) are involved with products dependent on beneficial reuse of CCRs. Upending
or altering existing contracts to reallocate risks or disrupting supplies of well
- established and safe CCR
-based products will have a major immediate economic impact throughout those- 34
-

industries. It also will lead to litigation over contracts written with the (warranted) assumption that the CCR
-based products at issue are safe and will not incur increased disposal costs or product
- liability

concerns. B. Harsco Already Feels The Effects Of These Increased Liability Concerns Harsco has had direct experience with these lawsuit concerns. Two of our boiler slag suppliers are reevaluating their willingness to continue to sell us CCRs, including boiler slag, for beneficial reuse and incorporation in CCR
-based products. [HARSCO ALSO HAS REASON TO BELIEVE THAT SOME OF OUR CUSTOMERS WANT TO ALTER THE LIABILITY AND INDEMNIFICATION PORTIONS OF THE CONTRACTUAL AGREEMENTS THAT GOVERN OUR WORKING RELATIONSHIPS.] [VERIFY] C. Given Past Experiences With Environmental Claims, The Threat Of Liability Is Real 1. Superfund and equivalent laws Companies in the CCR
-reuse industries rightl y fear being subjected to retroactive liability if waste CCRs are regulated under Subtitle C. Environmental laws and regulations in this country have been used to impose retroactive liability on numerous parties under a variety of legal theories and circumstances. See, e.g., 42 U.S.C. §§ 9601, et seq. Any c ompany that previously

discarded CCRs might face liability b ecause those past disposal activities did not meet newly enacted Subtitle C rules.

2. Tort suits A new rule classifying waste boiler slag as a hazardous or special Subtitle C will set up a platform for suing anyone in the boiler slag industry . Today, lawyers frequently cite government regulations as standards of care. If waste CCRs are classified as Subtitle C hazardous waste equivalents in the disposal scenario, Harsco expects lawyers to assert that any c ompany handling- 35
-

or using CCRs would have to meet the most stringent CCR regulations, i.e ., the Subtitle C rules, to avoid being deemed negligent. P laintiffs will also argue that the beneficial reuse industry should have stopped using and marketing products that qualify as Subtitle C wastes (when discarded) because the pro duct purchasers and users would be exposed to the exact same materials EPA has classified as “hazardous” when they are discarded. S uch an argument based on a link to Subtitle C status may even lead to imposition of strict or per se product liability
. V. RECLASSIFYING W ASTE CCRS UNDER SUBTITLE C WILL S UBJECT ALL CCRS TO AN UNJUSTIFIED AND PUNITIVE STIGMA A. Harsco Already Feels The Negative Effects Of The Stigma EPA’s proposal to regulate boiler slag and other CCRs destined for disposal as RCRA, Subtitle C “spec ial wastes” has stigmatized and is already producing adverse effects on Harsco’s existing blasting
- grit business, a business that is based on the beneficial reuse of boiler slag. Harsco faces aggressive competition for abrasives business around the country as it tries to sell its boiler slag
-based blasting grit
-- Black Beauty®. Much of this competition comes from companies that sell blasting abrasives derived from materials other than boiler slag. Among these alternative blasting materials are crystalline silica abrasives and recycled glass abrasives. Some of Harsco’s competitors have started an environmental smear campaign against boiler slag, to gain market share. These campaigns have already begun. All of these efforts by aggressive competitors employ EPA’s proposed reclassification of discarded boiler slag under Subtitle C as a major weapon to stigmatize and harm the market for Harsco’s Black Beauty®and other products that beneficially reuse boiler slag. This extensive stigmatization is describe d below. One of Harsco’s competitors in the blasting
- grit business, Novetas Solutions, has mounted an aggressive negative advertising campaign against Black Beauty® and other boiler
-- 36
-

slag abrasives. Novetas Solutions manufactures the recycled
- gl ass -based a brasive, New Age® Blast Media. Their attack campaign openl y uses EPA’s proposal to subject boiler slag to RCRA Subtitle C requirements to scare customers away from Black Beauty®and other abrasives that beneficially reuse boiler slag. Apress release Novetas Solutions issued early in their smear campaign claimed that boiler slag abrasives contain contaminants associated with cancer and other serious adverse health effects. See Attachment 1. That Novetas Solutions press release prematurely suggested that boiler slag abrasives may not qualify

a s one of the totally encapsulated, beneficially reused products that would be exempted from Subtitle C regulation under EPA’s proposal. See Attachment 1. Novetas Solutions followed up on its initial negative press release by placing an attack ad in the October 2009 issue of the Journal of Protective Coatings & Linings ( “JPCL”)
. S ee Attachment 2. That attack ad used EPA’s special or hazardous waste classification proposal to scare customers away from purchasing and using boiler slag blasting materials. See Attachment 2. The October 2009 print advertisement says that the U.S. Government does not seem so sure that it is safe to blast with coal slag abrasives. See Attachment 2. In its effort to show the existence of safety concerns allegedly associated with boiler slag, the attack ad references EPA’s proposal to impose new regulations on coal wastes and some coal waste -based products. See Attachment 2. The print advertisement tells customers they should not take a chance on buying boiler
- slag blasting grit when the U.S. Government has raised concerns about products derived from coal wastes. See Attachment 2. The attack ad uses this proposed rule’s Subtitle C option to stigmatize any boiler slag abrasive as an environmental hazard. Novetas Solutions’ efforts to use EPA’s proposed rule to raise environmental concerns about and stigmatize Harsco’s Black Beauty®abrasives and other boiler
- slag
-based abrasives
are not limited to the printed media. Novetas Solutions c onducted a multiple
- email campaign- 37
-

addressed to abrasives users that most recently provides a link to http://www.chooseyourabrasivewisel y.com, a website that highlights EPA’s proposed regulation of coal combustion residuals and attempts to raise environmental fears about boiler slag. See Attachment 3. The linked website notes that EPA is considering removing the existing hazardous waste classification exemptions for users of “unencapsulated” CCRs and implies that boiler slag abrasives would fall in this “unencapsulated” category . In addition, the website contains the following false and inflammatory statement about boiler slag: The EPA already has a significant body of studies that clearly show coal slag has major health and environmental issues when used for Grit Blasting ! In fact it is the Federal Government that did the studies. Attachment 3 (emphasis added). The advertising campaign to use the Subtitle C proposal to stigmatize boiler slag
-based products continues unabated. In February and April of 2010, Novetas Solutions placed more attack ads against boiler slag in the Journal of Protective Coatings & Linings
. They p laced an advertisement suggesting that EPA will label and/or regulate boiler slag, including boiler
- slag
based blasting grit, as hazardous. The ads demonstrate this competitor’s commitment to continue to use EPA’s proposed RCRA Subtitle C regulations as a way o f raising environmental
concerns and associated fears about boiler slag and inflicting economic harm on Harsco and others in the business of beneficially reusing boiler slag. See Attachments 4 and 5. New Age’s ads refer to various EPA actions to raise fears about boiler slag. Notably, they c ite EPA’s suspension of the C 2 P 2 (Coal Combustion Products Partnership) program as suggesting EPA’s stigmatization of boiler slag. Further, in the September 2010 issue of JPCL , a New Age advertisement incorrectly stated that “the EPA suspended these products from the beneficial use program.” The advertisement also incorrectly asserted “the EPA refused to- 38
-

endorse slag abrasives in the new CCR proposed rule.” B oth of these statements were based on EPA’s proposal and were obvious attempts to stigmatize boiler slag and hurt its market share. The advertisement falsely implies that EPA’s propos ed rule has stigmatized boiler slag and, therefore, the Agency

w ants to distance itself from the supposed “hazardous” nature of boiler slag and other CCRs. Precision Recycling Industries of Virginia, a supplier of crushed glass for blasting use, has joined the effort to stigmatize boiler slag unfairly as a way of increasing market share for this competing abrasives product. In a press interview reported in the July 2 1, 2010 issue of the Richmond Times
- Dispatch, this company’s owner falsely stated that coal slag abrasive “poses substantial environmental problems.” See Attachment 6. In an earlier report, that same supplier of crushed glass blasting abrasive tried to attach an environmental stigma on boiler slag when he touted his crushed
- glass product as “a replacement for coal slag, a by product of coal production, which contains arsenic, lead and other toxic metals.” See Attachment 7. This scare tactic appeared to be based on the proposed Subtitle C rule. A s such, it emphasized the presence of metals in boiler slag without noting that the metals are only present at very

l ow initial concentrations and the metals do not present any risk of significant adverse because this vitrified boiler slag binds the metals so they do not leach at levels of concern. Comp etitors who sell other non- glass competing abrasives also have made aggressive
moves in their attempts to use EPA’s Subtitle C proposal as a tool to stigmatize and harm the market for Harsco’s Black Beauty®and other boiler slag blasting grit. During PACE (Painting and Coating Expo) a recent industry trade show, a Harsco competitor that sells Australian garnet as a blasting abrasive took visitors to the Harsco booth and flatly and falsely

stated that Harsco’s Black Beauty®is made from hazardous waste.- 39
-

The roofing shingle part of our business is also vulnerable to a stigma attack as shown by
a prior attack ad incident. M embers of the Asphalt Roofing Manufacturers Association previously

f aced a competitor’s “stigma” advertising campaign that was based on the competitor’s misrepresentation of a NIOSH study entitled “Health Effect of Occupational Exposure to Asphalt.” See ARMA Aug. 19, 2010 meeting slides. The competition had tried to link asphalt to cancer based on the NIOSH study
. See id. at Slide 9. If the final EPA rule subjects any boiler slag to Subtitle C regulation, the actions experienced to date show that competitors will continue to use this RCRA Subtitle C taint to further harm beneficially reused boiler slag’s position in the roofing shingle marketplace. Therefore, we have every reason to expect future Subtitle C
-based attacks on boiler slag shingles in line with the past asphalt fume attacks. In formation obtained from Harsco’s existing and potential customers indicates that these stigmatizing, environmental scare tactics have had negative effects on Harsco’s boiler slag business. H arsco has had customers throughout the country who have stopped using coal slag abrasives due to these efforts and have switched to less effective, more costly materials and, in
some cases, imported products. There has been a direct loss in Harsco’s sales due to the stigma based on concern about the potential reclassification of boiler slag. This effect has been seen in the loss of direct customers, the loss of customers served through distribution, and information from an independent marketing research firm in conjunction with a contracted regional market study
. Regardless of what EPA says to try and protect beneficial uses of CCRs, some of our competitors are likely to try and play the “stigma” card to their advantage. If EPA were to select the Subtitle C option, Novetas Solutions and Precision Recycling Industries can onl y be expected to develop even harsher and more frequent attacks based on that rule to drive cu stomers from- 40
-

boiler slag abrasives and to recycled gl ass abrasives. Other competitors are likely to continue their attacks or join the fray
. There is insufficient domestic capacity to replace coal slag in the existing north American abrasive and roofing markets requiring a combination of additional greenhouse gas generating mining operations or import of alternate materials at a higher cost. B. Beneficial Reusers Of CCRs Should Not Be Fo rc ed ToFight Claims That CCRs Are Hazardous Based On A CCR Waste Dispo sal Rule A Subtitle C rule will inevitably create a stigma for all CCRs, including those that are beneficially reused, and this will result in a competitive disadvantage for the CCR reuse industry
. Industries that sell non- CCR
-based products in competition with products derived from beneficially reused CCRs will be able to use the rule to differentiate the two ty pes of products. Our competitors will note that the CCR
-based products contain the exact same materials that EPA has listed as a Subtitle C speci al or hazardous waste when discarded, a classification that does not apply

to the non
- CCR
-based products. The boiler slag reuse industry will have a very

difficult time overcoming this stigma and the associated economic harms that will be created because the waste CCRs and the beneficially reused CCRs have identical natures. EPA claims that labeling discarded boiler slag and other waste CCRs as special or hazardous waste will not harm the CCR recycling rate because other EPA rules have encouraged recycling of hazardous wastes. Unfortunately, the examples the Agency c ited in support of this claim simply are not applicable to the reuse of boiler slag and the other CCRs. Quite simply, those other rules EPA cited did not provide competitors with a Government- sanctioned tool for product differentiation. Virtually all of EPA’s hazardous waste recycling examples focus on situations in which recycled hazardous waste materials compete with virgin versions of the same hazardous materials. Accordingly, b oth ty pe s of competing products will contain the same hazardous- 41
-

components. Under circumstances where the hazardous components in all available raw materials are the same, competitors are not in a position to make the false argument that potentially

troubling con stituent distinctions ex ist. The industries that use these other recycled hazardous materials touted by EPA will be handling the same hazardous materials regardless of which supply

s ource they

employ
-- hazardous waste recycled into a hazardous material product or a virgin hazardous material product. Other unique aspects of the recycled hazardous wastes mentioned by EPA undercut the Agency ’s expectation that similar favorable recycling patterns will be repeated for CCR recycling efforts. In many o f the cases EPA cited, the facilities that initially g enerated the hazardous waste at issue also sent the hazardous waste to the recycler and ultimately purchased the reprocessed hazardous materials produced by the recycler. Accordingly, the purchasers in these cases are also the initial waste generators and have every incentive to keep the recycling chain active. A s such, the purchasers also have no reason to be afraid of the very f amiliar hazardous materials produced from their own wastes. Many o f the hazardous waste recycling examples EPA cited in the proposal’s preamble
are irrelevant because they involve reprocessed hazardous waste materials that would enable those who use the reprocessed materials to distinguish their raw materials from a hazardous waste . This opportunity

to use the reprocessing step that changes the material as a shield would not be available to those who currently reuse unprocessed boiler slag and other CCRs directly in their products. In stark contrast, the CCR reuse industry does not change the CCRs. Instead, we will be processing and incorporating a material that is identical to the discarded “special” wastes. CCR recyclers would not have either the reclamation or reprocessing argument as a marketing tool to overcome sales resistance by p otentially nervous customers who succumb to stigma
concerns.- 42
-

Unfortunately, the industries that beneficially reuse boiler slag and other CCRs compete with non- CCR products made from distinctly different raw materials and that contain distinctly dif ferent components. Unlike the hazardous waste recycling examples EPA cited, our CCR reuse industry

c ompetes with companies that produce very different products with very different components. F or example, boiler
- slag
-based blasting grit contains minute l evels of heavy metals, yet, it competes against recycled, crushed glass abrasives, silica abrasives, and other abrasives that may

not contain the same metals. Even when the competing products contain
some of the same constituents as found in boiler slag, there will be enough differences in composition and concentration to enable competitors to highlight these differences and use them to harm us. B oiler slag reuse is already an established practice that competitors in the marketplace are actively working to supplant with other products that do not contain the coal combustion residual stigma, and adoption of a Subtitle C rule would give our competitors another major and patently unfair weapon. While operating under EPA’s current policy governing boiler slag’ s RCRA status, Harsco has been able to reassure customers that boiler slag’s constituent materials do not present potentially

s ignificant concerns for human health or the environment. W e have been able to do
so by explaining that boiler slag is vitrified and its components, therefore, leach onl y at extremely l ow levels. We then point to scientific data and the existing RCRA policy as support for our statements. A change to that policy, however, will allow our competitors to highlight the changed policy as "proof" of a concern, despite the unchanging nature of the scientific facts associated with boiler slag. M ost significantly, competitors will point to any regulatory

reclassification of waste boiler slag under Subtitle C as evidence that the U.S. Gover nment has voiced safety concerns about the supposedly hazardous nature of boiler slag, even when reused beneficially.- 43
-

The proposed change in regulatory status for waste CCRs may p resent an insurmountable obstacle to Harsco’s efforts to market to customers who may b e anxious about having any connection to materials EPA regulates as a Subtitle C special or hazardous waste. As described above, competitors already have initiated these stigmatization efforts against boiler slag. I f EPA were to adopt the Subtitle C option, we would expect other harmful marketing actions that cite that Agency decision. These could include possible efforts to further harm our sales by

l inking our product to a material regulated as hazardous or regulated as a special waste subject to hazardous waste regulations. I f there is this kind of bad publicity and negative pressure concerning boiler slag disposal activities, many c ompanies and individuals will assume, incorrectly, that potential environmental problems and regulatory restrictions exist or may soon exist with the reuse of boiler slag. Predictably, competitor’s ads will advise customers to stay c lear of any such uncertainties, and many customers who fear liability exposures may

do just that. C. Boiler

S lag Is Vu lnerable ToStigma Concerns Because Of The Nature Of Boiler Slag Users When recycled hazardous wastes are used to make products that are marketed to homeowners or are otherwise used in situations that present the potential for ongoing worker exposures in non- industrial settings, the effects of a negative stigma may b e more significant than for other products that sophisticated users purchase for activities solely within an industrial setting. This is especially true where the recycled product contains residual “hazardous”
c omponents not found in competing products, even if the consumers and workers face no significant risk of exposure to those “hazardous” components. Almost all of Harsco’s boiler
- slag
- derived products are vulnerable to these ty pes of harmful marketing effect s. Roofing shingles containing our products are often sold to- 44
-

individuals, and all of our boiler slag products and uses, such as roofing shingle, blasting grit, or road surface applications, are employed in non - industrial settings where workers and/or the general public could come into contact with the boiler slag
-based products. Given these ty pes of products and uses, beneficially reused boiler slag products would make a tempting target for a negative information campaign if EPA were to classify the exact same material as a Subtitle C special or hazardous waste when it is designated for disposal. D. A New Subtitle C Regulation W ould Set A Baseline That States Could Exceed When EPA issues regulations regarding hazardous waste, the respective environmental agencies of the states often issue additional, more restrictive rules. Arelevant example is presented by

the way s ome states regulate fertilizer derived from hazardous waste. Under 40 C.F.R. § 266.20(d), fertilizers containing hazardous waste may b e applie d to the land without being subject to RCRA Subtitle C regulation, provided that the fertilizers have met certain treatment standards for those hazardous wastes. H owever, a number of states, with Washington being the prime example, have issued regulations that place additional limits on: (i) how fertilizers containing even trace amounts of toxic chemicals may b e used, and (ii) the chemical constitutions of the fertilizers. See, e.g. , Wash. Rev. Code § 173
- 303
- 140. California and Texas
are among the other states that have issued fertilizer regulations with tighter limits than the federal regulations. See Cal. Code Regs. tit. 3, § 2302; 30 Tex. Admin. Code § 335.211. The willingness of certain states to regulate fertilizer derived from hazardous waste more strictly than EPA provides a cautionary tale for industries that beneficially reuse CCRs. If EPA were to issue a rule regulating CCR wastes under Subtitle C but exempting beneficial uses, states could choose to ignore EPA’s distinctions and subject bene ficial uses to more stringent regulations. The construction industries of those states will be deprived of their preferred- 45
-

blasting grit and roofing material, and may turn to more dangerous alternatives (for example, silica abrasives present inhalation concerns, and glass abrasives can be irritants). A recent Ohio case involving recycled spent materials in masonry b locks demonstrates how a state's refusal to permit the re -use of "hazardous" materials EPA has deemed to be safe
can have severely detrimental effects on producers of such recycled materials. In US Tech. v. Johnson , 2009 WL8 6745 (S.D. Ohio 2009), an Ohio EPA determination rendered certain masonry b locks unusable because of the trace presence of hazardous wastes, despite the fact that EPA permit s the use of the recycled spent material. B ecause of the Ohio EPA’s determination, US Technology

f inds itself unable to fulfill its contractual duties to U.S. military and unable to pursue bids on public projects. If EPA categorizes waste boiler slag as a Subtitle C hazardous waste, or even a “special waste,” some states are likely to take the unwarranted step of prohibiting the reuse of boiler slag, despite its non-toxic, vitrified composition. While RCRA always allows states to exceed federal standards (see 42 U.S.C. § 6929), an EPA decision to subject any w aste CCRs to Subtitle C status could motivate states to ignore EPA’s careful balancing and subject all CCRs, waste or not, to the same RCRA status. States and their citizens may h ave fears that EPA’s assurances and semantics cannot overcome if a reused CCR material is linked to a hazardous or special Subtitle C waste. Accordingly, some states are likely to act as they

have done with fertilizers derived from hazardous wastes. W e would expect such states to impose stricter regulation on any C CR reuse because of the CCR’s association with hazardous or special waste. In the case of boiler slag, that will have severe and undeserved repercussions. EPA should be cognizant of the reality that states will use the federal regulations as a baseline from which they c an issue even tighter restrictions on the use of coal combustion- 46
-

wastes. In the case of boiler slag, miscategorizing the substance as a Subtitle C hazardous waste,
or even a “special” waste, will result in the states issuing overly harsh restrictions on how a safe substance may

b e used. A s explained throughout these comments, there is no justification for such a step, especially in light of the likely over-reaction of the public and some state environmental agencies. E. Subjecting CCRs ToS ubtitle C Special Waste St atus Wo uld Create A Legal Barrier T

o Their Beneficial Reuse In Many States Currently, at least 15 states prohibit the beneficial use of hazardous wastes. See American Coal Ash Association Letter To Matt Hale, Director, Office of Resource Conservation and Recovery, USEPA dated March 25, 2009 (“ACAA letter of March 25, 2009”). These states are Colorado, Delaware, Florida, Georgia, Illinois, Indiana, Maryland, Michigan, Montana, North Carolina, North Dakota, Penns ylvania, Tennessee, Virginia, and Wyoming. See ACAA letter of March 25, 2009; see, e.g. , Fla. Admin. Code Ann. 62
- 702; 15 N.C. Admin. Code 13 A.0112; Tenn. Comp. R. and Regs. 1200
- 1
- 11
- 09; and 9 Va. Admin. Code § 20
- 80
- 150. If EPA were to adopt the Subtitle C option and regulate waste CCRs as hazardous, many o f those states have indicated they

would not allow the beneficial use of CCRs. See ACAA letter of March 25, 2009. H arsco believes that a Subtitle C special waste classification that applies Subtitle C hazardous waste rules to CCRs would produce the same reaction from the states. Once states begin to prohibit the beneficial uses of CCRs for one or more applications, we believe the rejections will snowball and will adversely affect the acceptability o f some or all of the remaining CCR beneficial use applications. I f a state refuses to allow one or more applications involving beneficially reused CCRs, businesses and individual consumers will be guided by the governmental act of negative labeling and will reject products derived from beneficially reused CCRs.- 47
-

F. Businesses Have Been Damaged Significantly When Customers Wro ngly Consider A Product T

o Be “ Hazardous ” Once a product has been stigmatized, wrongl y or not, because it contains components that the public has been led to believe are hazardous, that product can suffer significant and long
lasting adverse effects in the marketplace.

Stigma is a powerful force in our modern industrial society because science, technology, and communications media often interact with the idiosyncrasies of human cognition, perception, and emotion to produce extreme disruption in the lives of industries, products, communities, and people
. Howard Kunreuther & Paul Slovic, Coping with Stigma: Challenges & Opp ortunities , 10 Risk: Health, Safety & Environment 269 (Summer 1999) (emphasis added). I f EPA were to classify any b oiler slag as a Subtitle C special or hazardous waste, our industry w ould face the problem of “social amplification of risk” because “we liv e in a world in which information, acting in concert with the vagaries of human perception and cognition, has reduced our vulnerability to pandemics of disease at the cost of increasing our vulnerability to massive social and economic catastrophes.” Id
. at 269
- 70. Industries involved with chemical products are particularly vulnerable to the possibility of this ty pe of destructive stigmatization. Even in the absence of a competitor’s negative advertising campaign, Harsco and other businesses marketing boil er slag products are likely to suffer harm in the marketplace simply by virtue of the stigmatizing effects of a final EPA rule that characterizes any boiler slag waste as a hazardous waste or the Subtitle C equivalent. EPA has grossl y underestimated the public’s ty pical overreaction to the potential risks associated with hazardous wastes and the resulting efforts to avoid any potential contact with or exposures to hazardous wastes. See Risk, Media and Stigma: U

nderstanding Public Challenges to Modern Science and Technology, James Fly nn, Paul Slovic and Howard Kunreuther, eds. ( “Risk, Media and Stigma”) at 333
- 34; see also- 48
-

C. Sunstein & R. Zeckhauser, Overreaction to Fearsome Risks , RWP08
- 07 (Dec. 2008) ( “Overreaction”) at 10. Statements from EPA concerning the environmental and health facts justifyingdifferent regulations for the same boiler slag depending on its waste status or beneficial reuse status are not likely to be effective tools for reassuring the public that beneficially reused boiler slag is not as hazardous as the Subtitle C waste. In the public’s mind, all boiler slag will be tarred with the hazardous waste stigma despite any scientific evidence to the contrary . See Overreaction at 10 (noting public’s failure to accept controlled studies of Love Canal contamination showing low probability

o f harm); Risk, Media and Stigma at 338 (in response to minor benzene
contamination incident, consumer pressure forced removal of all Perrier bottles from worldwide market even though FDA concluded the health risk was nil). T o the average person, “[b]eing contaminated has an all
- or-none quality to it
-- like being alive, or being pregnant.” Risk, Media and Stigma at 338. Public reports of potentially adverse human health or environmental issues associated with a product, even when those reports are grossly exaggerated or are contradicted by c areful scientific anal ys es, can be enough to force the product from the marketplace. Two such situations are instructive. In one instance, millions of consumers stopp ed buying apples after CBS ran a story

asserting that “Alar, a pesticide used on apples, could cause cancer.” Id. at 337
- 38. Another occurred when Perrier reacted to consumer pressure and pulled all of its bottled water from shelves because some bottles were found to contain minute and harmless levels of benzene. Id
. at 337
- 38. In neither case, was a potentially s ignificant human health risk present, yet the stigmatization hurt sales, forced an unnecessary recall, and thereby

imposed serious financial harm on the affected businesses.- 49
-

The vast majority

o f people seek to avoid contact with all carcinogens and chemicals otherwise characterized as harmful. Id
. at 338. The public’s ty pical overreaction to materials labeled as or otherwise perceived to be hazardous is explained as follows:

This all
- or-none quality irrespective of the degree of exposure is evident in the observation by Erikson (1990) that, “To be exposed to radiation or other toxins is to be contaminated in some deep and lasting way, to feel dirtied, tainted, corrupted” (p.122). The effect of contagion or contamination in the public’s view is obviously very different from the scientist’s model of how contact with a chemical induces carcinogenesis or other kinds of harm
. In the scientific mo del, exposure (and the resulting risk) is viewed as a continuum, rather than as an “all or none” phenomenon. Id
. at 339 (emphasis added). Once the Subtitle C stigma of special waste or hazardous waste status is placed on waste boiler slag, all boiler slag and associated products will be likely to suffer significant economic damage, despite the efforts of EPA and the CCR reuse industry to distinguish between the waste CCR category and the beneficially

reused CCR product category
. G. Negative Stigmas Have Powe rful Effects While generators of boiler slag and other CCRs may well have a strong incentive to try and increase the beneficial uses of CCRs, rather than paying the increased disposal costs that would arise under the proposed Subtitle C option for waste CC Rs, EPA has failed to account for the power of stigma
-related market forces that will prevent or limit various CCR reuse opportunities. The ongoing attacks on available avenues for beneficial uses of CCRs combined with the public stigma of association with “hazardous” wastes will simply leave some companies with no choice but to arrange for disposal of the newly stigmatized and difficult to market CCRs. As described above, the creation of a stigma will lead to severe damage to our industry
. Members of our industry are expected to take proactive steps to reduce their anticipated litigation
concerns. Unfortunatel y, this is likely to mean a shift from beneficial reuse with its multiple- 50
-

parties and multiple avenues for liability, to disposal of CCRs because we can more easil y control potential liability exposures. In addition, our customers and the ultimate consumers of
our products are likel y to demand the readily available competing materials that simply do not present any "hazardous waste" concerns. Onc e the false stigma is created in the minds of business operators and consumers, we will have no realistic hope of overcoming the combination of irrational stigma
- driven fears, genuine liability c oncerns, and very

real market barriers that will drive our ex isting customers to abandon us in favor of these competing products that are free of such RCRA baggage. These problems are expected to arise for both CCR generators and companies that currently reuse boiler slag and other CCRs. A s noted above, those stigmatization efforts and marketing attacks are already openl y underway

with regard to boiler
- slag
-based blasting abrasive uses, and we have reason to believe similar efforts will be made with regard to the other products based on boiler slag. When combined with the potential liability f ears, the effect could easily swamp our industry
. H. EP

A Has An Obligation T

o Consider

P otential Stigma And Resulting Adverse Effects It is lawful and appropriate for EPA to consider stigma information in the context of this rulemaking. Included among the factors that the Agency is to consider in determining whether to list a solid waste as a RCRA Subtitle C hazardous waste are “such other factors as may b e appropriate.” 4 0 C.F.R. § 261.11(a)(3)(xi). In the preamble to its propo sed rule, EPA notes that the Agency

“ is concerned about potential stigma” and is seeking suggestions on how to reduce any p erceived impacts resulting from stigma due to the identification of CCRs as special wastes regulated under Subtitle C authority . 75 Fed. Reg. 35128, 35186
- 87. By EPA’s own admission, stigma is an appropriate factor for consideration in making the determination at hand.- 51
-

RCRA Section 3001(b)(3)(A)(i) (“The Bevill Amendment”) exempts coal combustion residuals from regulation as hazardous wastes until EPA conducts a study, makes a report to Congress, and issues a new rule. The Bevill Amendment dictates that RCRA Section 8002(n) controls the factors that EPA must consider in its study deciding whether or not to maintain the exemption for c oal combustion residuals. Among the eight factors for EPA to consider are “alternatives to current disposal methods,” “the impact of those alternatives on coal and other natural resources,” and “the current and potential utilization of such materials.” 4 2 U.S.C. § 6982(n). Given the Bevill Amendment’s requirements, it is consistent with RCRA’s stated goals for EPA to consider the stigmatic effect of regulating coal combustion residuals wastes as Subtitle C hazardous wastes. EPA confirmed the reach of the Bevill Amendment’s command by considering, in its 1993 Regulatory D etermination, “the potential impacts of regulating the wastes as hazardous under RCRA Subtitle C” when concluding that regulation under RCRA Subtitle C was inappropriate for coal combusti on residuals. 58 Fed. Reg. at 42470. This is not a situation like HW TC v. EPA , 861 F.2d 270 (D.C. Cir. 1988) where the court concluded that EPA could not consider stigma. That case concerned a proposal to list used oil as
a hazardous waste. The court concluded that the specific RCRA provision addressing listing of used oil directed EPA to act under 42 U.S.C. § 6921. 861 F.2d at _______. Therefore, the court said EPA could only

c onsider the specific criteria in that RCRA provision
-- “toxicity, persistence, and degradability in nature, potential for accumulation in tissue, and other related factors such as flammability, corrosiveness, and other hazardous characteristics.” 8 61 F.2d at

____. U sed oil, however, has never been the subject of an exemption under the Bevill Amendment with its special criteria for the RCRA evaluation process that allow consideration of stigma.- 52
-

There is nothing in any statute or regulation prohibiting EPA from considering stigma information when regulating CCRs. T o the contrary, as outlined above, it is consistent with the stated goals of RCRA Section 3001(b)(3)(A)(i) for EPA to consider stigma information before making a determination about boiler slag's RCRA status. It is appropriate, lawful, and in keeping with the goals of RCRA and the Bevill Amendment for EPA to take stigma information into consideration before issuing a final rule on the status of all CCRs, including boiler slag. VI. RECLASSIFYING WASTE BOILER SLAG AND OTHER WASTE CCRS AS SUBTITLE C SPECIAL OR HAZARDOUS WASTE WOULD BE ARBITRAR Y OR CAPRICIOUS A. The Boiler

Slag Data Are Inadequate ToJustify Subtitle C Regulation As explained above, the data in the record fail to provide an adequate justification for regulating waste boiler slag as a special or hazardous waste under Subtitle C. While EPA claims that CCR leachate issues are driving the proposed action, the leachate data in the record show no significant leachate issues associated with boiler slag. Notably, the only boiler slag leachate data cited in the docket are the same leachate testing data that supported the Agency ’s May 2 2, 2000 conclusion that boiler slag and the other CCRs should be regulated as Subtitle D non-hazardous wastes, and not as Subtitle C hazardous wastes. 38 As the NPRM notes, the TCLP test result s supporting EPA’s May

2 000 CCR waste characterization decision showed that all of the metals in the boiler slag leachate samples had median values that were orders of magnitude lower than the RCRA regulatory

l evels used to characterize a material as hazardous waste. 7 5 Fed. Reg. at 35139, Table 2. [ADD THE INFORMATION ABOUT THE REPORTED RANGE OF TCLP VALUES FROM 2000 AS FOUND IN THE DOCKET.] Strikingly, the more recent

38 See 75 Fed. Reg. at 35138; Regulatory Determination on Wastes from the Combustion of Fossil Fuels (May 22, 2000).- 53
-

CCR TCLP data cited in the NPRM did not include any results from boiler slag analyses . See, e.g. , 75 Fed. Reg. at 35139, Table 3. EPA has not offered or received any relevant leachate test data or other technical evidence about boiler slag that differs significantly f rom, let alone contradicts the data the Agency c ited in its 1993 and 2 000 decisions. In fact, Harsco has provided new boiler slag leachate data derived from both the TCLP test and the Vanderbilt method test that confirm the absence of leachate issues associated with boiler slag. Given the current state of scientific and te chnical knowledge about boiler slag and other CCRs and their beneficial uses, EPA’s prior 1993 and May

2000 Regulatory

D eterminations that kept beneficially reused CCRs exempt from RCRA’s hazardous waste regulations remain valid and appropriate. The avai lable data in the rulemaking record do not justify a decision to remove the existing RCRA exemption for CCRs. This is especially true of boiler slag with its vitrified physical state that renders the material and its various constituents generally immobil e and environmentally

benign. Therefore, any final EPA rule must ensure that boiler slag maintains its status as exempt from RCRA Subtitle C regulation. The APA permits a court to set aside agency action that is “arbitrary” or “capricious.” See 5 U.S.C. § 706(2)(A). T o meet the APA standard for a properly j ustified rule, the Supreme Court has insisted that an agency “ examine the relevant data and articulate a satisfactory explanation for its action.” Motor Vehicles Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co. , 463 U.S. 29, 43, 103 S. Ct. 2856 (1983). In this case, the record is devoid of boiler slag leachate data or any other boiler slag
- specific data that could support a finding that boiler slag presents a potentially substantial hazard to human health or the environment when discarded. Accordingly, a decision to regulate waste boiler slag under Subtitle C would be arbitrary and capricious.- 54
-

B. There Is No Sound Reason ToC hange The Existing CCR Policy That Created The Benefi cial Reuse Industry The scope of APA review is heightened if the agency action results in a change to an existing policy
. An agency must show that there are good reasons for a new policy
. Fed Commc’ns Comm’n v. Fox Television Stations, Inc. , 129 S. Ct. 1 800, 1811 (2009). “When an agency disregards facts that underlay a previous policy, or when a prior policy has engendered serious reliance interests, an agency must provide a more detailed justification for its decision to alter a policy

than what would suffice for a new policy created on a blank slate. It would be arbitrary and capricious to ignore such matters.” Fed Commc’ns Comm’n v. Fox Television Stations, Inc. , 129 S. Ct. 1800, 1811 (2009). The Supreme Court recently declared that, when an existing policy

has engendered serious reliance interests, an agency must provide a more detailed justification for its decision to alter that policy than would be required if the agency were creating a new policy

unrelated to that existing policy
. [CITE.] In this case, EPA has failed to provide an adequate justification for ignoring the underlying facts and altering the existing RCRA policy

governing boiler slag and the other CCRs. The proposed regulation would have an enormous adverse effect on the economic vitality of the industries that beneficially reuse coal combustion residuals in reliance on EPA’s existing CCR waste - classification policy
. H arsco and others in the CCR industry h ave relied on and made major business decisions based on the scope and longevity o f that existing EPA policy
. Whole hosts of businesses that beneficially reuse boiler slag and other CCRs have flourished in reliance on the Agency ’s existing policy
. S ince the initial EPA ruling regarding boiler slag and under the umbrella of subsequent rulings confirming the beneficial use of coal slag, Harsco has invested millions of dollars in both new construction and capital investments to improve and- 55
-

upgrade existing processing facilities and has negotiated long
-term supply c ontracts for boiler slag. Because of EPA’s current CCR
- classification policy, Harsco's Mineral Division and the
seven other U.S. companies with business models based almost entirely on the beneficial reuse of boiler slag have been able to operate successfully in this country . Adoption of a new rule reversing the existing CCR
- classification policy would impair significantly the revenues of those eight businesses, currently e stimated, on a combined basis, to be approximately $ 200 million per ye ar, and jeopardize hundreds of their employees’ jobs. In addition, there are thousands of small businesses, such as roofing contractors, painters, metal working companies, and construction operations that rel y on the availability o f boiler slag
-based products. Their workers could be neg atively impacted by

regulations restricting the availability of CCR
-based products or severel y stigmatizing such products in the marketplace. Tens of thousands of companies purchase boiler slag for beneficial reuse, and together, those companies employ over 100,000 workers. 39 All of the major asphalt roofing companies use boiler slag in their shingles due to both performance and cost benefits. C onversion to alternative materials would not reduce jobs in the roofing industry directly however the cost of asphalt shingles will increase to the new home construction and residential replacement roofing markets. In the abrasive industry the over 7,500 companies requiring abrasive blasting include shipbuilding, new construction steel, railcar maintenance, marine storage tanks, oil tank farms, municipal water tank maintenance, bridge and overpass maintenance, tractor and farm implement construction, wind turbine construction, ship building and repair, ship maintenance, barge building and maintenance, oil refinery maintenance, oil rig construction and maintenance,

39 Letter from Thomas H. Adams, Executive Director of the Coal Combustion Products Partnership, to Matt Hale, Director, Office of Resource Conservation and Recovery (March 25, 2009) (available at http://www.regulations.gov as part of th e EPA docket for the proposed rule).- 56
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pipeline construction and maintenance, and armored military vehicle construction and refurbishment. T ogether these industries represent hundreds of thousands of workers and affect every aspect of modern li fe. Since EPA issued its 2000 Regulatory Determination for CCRs, the rate at which industry has been beneficially reusing CCRs has grown significantly. See ACAA Letter of March 25, 2009. In 1999, U.S. industry b eneficially reused 30 million tons of CCRs, and by 2 008, the annual beneficial reuse total had shot to 56 million tons. Id
. That growth took place because industry relied on what appeared to be EPA’s final resolution of CCRs’ RCRA status. Id
. Industry had the confidence to recycle CCRs into us eful products without fear of being subjected to the expensive and daunting Subtitle C regulatory program or facing stigma or litigation concerns. Adopting the Subtitle C proposal, however, would destroy

that progress and would raise the very real risk that EPA could change its position regarding all CCRs. Such a scenario would shift industry investment from progressive recycling efforts to a purel y defensive CCR management scheme that controls risk by l imiting the continued circulation of reused CCRs in the marketplace. The materials in the rulemaking docket are not sufficient to support any regulation of boiler slag under Subtitle C of RCRA, even if EPA were writing on a blank slate. In this rulemaking proceeding, however, the Agency i s proposing to do more than simply i ssue a new rule; EPA’s proposed RCRA rule would make major changes to the Agency ’s current CCR policy that governs boiler slag. B ecause EPA’s rulemaking record does not contain any meaningful new boiler slag information that could possib ly justify reclassifyingwaste boiler slag
as a Subtitle C
-regulated waste, the Agency c annot meet the standard for reversing EPA’s existing RCRA policy

o f regulating waste boiler slag’s waste as non-hazardous status under RCRA.- 57
-

Under the standards found in the APA and delineated by c ourts’ interpretation of what constitutes “arbitrary

o r capricious” agency

action, the record shows that EPA has not provided sufficient justification for departure from its earlier decision to categorize coal combustion resid uals as RCRA Subtitle D non-hazardous wastes. “ It is true that an agency acts arbitrarily when it departs from its precedent without giving any good reason.” N. Cal. Power Agency v. Fed. Energy Regulatory Comm’n , 37 F.3d 1517, 1522 (D.C. Cir. 1994). An agency may b e required to “provide a reasoned analys is indicating that prior policies and standards are being deliberately changed, not casually i gnored. M oreover, if the record reveals that the agency has failed to consider an important aspect of the problem or has offered an explanation for its decision that runs counter to the evidence before [it],” [a court] must find the agency in violation of the APA. People of the State of Cal. v. Fed. Commc’ns Comm’n , 39 F.3d 919, 925 (9 th Cir. 1994). “ [T]he agency

must examine the relevant data and articulate a satisfactory explanation for its action, including a rational connection between the facts found and the choice made.” Martin Oil Service, Inc. v. Koch Ref. Co. , 582 F. Supp. 1061, 1066 (N.D. Il l. 1984). EPA has failed to meet the APA standard as explained by these court decisions. As explained in more detail in Sections [I .D. and I.E. above], there is nothing new in the record that compels EPA to depart from its previous position and categorize waste boi ler slag as a Subtitle C special or hazardous waste. T o the contrary, all the available boiler slag leachate data derived from both the TCLP method testing and the Vanderbilt method testing and the other technical materials confirm boiler slag’s benign composition and physical properties. EPA has not articulated a satisfactory explanation for making a radical departure from its existing RCRA policy and adopting its proposed Subtitle C rule for boiler slag waste and other CCR waste. Because there is no evi dence to support the categorization of waste boiler slag as presenting a substantial hazard to human health or the environment, there is no rational- 58
-

connection between the evidence in the record and the choice to categorize boiler slag as a Subtitle C spec ial or hazardous waste. A ccordingly, EPA has no basis to reverse its multiple previous decisions to treat waste boiler slag as a non-hazardous waste under RCRA Subtitle D. Therefore, a decision to change waste boiler slag’s status to that of a special or hazardous waste would run afoul of the APA’s “arbitrary or capricious” standard for reversing agency action. Other supporting material EPA has cited in the record simply have lumped boiler slag in with other CCRs even though there is no reasonable explanation for that approach. For example,
one such report that combined bottom ash and slag noted that “[s]ome selection and grouping of these ty pes was necessary

to product a consistent and simple screening analys is.” RTI , Constituent Screening for Coal Comb ustion Wastes , Oct. 2002 (prepared for EPA) at 2
- 3. Making life simpler for report writers is not a valid reason to combine boiler slag with other CCRs and arbitrarily assume they p ossess the same properties and present the same potential for creating human health and environmental concerns. CONCLUSION The data in the NPRM’s existing administrative record simply are not adequate to justify
a change in the current RCRA regulatory status of waste boiler slag. In 1993 and 2000, EPA reviewed the then
- availabl e technical and scientific information concerning all CCRs, including boiler slag, and concluded that there was no basis for classifying any of them as a Subtitle C hazardous waste. 40 EPA’s current NPRM claims that “new” data exist to support the proposed regulation of boiler slag designated for disposal under RCRA, Subtitle C. Ac areful review of the rulemaking docket, however, shows that the post- 2000 data either do not address boiler slag or, if they

do mention boiler slag, they b asically repeat the same scientific information that

40 See 40 C.F.R. § 261 (1993, 2000), 58 Fed. Reg. 42,466 (1993), and 65 Fed. Reg. 32,214 (2000).- 59
-

supported EPA’s prior decisions not to classify boiler slag as a RCRA hazardous waste. Because of its vitrified nature, boiler slag does not present leachate concerns, and it is not associated with any of the reported damage cases. The data Harsco has presented in this submission confirm that boiler slag does not present potentially significant risks to human health of the environment. The NPRM and its supporting docket materials do not and, in light of the scientific record, cannot provide a detailed and reasonable explanation for altering the Agency ’s current CCR policy
. Without satisfying that threshold, a decision to issue a new rule damaging the legions of companies that have relied on the ex isting CCR policy will run af

oul of the “arbitrary
or capricious” standard outlined in the APA. Therefore, the boiler slag data in this administrative record are not sufficient to justify a revision to EPA’s ex isting CCR policy, and waste boiler slag and the other waste CCRs should only be regulated under Subtitle D rather than Subtitle C.