Privileged & Confidential

Attorney-Client Communication

Draft 12/3/10

WDC_IMANAGE-1534447.4

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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 CONTENTS

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 Slag 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. ..................................................15
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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 Each 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................................................................31
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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. Tort 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........................................................................................................43

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..............52
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B. There Is No Sound Reason To Change The Existing CCR Policy That 

Created The Beneficial Reuse Industry ...................................................................54

CONCLUSION ............................................................................................................................58
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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 

Proposed Rulemaking concerning the “Identification and Listing of Special Wastes; Disposal of 

Coal Combustion Residuals from Electric Utilities.” 75 Fed. Reg. 35128 (June 21, 2010) (“the 

NPRM”). Boiler slag is one of the four types 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 CCRs 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 
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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. Boiler slag is, and always has 

been, a solid vitrified glassy material that encapsulates and thereby immobilizes its components 

by forming metal silicates. The available leachate testing data concerning boiler slag have been 

unchanged for years -- metals do not leach from boiler slag at potentially hazardous 

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 CCRclassification decisions to develop and serve a well-established market that beneficially reuses 

boiler slag and other CCRs. Subjecting 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 from Subtitle C special waste status. Because 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 certain types of CCR disposal practices 

would be best addressed by adopting a reasonable and appropriate Subtitle D rule focused on 
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waste unit construction, operation, and closure standards and related financial assurance 

requirements. This is what EPA concluded in its May 22, 2000 Regulatory Determination (see

65 Fed. Reg. 32213 (May 22, 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 IS VITRIFIED AND DOES NOT MERIT SUBTITLE C 

REGULATION

A. Boiler Slag And The Process By Which It Is Created Have Remained 

Unchanged For Decades

From the moment it is created, boiler slag is a vitrified, glass-like solid material that 

renders its constituents essentially inert and immobile in the environment. Boiler slag only 

comes into being when the coal ash in slag tap and cyclone type 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 type furnaces are two different types of wet-bottom furnaces that 

have been in operation in the United States since about 1942. A slag-tap furnace burns 

pulverized coal, and a cyclone furnace burns crushed coal. Neither type of these furnaces has 
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been built in the United States since the 1960s. Both types 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. Because 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 about 2.2 million tons of boiler slag is generated annually nationwide, and almost 

all of that boiler slag (about 2.0 million tons per year) is beneficially reused. Electric utilities 

with wet-bottom furnaces sell boiler slag to Harsco and other companies that beneficially reuse 

the material. Harsco annually purchases about 1 million tons of boiler slag and incorporates the 

vast majority of each year’s purchases in products that beneficially reuse boiler slag. Last year, 

for example, we used about 1.1 million tons of boiler slag in our products. Nearly 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 being 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 be stockpiled for use in subsequent years, and a small 

percentage will be discarded for failure to meet product sizing specifications. 
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B. The Vitrified Nature Of Boiler Slag 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 1992) (“EPA Vitrification Technologies”) at Chapter 2. As a 

result, boiler slag immobilizes the wide variety of inorganic constituents that are present in its 

precursor material -- molten coal ash. See id. The vitrification process immobilizes some of 

these inorganic materials by causing them to bond chemically 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 layer 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. As a 

result of boiler slag’s vitrified nature, the individual components within the boiler slag have an 

extremely low potential to leach, become airborne, or otherwise escape from the glassy 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 types have shown reduced leachability 

of inorganics.” Id. at 7-1. EPA also has referred approvingly to the chemical and physical 

durability of vitrified materials. Id. at 1-2. The Agency has even gone so far as to say: 

“Although not measured directly, the long-term durability of 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.
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Harsco’s own assessment of boiler slag’s physical durability is 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. As noted, in the 

MSDS, the boiler slag has:

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

 A melting temperature above 2,500° F;

 A typical 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 Characteristic 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. As the Black Beauty® MSDS demonstrates, none of the identified 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. Together, those listed components 

typically 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 
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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 glassy 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 Modifications To Operating Procedures 

At Coal-Fired Electric Utilities Will Alter The Nature Or Properties Of 

Boiler Slag

There is no basis for concluding that the increased use of advanced air-pollution control 

technologies at coal-fired power plants will have any effect on either the makeup of boiler slag’s 

constituents or the potential for those constituents to leach from the boiler slag. Harsco 

understands that these potential concerns could arise only 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 issue in its report that 

evaluated “changes in composition and constituent release that may occur 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).
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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 furnaces that create boiler slag. 

No power plants are purchasing and installing new slag tap or cyclone type 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 type 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 technologies 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 theoretically 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 Test Data Confirm That Boiler Slag Should Not Be Regulated 

Under RCRA Subtitle C

1. The boiler slag data EPA cites in the record show no leachate levels of 

concern.

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 because of certain constituent concentration in the resulting leachate,
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regulating a particular solid waste as a special or hazardous waste under Subtitle C. This is 

consistent with our expectations. To 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 analytical materials cited in the proposal and the docket concerning 

boiler slag present precisely the same TCLP leachate data that EPA used to support its existing

policy of keeping boiler slag and the other CCRs outside the reach of RCRA’s Subtitle C. 58 

Fed. Reg. 42466 (Aug. 9, 1993); 65 Fed. Reg. 32213 (May 22, 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 levels. 

EPA’s Technical Background Document For The Report To Congress On Remaining Wastes 

From Fossil Fuel Combustions Waste Characterization (March 15, 1999) (“EPA 1999 Technical 

Background Document”) included a table that provided “Boiler Slag TCLP Data (mg/l).” See id. 

at 3-5, Table 3-5. Similarly, 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. 

Boiler slag TCLP test results cited in the docket do not justify subjecting waste boiler 

slag to Subtitle C rules. Most of the samples listed in Table 3-5 of EPA 1999 Technical 

Background Document exhibited no detectable concentrations of the tested metals even in 

analyses 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 levels. Id. While the EPA 1999 Technical Background Document’s 
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entries for TCLP tests on boiler slag reported one each of detected values of chromium, lead, and 

mercury above their respective RCRA regulatory levels, the high percentage of samples reported 

as non-detects, the very low median concentrations, and the very low mean concentrations all 

strongly 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-Volume Coal 

Combustion Waste (July 30, 1993) at 9; see also, 58 Fed. Reg. 42466, 42474 (Aug. 9, 1993) 

(explaining screening criteria). 

In its 1993 Regulatory Determination, EPA looked at both Extraction Procedure (“EP”) 

and TCLP leachate test data and found little evidence of any elevated 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 infrequently. 

Id. (emphasis added). EPA also gathered other leachate data during the public comment period 

and noted that:

[t]he few EP and TCLP results provided [by commentors] were 

consistent 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 levels “are infrequent and the average 
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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 of 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 boiler 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 of 42 CCR waste 

management units. That DOE report made two critical findings: (i) boiler slag accounted for 

only about 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. DOE, 

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 
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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 leaching. 

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 significant 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 provides 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 proposed 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 yielded 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*

Chromium

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
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TCLP - MG/L

Harsco Minerals 

Boiler Slag Source 

Number

Date

5.0*

Silver

5.0*

Arsenic

100*

Barium

1.0*

Cadmium

5.0*

Chromium

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

Analytical Laboratory Services, Inc. (“ALS”)2 for analysis in accordance with the TCLP test 

method requirements. Three of the samples comprised pre-blast (unused) Black Beauty®

Abrasive materials of different sized grains. The other three samples comprised post-blast (used) 

Black Beauty® Abrasive materials of different sized grains. Harsco specifically commissioned 

the pre-blast and post-blast TCLP analyses to determine whether the blasting process produced 

any changes in the boiler slag that might alter the ability of metals to leach from the boiler slag 

and yield significantly different TCLP results.

All of Harsco’s January 2010 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 below the RCRA 

regulatory level 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 1/100th of 

the relevant RCRA regulatory level 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 level 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 level 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 

yield 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, Inc., 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 Results 10/21/10; 40 C.F.R. § 261.24.

5 ALS Test Results 10/21/10; 40 C.F.R. § 261.24.
- 14 -

E. EPA’s Alternate Leachate Testing 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 Garrabants, A.C., An Integrated Framework for Evaluating 

Leaching in Waste Management and Utilization of Secondary Materials, 19(3) ENVTL.

ENGINEERING SCI. 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 public should be afforded an opportunity to evaluate 

and comment on the appropriateness, utility, and reliability of the Vanderbilt method before it is 

used for RCRA classification purposes. 

Absent compliance with the review and approval process called for by 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 established 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 relying on leachate testing results derived 

from an unapproved method, the Vanderbilt method test results cited 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 boiler slag samples.6 Instead, 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 from 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 leachate test that is valid for use in this 

proposed RCRA-classification action, Harsco arranged for Analytical Laboratory Services, Inc. 

(“ALS”) to test boiler slag using the Vanderbilt method. The laboratory analyzed 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 analyzed 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 of waste-management scenarios. Accordingly, ALS 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 analytical 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 analytical protocols, ALS 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 liquidto-solid ratios; and (iv) the employment of extended release measures. By varying the physical 

conditions, one would expect to increase the possibility for 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 

potentially 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 from 

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 significant, given the 

strong affinity for 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, WEPA Memorandum of January 28, 2004 to Peter Caulkins Associate Director, Special 

Review and Registration Division, OPPTS, USEPA, Re: Tolerance 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 low from a RCRA perspective. The arsenic and 

barium levels were orders of magnitude below the regulatory levels 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 for barium, it had a detected 

leachate value of 0.040 mg/l, a mere 1/2500th 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 significant 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 significant 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 second 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 0.031 mg/l.17 For barium, ALS 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 cadmium is 1 mg/l.20 

40 C.F.R. § 261.24. While chromium’s TCLP regulatory level 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 significant 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, ALS 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 were 

not detected even at very low laboratory detection levels. 24 Those metals that were detected in 

the leachate were only 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 ALS kept water in contact with the tested boiler slag material for 

different periods of time, ranging from one hour to eight days.27 When it analyzed the resulting 

leachates, ALS 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 of 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 For Improved Physical Safeguards At CCR Waste-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 Test 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 measures. 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 Subtitle C 

regulations simply because 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 types 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 CCR 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 wastefacility in Kingston, Tennessee and the other waste-management shortcomings identified at some 
- 21 -

CCR disposal units by issuing 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 significant 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? OTHERS?] that suggest 

appropriate revisions to the Agency’s Subtitle D proposal. If 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 REFERENCE AND ENDORSE ANY 

RELEVANT COMMENTS FROM OTHERS.] 

G. The Record Does Not Contain Adequate Support For Dismantling EPA’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 has 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 framework. An entire recycling industry exists 
- 22 -

in this country because EPA’s existing RCRA policy exempts CCRs from Subtitle C hazardous 

waste status and thereby, 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. As 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 for 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 scheme has created significant and varied reliance interests. Because of that 

reliance, EPA needs to provide a highly detailed explanation justifying any proposed policy

change with regard to boiler slag. A review 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 used to justify a revision 

to boiler slag’s current RCRA status. The absence of useful or relevant boiler slag data is not 
- 23 -

surprising. Most 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 meaningful boiler slag-specific 

assessment. Because boiler slag’s status as a vitrified, encapsulating material has not changed in 

the intervening years, 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 waste boiler slag to Subtitle C status would be arbitrary and capricious.

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

A. EPA’s Proposal To Regulate All Four Waste CCRs Under Subtitle C In 

Exactly The Same Fashion Improperly Disregards The Disparate 

Characteristics Of Each Waste 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 type 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 associated with the CCR we beneficially reuse -- boiler slag waste. 

The administrative record for this rulemaking strongly shows that EPA has no valid basis for 
- 24 -

regulating boiler slag waste as a hazardous or special waste under RCRA Subtitle C. As 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 To The Listing Criteria In 40 

C.F.R. § 261.11 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 listing 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, glassy material; (ii) it only contains low concentrations 

of constituents of potential concern; (iii) vitrification effectively encapsulates and otherwise 

binds its constituents within the glassy 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. First, little boiler slag is 

actually discarded (about 200,000 tons of waste boiler slag per year 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. Second, even when 
- 25 -

discarded, boiler slag's vitrified 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 of 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 In other 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 EPA Cited To Support The 

Proposed Rulemaking Do Not Involve Waste 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 Subtitle C regulation. If, however, EPA elects to issue any Subtitle 

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. Such an approach would 

stigmatize and penalize, without relevant data, the innocent companies that generate, process, 

use, or otherwise handle boiler-slag simply because boiler slag waste is a subset of the broad 

CCR waste category. Boiler 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 EPA Uses To Support 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 fails 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, fly ash, bottom 

ash, and FGD sludge. Instead, the risk assessment was based largely 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 substancespecific 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 typically has arsenic levels that are orders of magnitude below the arsenic 

levels typically found in fly ash leachate (0.002 mg/L versus 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 circumstances of beneficial use; this is confirmed by Harsco’s TCLP analysis of raw 

materials, processed ready-for-market materials, and post-use materials. [INTERNAL CROSSREFERENCE.] The risk assessment describes 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 generally immobile and environmentally benign. 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 IF STEVE IDENTIFIES ANY ADDITIONAL PROBLEMS WITH THE 

DATA IN THE RISK ASSESSMENT DOCUMENT.]

E. EPA’s Prior Regulatory Determinations And Bevill Amendment Findings 

Remain Valid For Boiler Slag

The May 22, 2000 EPA Regulatory Determination confirming boiler slag’s exemption 

under the Bevill Amendment correctly concluded that “the Subtitle D approach here should be 

fully effective in protecting human health and the environment.” 65 Fed. Reg. 32,233 (May 22, 

2000). That conclusion 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. Based 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. To change boiler slag’s RCRA status because of EPA’s 

flawed analysis of data and damages cases totally unrelated to boiler slag would punish slag 

producers and slag users by a lack 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. To categorize waste boiler slag as a RCRA Subtitle C hazardous 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 new boiler slag data 

contradicting the earlier determinations.

F. A Single Subtitle D Regulation For All Waste 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. If EPA rejects the Subtitle C option, all waste 

CCRs will necessarily remain solid wastes. While there are various differences among the four 

types 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 EPA ELECTS A SUBTITLE C APPROACH, THE RULE MUST TACITLY 

EXEMPT BENEFICIALLY REUSED BOILER SLAG FROM REGULATION

A. Beneficially Reused Boiler Slag Must Be Expressly Exempted From Any 

Subtitle C Regulation

Virtually all boiler slag generated in the U.S. is beneficially reused. Each year, 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 of uses, including roofing shingle components, blasting abrasives, glassmaking 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 Subtitle 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 Totally “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 affirmatively state that all boiler slag is a “totally encapsulated” CCR. A vitrified 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 beneficial 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 boiler 

slag originally destined for beneficial reuse and subsequently discarded should be exempted from 

any automatic listing as a Subtitle C waste. Similarly, any finished product that incorporates 

 

33 Gauthier, Michelle M., ENGINEERED MATERIALS HANDBOOK 69 (ASM International, 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. Boiler slag’s long 

history of favorable leachate testing results, as well as the updated test data included in these 

comments, supports this conclusion. Using 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. COMPANIES INVOLVED WITH BENEFICIALLY REUSED CCRS ARE 

UNFAIRLY EXPOSED TO LITIGATION 

A. Lawsuits Will Come From A Variety 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-happy society, a regulatory

classification that raises concerns about the potentially hazardous 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 Subtitle C regulation.36 The utility estimates that a decision to regulate waste CCRs as a 

“special” or “hazardous” waste would triple the utility’s insurance costs.37 Such anticipated 

 

36 Associated 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 company 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 CCRs that are chemically and physically 

identical to the waste CCRs EPA would regulate as "hazardous." Commercial 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 have 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 rightly 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 company that 

previously discarded CCRs might face liability because 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 company 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. Plaintiffs 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 product purchasers and users would be exposed to the exact same 

materials EPA has classified as “hazardous” when they are discarded. Such an argument based 

on a link to Subtitle C status may even lead to imposition of strict or per se product liability.

V. RECLASSIFYING WASTE CCRS UNDER SUBTITLE C WILL SUBJECT 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 “special 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 described 

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-glass-based abrasive, New Age® 

Blast Media. Their attack campaign openly 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. A press 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 as 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”). See

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 conducted a multiple-email campaign 
- 37 -

addressed to abrasives users that most recently provides a link to 

http://www.chooseyourabrasivewisely.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 placed an 

advertisement suggesting that EPA will label and/or regulate boiler slag, including boiler-slagbased 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 of 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 cite 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.” Both 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 proposed rule has stigmatized boiler slag and, 

therefore, the Agency wants 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 21, 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 byproduct 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. As such, it emphasized the presence of 

metals in boiler slag without noting that the metals are only present at very low 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.

Competitors 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. Members of the Asphalt Roofing Manufacturers Association 

previously faced 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.

Information 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. Harsco 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 only be expected 

to develop even harsher and more frequent attacks based on that rule to drive customers from 
- 40 -

boiler slag abrasives and to recycled glass 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 Forced To Fight Claims That 

CCRs Are Hazardous Based On A CCR Waste Disposal 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 types of products. 

Our competitors will note that the CCR-based products contain the exact same materials that 

EPA has listed as a Subtitle C special 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 cited 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, both types 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 constituent distinctions exist. The industries that use these other recycled 

hazardous materials touted by EPA will be handling the same hazardous materials regardless of 

which supply source 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 of the cases EPA cited, the facilities that initially generated 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. As such, the purchasers also have no reason to be afraid of the very familiar 

hazardous materials produced from their own wastes. 

Many of 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 potentially 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 

different components. Unlike the hazardous waste recycling examples EPA cited, our CCR 

reuse industry competes with companies that produce very different products with very different 

components. For example, boiler-slag-based blasting grit contains minute levels 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. Boiler 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 significant concerns for human health or the environment. We have been able to do 

so by explaining that boiler slag is vitrified and its components, therefore, leach only at 

extremely low 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. Most significantly, competitors will point to any regulatory reclassification of 

waste boiler slag under Subtitle C as evidence that the U.S. Government 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 present an insurmountable 

obstacle to Harsco’s efforts to market to customers who may be 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. If 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 linking our product to a material regulated as hazardous or regulated as a 

special waste subject to hazardous waste regulations. If there is this kind of bad publicity and 

negative pressure concerning boiler slag disposal activities, many companies 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 clear of any such uncertainties, and many customers who fear liability exposures may do 

just that.

C. Boiler Slag Is Vulnerable To Stigma 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 be 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” 

components 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 types of 

harmful marketing effects. 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 types 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 Would 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. A relevant example is 

presented by the way some states regulate fertilizer derived from hazardous waste. Under 40 

C.F.R. § 266.20(d), fertilizers containing hazardous waste may be applied to the land without 

being subject to RCRA Subtitle C regulation, provided that the fertilizers have met certain 

treatment standards for those hazardous wastes. However, 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 be 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 beneficial 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 blocks 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 WL 86745 (S.D. Ohio 2009), an Ohio EPA determination rendered certain 

masonry blocks unusable because of the trace presence of hazardous wastes, despite the fact that 

EPA permits the use of the recycled spent material. Because of the Ohio EPA’s determination, 

US Technology finds 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 waste 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 have 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. We would expect such states to impose stricter regulation on any CCR 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 can issue even tighter restrictions on the use of coal combustion 
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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 be used. As 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 To Subtitle C Special Waste Status Would Create A Legal 

Barrier To 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, Pennsylvania, 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 of those states 

have indicated they would not allow the beneficial use of CCRs. See ACAA letter of March 25, 

2009. Harsco 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 of some or all of the 

remaining CCR beneficial use applications. If 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.
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F. Businesses Have Been Damaged Significantly When Customers Wrongly 

Consider A Product To Be “Hazardous”

Once a product has been stigmatized, wrongly or not, because it contains components 

that the public has been led to believe are hazardous, that product can suffer significant and longlasting 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 & Opportunities, 10 Risk: 

Health, Safety & Environment 269 (Summer 1999) (emphasis added). If EPA were to classify

any boiler slag as a Subtitle C special or hazardous waste, our industry would face the problem 

of “social amplification of risk” because “we live 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 type of destructive stigmatization.

Even in the absence of a competitor’s negative advertising campaign, Harsco and other 

businesses marketing boiler 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 grossly underestimated the public’s 

typical 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: Understanding Public Challenges to Modern Science and Technology, James 

Flynn, 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 justifying different 

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 of harm); Risk, Media and Stigma at 338 (in response to minor benzenecontamination incident, consumer pressure forced removal of all Perrier bottles from worldwide 

market even though FDA concluded the health risk was nil). To 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 careful 

scientific analyses, can be enough to force the product from the marketplace. Two such 

situations are instructive. In one instance, millions of consumers stopped 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 significant 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 of people seek to avoid contact with all carcinogens and chemicals 

otherwise characterized as harmful. Id. at 338. The public’s typical 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 model, 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 Powerful 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 CCRs, 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. Unfortunately, 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 easily 

control potential liability exposures. In addition, our customers and the ultimate consumers of 

our products are likely to demand the readily available competing materials that simply do not 

present any "hazardous waste" concerns. Once 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 concerns, and very real market barriers that 

will drive our existing 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. As noted above, those stigmatization efforts and 

marketing attacks are already openly 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 fears, the effect could easily 

swamp our industry.

H. EPA Has An Obligation To Consider Potential 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 be 

appropriate.” 40 C.F.R. § 261.11(a)(3)(xi). In the preamble to its proposed rule, EPA notes that 

the Agency “is concerned about potential stigma” and is seeking suggestions on how to reduce 

any perceived 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 coal 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.” 42 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 Determination, “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 combustion residuals. 58 Fed. Reg. at 42470.

This is not a situation like HWTC 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 consider 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.” 861 F.2d at 

____. Used 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. To 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 ARBITRARY 

OR CAPRICIOUS

A. The Boiler Slag Data Are Inadequate To Justify 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 22, 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 results 

supporting EPA’s May 2000 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 levels used to characterize a material as hazardous waste. 75 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 from, let alone contradicts the data the 

Agency cited in its 1993 and 2000 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 

technical knowledge about boiler slag and other CCRs and their beneficial uses, EPA’s prior 

1993 and May 2000 Regulatory Determinations that kept beneficially reused CCRs exempt from 

RCRA’s hazardous waste regulations remain valid and appropriate. 

The available 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 immobile 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). To meet the APA standard for a properly justified 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. 
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B. There Is No Sound Reason To Change The Existing CCR Policy That 

Created The Beneficial 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. 1800, 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. Harsco and others in the CCR industry have relied on and 

made major business decisions based on the scope and longevity of 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. Since 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 contracts 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 estimated, on a combined basis, to be approximately $200 million per 

year, 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 rely on the availability of boiler slag-based products. Their workers could be 

negatively impacted by regulations restricting the availability of CCR-based products or severely 

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. Conversion 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 the EPA docket for the proposed rule).
- 56 -

pipeline construction and maintenance, and armored military vehicle construction and 

refurbishment. Together these industries represent hundreds of thousands of workers and affect 

every aspect of modern life.

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 beneficially reused 30 million tons of CCRs, and by 2008, 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 useful 

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 purely defensive CCR management scheme that controls risk by limiting 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 is proposing to do more than simply issue a new 

rule; EPA’s proposed RCRA rule would make major changes to the Agency’s current CCR 

policy that governs boiler slag. Because EPA’s rulemaking record does not contain any

meaningful new boiler slag information that could possibly justify reclassifying waste boiler slag 

as a Subtitle C-regulated waste, the Agency cannot meet the standard for reversing EPA’s 

existing RCRA policy of regulating waste boiler slag’s waste as non-hazardous status under 

RCRA. 
- 57 -

Under the standards found in the APA and delineated by courts’ interpretation of what 

constitutes “arbitrary or capricious” agency action, the record shows that EPA has not provided 

sufficient justification for departure from its earlier decision to categorize coal combustion 

residuals 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 be 

required to “provide a reasoned analysis indicating that prior policies and standards are being 

deliberately changed, not casually ignored. Moreover, 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 (9th 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. Ill. 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 boiler slag as 

a Subtitle C special or hazardous waste. To 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 evidence 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 special or hazardous waste. Accordingly, 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 types was necessary to product a consistent and simple screening analysis.” RTI, 

Constituent Screening for Coal Combustion 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 possess 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-available 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. A careful 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 basically 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 existing CCR policy will run afoul 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 existing CCR policy, and 

waste boiler slag and the other waste CCRs should only be regulated under Subtitle D rather than 

Subtitle C.