31622 Federal Register / Vol. 86, No. 113 / Tuesday, June 15, 2021 / Rules and Regulations 

we do discuss the effects of this rule 

elsewhere in this preamble. 

F. Environment 

We have analyzed this rule under 

Department of Homeland Security 

Directive 023–01, Rev. 1, associated 

implementing instructions, and 

Environmental Planning COMDTINST 

5090.1 (series), which guide the Coast 

Guard in complying with the National 

Environmental Policy Act of 1969 (42 

U.S.C. 4321–4370f), and have 

determined that this action is one of a 

category of actions that do not 

individually or cumulatively have a 

significant effect on the human 

environment. This rule involves a safety 

zone lasting approximately 7 hours that 

would prohibit entry within 100-yards 

for swim participants in Cocos Lagoon. 

It is categorically excluded from further 

review under paragraph L60(a) of 

Appendix A, Table 1 of DHS Instruction 

Manual 023–01–001–01, Rev. 1. A 

Record of Environmental Consideration 

supporting this determination is 

available in the docket. For instructions 

on locating the docket, see the 

ADDRESSES section of this preamble. 

G. Protest Activities 

The Coast Guard respects the First 

Amendment rights of protesters. 

Protesters are asked to call or email the 

person listed in the FOR FURTHER

INFORMATION CONTACT section to 

coordinate protest activities so that your 

message can be received without 

jeopardizing the safety or security of 

people, places or vessels. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

■ 1. The authority citation for part 165 

continues to read as follows: 

Authority: 46 U.S.C. 70034, 70051; 33 CFR 

1.05–1, 6.04–1, 6.04–6, and 160.5; 

Department of Homeland Security Delegation 

No. 0170.1. 

■ 2. Add § 165.1418 to read as follows: 

§ 165.1418 Safety Zone; Cocos Lagoon, 

Merizo, GU. 

(a) Location. The following area, 

within the Guam Captain of the Port 

(COTP) Zone (See 33 CFR 3.70–15), all 

navigable waters within a 100-yard 

radius of race participants in Cocos 

Lagoon, Merizo, Guam. Race 

participants, chase boats, and organizers 

of the event will be exempt from the 

safety zone. 

(b) Definitions. As used in this 

section, ‘‘designated on-scene 

representative’’ means a Coast Guard 

Patrol Commander, including a Coast 

Guard coxswain, petty officer, or other 

officer operating a Coast Guard vessel, 

and a Federal, State, and local officer 

either designated by or assisting the 

COTP Sector Guam in the enforcement 

of the safety zone. 

(c) Regulations. (1) In accordance with 

the general regulations in section 

§ 165.23, entry into, transiting, or 

anchoring within this safety zone is 

prohibited unless authorized by the 

COTP or a designated on-scene 

representative. 

(2) This safety zone is closed to all 

persons and vessel traffic, except as may 

be permitted by the COTP or a 

designated on-scene representative. 

(3) Persons and Vessel operators 

desiring to enter or operate within the 

safety zone must contact the COTP or a 

designated on-scene representative to 

obtain permission to do so. The COTP 

or a designated on-scene representative 

may be contacted via VHF Channel 16 

or at telephone number (671) 355–4821. 

Vessel operators given permission to 

enter or operate in the safety zone must 

comply with all directions given to 

them by the COTP or a designated onscene representative. 

(d) Enforcement period. This safety 

zone will be enforced on the Sunday 

before Memorial Day from 6:00 a.m. to 

1:00 p.m. annually, unless the event is 

delayed or cancelled due to weather. 

The Coast Guard will provide advance 

notice of enforcement and a broadcast 

notice to mariners to inform the public 

of the specific date of the event. 

Dated: June 9, 2021. 

Nicholas R. Simmons, 

Captain, U.S. Coast Guard Captain of the 

Port, Guam. 

[FR Doc. 2021–12552 Filed 6–14–21; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 261 

[EPA–HQ–RCRA–2016–0040; FRL–10014– 

42–OLEM] 

Corrosive Waste Rulemaking Petition; 

Denial 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice; final denial of 

rulemaking petition. 

SUMMARY: The Environmental Protection 

Agency (EPA or the Agency) is 

responding to a rulemaking petition 

(‘‘the petition’’) requesting revision of 

the Resource Conservation and 

Recovery Act (RCRA) corrosivity 

hazardous waste characteristic 

regulation. The petition requests that 

the Agency make two changes to the 

current corrosivity characteristic 

regulation: Revise the regulatory 

threshold for defining waste as corrosive 

from the current value of pH 12.5, to pH 

11.5; and expand the scope of the RCRA 

corrosivity definition to include nonaqueous wastes in addition to the 

aqueous wastes currently regulated. The 

Agency published a tentative denial of 

the rulemaking petition on April 11, 

2016. Today the Agency is publishing a 

final denial of the rulemaking petition. 

DATES: This final action is effective on 

June 15, 2021. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–RCRA–2016–0040, at 

http://www.regulations.gov. All 

documents in the docket are listed on 

the http://www.regulations.gov website. 

Certain other material, such as 

copyrighted material, is not placed on 

the internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available electronically through http://

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Gregory Helms, Materials Recovery and 

Waste Management Division, Office of 

Resource Conservation and Recovery, 

Office of Land and Emergency 

Response, (Mail Code 5304P), 

Environmental Protection Agency, 1200 

Pennsylvania Ave. NW, Washington, DC 

20460; telephone number: 703–308– 

8845; email address: helms.greg@

epa.gov 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Executive Summary 

II. General Information 

A. Does this action apply to me? 

B. What action is EPA taking? 

C. What is EPA’s authority for taking this 

action? 

D. What are the incremental costs and 

benefits of this action? 

III. Background 

A. Who submitted the petition to the EPA 

and what do they seek? 

B. Who commented on the tentative denial 

of the petition? 

IV. Public Comments Received and Agency 

Response 

A. Petitioner Comments 


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1 § 261.22(a)(1) identifies an aqueous solid waste 

as a corrosive hazardous waste if a representative 

sample exhibits a pH less than or equal to 2, or 

greater than or equal to 12.5.when tested with a pH 

meter using EPA Method 9040C, published in the 

Agency Hazardous waste test method Compendium, 

SW–846. https://www.epa.gov/hw-sw846/sw-846- 

compendium. 

2The Petitioners’ lawsuit was filed with the U.S. 

Court of Appeals for the District of Colombia 

Circuit. https://www.cadc.uscourts.gov/internet/ 

home.nsf. 

1. The Petitioners Assert That the Agency 

Inadequately Considered the Available 

Information When it Promulgated the 

Existing RCRA Corrosive Hazardous 

Waste Definition in 1980 

2. The Petitioners Assert That the Agency 

Must Use the Globally Harmonized 

System for the Classification and 

Labeling of Chemicals (GHS) as the Basis 

for the RCRA Corrosivity Regulation 

3. The Petitioners Assert That the Agency 

Inadequately Considered Supporting 

Materials Submitted With the Petition, 

and Other Facts Cited by the Petition 

4. The Petitioners Assert That Concluding 

That WTC Exposures and Injuries Are a 

RCRA Damage Incident is Not Necessary 

To Support the Petition 

5. The Petitioners Assert That EPA 

Misunderstands the Applicability of 

RCRA Regulations to the WTC Dust and 

Debris 

6. The Petitioners Assert That the Agency 

Improperly Considered the Potential 

Impact of the Requested Corrosivity 

Characteristic Revisions 

7. Other Petitioner Comments 

B. Industry Stakeholder Comments 

C. Other Comments 

V. EPA’s Conclusions and Rationale for its 

Final Action Denying the PEER/Jenkins 

Rulemaking Petition To Revise the RCRA 

Corrosivity Hazardous Characteristic 

Regulation 

I. Executive Summary 

This action finalizes the Agency’s 

April 11, 2016 tentative denial of a 

rulemaking petition submitted by the 

group Public Employees for 

Environmental Responsibility (PEER) 

and Dr. Cate Jenkins, Ph.D. (‘‘PEER/ 

Jenkins Rulemaking petition’’), on 

September 8, 2011, requesting that the 

Agency revise the corrosivity hazardous 

waste characteristic regulation 

promulgated under Subtitle C of the 

Resource Conservation and Recovery 

Act (RCRA). The petitioners sought two 

changes to the existing corrosivity 

characteristic regulation: (1) Revision of 

the pH regulatory value for defining a 

waste as corrosive hazardous waste from 

the current pH 12.5 or higher, to pH 

11.5 or higher; and (2) expansion of the 

scope of the corrosivity regulation to 

apply to non-aqueous wastes in addition 

to the aqueous wastes addressed by the 

current regulation. The Agency 

published for public comment a 

tentative denial of the PEER/Jenkins 

Rulemaking petition on April 11, 2016 

(81 FR 21295), proposing to deny both 

requested revisions to the corrosivity 

characteristic regulation sought by the 

petitioners. In this Notice (and the 

Response to Comments document 

accompanying it), the EPA responds to 

the public comments received on the 

tentative denial and takes final action to 

deny the petition. 

II. General Information 

A. Does this action apply to me? 

As the Agency is not adding to or 

revising its regulations with today’s 

Notice, no entities or wastes will be 

newly regulated or deregulated. 

B. What action is EPA taking? 

Today the Agency is issuing a final 

response to the PEER/Jenkins 

rulemaking petition of September 8, 

2011 that seeks revision to the RCRA 

corrosivity characteristic regulation for 

classifying waste as hazardous that 

would expand the scope of the 

regulation and subject additional waste 

to RCRA’s cradle-to-grave waste 

management system. The Agency is 

denying the petition in its entirety. 

Under Subtitle C of RCRA, the EPA 

has developed regulations to identify 

solid wastes that must then be evaluated 

to determine whether they must also be 

classified as hazardous waste. 

Corrosivity is one of four waste 

characteristics that may cause the waste 

to be classified as ‘‘RCRA hazardous.’’ 

The Agency defines which wastes are 

hazardous because of their corrosive 

properties at 40 CFR 261.22. On 

September 8, 2011, the 

nongovernmental organization (NGO) 

PEER and Cate Jenkins, Ph.D., submitted 

a rulemaking petition to the EPA 

seeking changes to the current 

regulatory definition of corrosive 

hazardous wastes under RCRA. On 

April 11, 2016, the Agency published a 

Federal Register notice tentatively 

denying the rulemaking petition. In that 

notice of denial, the Agency provided 

its evaluation of the requested 

regulatory revisions, the materials 

submitted by the petitioners in support 

of the regulatory revisions being sought, 

and supplementary information 

collected by the Agency and identified 

as relevant to the issues raised by the 

petition. The 2016 tentative denial of 

the petition also solicited comments 

from the public on the issues raised by 

the petition and its supporting 

materials, the Agency’s supplemental 

materials, materials submitted by a 

group representing industries that might 

be affected by any changes to the 

corrosivity regulation and the Agency’s 

assessment of all these materials. 

Comments were initially to be accepted 

until June 10, 2016; however, the public 

comment period was extended by six 

months, closing on December 7, 2016, at 

the request of the petitioners. 

Today’s Notice (and accompanying 

supporting material) responds to the 

comments received from the public on 

the tentative denial, and takes final 

action on the rulemaking petition, 

denying the petitioners’ request to 

revise the RCRA corrosivity regulation. 

The reasons for the Agency’s denial of 

the petition are described below in 

today’s Notice. 

C. What is EPA’s authority for taking 

this action? 

The corrosivity hazardous waste 

characteristic regulation was 

promulgated under the authority of 

sections 1004 and 3001 of RCRA, as 

amended by the Hazardous and Solid 

Waste Amendments of 1984 (HSWA), 42 

U.S.C. 6903 and 6921. The Agency is 

responding to this petition for 

rulemaking pursuant to 42 U.S.C. 6903, 

6921 and 6974, and implementing 

regulations 40 CFR parts 260 and 261. 

D. What are the incremental costs and 

benefits of this action? 

There are neither costs nor benefits 

resulting from this final action, as the 

Agency is not promulgating any 

regulatory changes. 

III. Background 

A. Who submitted the petition to the 

EPA and what do they seek? 

On September 8, 2011, petitioners 

PEER and Cate Jenkins, Ph.D., submitted 

to the EPA a rulemaking petition 

seeking revisions to the RCRA 

hazardous waste corrosivity 

characteristic definition (see 40 CFR 

261.22(a)(1)).1 On September 9, 2014, 

the petitioners filed a petition for Writ 

of Mandamus, arguing that the Agency 

had unduly delayed in responding to 

the 2011 petition, and asking the Court 2

to compel the Agency to respond to the 

petition within 90 days. The Court 

granted the parties’ joint request for a 

stay of all proceedings until March 31, 

2016. Following publication of the 

tentative denial of the petition, the 

parties jointly petitioned the court to 

hold the case in abeyance until the 

Agency publishes in the Federal 

Register a final denial of the Petition for 

Rulemaking or an Advanced Notice of 

Proposed Rulemaking or a Proposed 

Rule. Under this agreement, the Agency 

is obligated to file status reports with 

the court at 120-day intervals. The latest 


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3The term ‘‘corrosivity’’ is used extensively in 

discussions of this issue by both the petitioners and 

by the Agency. However, the Agency believes 

petitioners and the Agency each intend different 

meanings when using the term. The petitioners 

apply the term ‘‘corrosivity’’ to a broad range of 

possible impacts to human health, for example over 

a pH range of 9.76–11.5, as described at page 53 of 

the May 6, 2007 petition support document. When 

the Agency uses the term ‘‘corrosivity’’ in the 

context of impacts to exposed humans, it is 

referring to potentially severe injuries, such as 

dissolving of skin proteins, chemically combining 

with cutaneous fats, and severe damage to keratin, 

as described in the 1980 Background Document 

supporting the original corrosivity regulation and in 

the TD (see 81 FR 21297–21299, April 11, 2016). 

While today’s Notice focuses on potential adverse 

effects on humans (as this is the petitioners’ focus), 

the Agency was also concerned about the potential 

of corrosive wastes to damage storage containers, 

resulting in releases, mobilization of co-disposed 

acid or base-soluble wastes, and potential to 

adversely affect aquatic life when developing the 

corrosivity characteristic in 1980. This concern was 

largely addressed by part 261.22(a)(2). 

such report was filed with the court on 

April 5, 2021. 

The petition sought two specific 

changes to the 40 CFR 261.22(a)(1) 

definition of a corrosive hazardous 

waste: 

1. Reduction of the pH regulatory 

value for defining alkaline corrosive 

hazardous wastes from the current 

standard of pH 12.5 or higher to pH 11.5 

or higher; and 

2. Expansion of the scope of the RCRA 

hazardous waste corrosivity definition 

to include non-aqueous wastes, as well 

as currently regulated aqueous wastes. 

The Agency published for public 

comment a tentative denial of this 

RCRA rulemaking petition on April 11, 

2016, in accordance with 40 CFR 

260.20(c) and (e). The public comment 

period for the tentative denial was 

originally scheduled to close on June 10, 

2016, but was extended until December 

7, 2016, at the request of the petitioners. 

The Agency received 29 comments on 

the tentative denial (including requests 

for a comment period extension), and is 

today responding to those comments, 

and taking final action to deny all parts 

of the petition. 

B. Who commented on the tentative 

denial of the petition? 

Commenters include the petitioners, a 

number of groups representing different 

sectors of industry, health research 

groups studying persons exposed to the 

World Trade Center (WTC) collapse, the 

state of Michigan Department of 

Environmental Quality (DEQ), national 

and state groups representing municipal 

wastewater treatment facility owners/ 

operators (also known as publicly 

owned treatment works, or POTWs), 

and several private citizens. The public 

comments on the Agency’s tentative 

denial of the PEER/Jenkins Rulemaking 

petition can be found by searching at: 

http://www.Regulations.gov, using 

Docket ID Number EPA–HQ–RCRA– 

2016–0040. 

In a separate action, on April 13, 2017 

(82 FR 17793), EPA opened a public 

comment period to solicit public 

comment on virtually any existing EPA 

regulation, to implement Executive 

Order 13777 on regulatory reform (See: 

http://www.Regulations.gov, Docket ID 

Number EPA–HQ–OA–2017–0190). The 

Agency requested that the public 

identify regulations they believed to be 

in need of revision, including 

regulations commenters believed to be 

outdated, unnecessary, ineffective or 

unduly burdensome. Eight of the more 

than 400,000 comments received by the 

docket addressed the PEER/Jenkins 

Rulemaking petition and the Agency’s 

initial response presented in the 

tentative denial. Seven of the comments 

were from particular industries or 

industry trade groups or organizations, 

and one was from the State of Oklahoma 

Department of Environmental Quality 

(DEQ). EPA considered all the 

comments received, on both the 

tentative denial and the eight comments 

received on the PEER/Jenkins 

Rulemaking petition through the 

implementation of Executive Order 

13777. The petitioners’ comments and 

those of several individuals opposed the 

Agency’s tentative denial. Industry 

commenters generally supported it, as 

did the Michigan DEQ, organizations 

representing publicly owned treatment 

works (POTWs, which are municipal 

wastewater treatment facilities), and 

several private citizens. The Oklahoma 

DEQ supported regulation of nonaqueous wastes that may be corrosive. 

While two WTC-survivor health 

research groups commented in support 

of requests to extend the public 

comment period for the tentative denial, 

neither of these groups submitted 

substantive comments. 

IV. Public Comments Received and 

Agency Response 

A. Petitioner Comments 

Petitioners PEER and Dr. Jenkins 

submitted extensive comments 

addressing most aspects of the tentative 

denial. Today’s Notice addresses 

comments the Agency believes present 

the petitioners’ key arguments and 

supporting information advocating for 

their requested revisions to the 

corrosivity regulations. The Agency 

responds to more detailed petitioner 

comments in the Response to Comments 

document accompanying today’s Notice, 

which is available in the public docket 

for this action. While the PEER/Jenkins 

comments are wide-ranging, they can be 

summarized as raising the following 

major objections to the tentative denial 

and its conclusions: 

• The petitioners assert that the 

original corrosivity regulation did not 

appropriately consider the information 

available at the time the regulation was 

developed (i.e., 1980). 

• The petitioners assert that the 

Agency has a legal obligation to 

implement the Globally Harmonized 

System for the Classification and 

Labeling of Chemicals (GHS) criteria as 

the RCRA corrosivity regulation. 

• The petitioners assert that the 

Agency inadequately considered 

information submitted by petitioners in 

support of the petition. 

• The petitioners assert that many of 

the injuries to World Trade Center 

(WTC) disaster first responders and 

others were caused by the corrosive 

nature of the dust generated by the 

collapse of the towers,3 and that a 

revised RCRA corrosivity regulation 

definition can prevent such injuries 

should similar exposures occur in the 

future. 

• The petitioners assert that the EPA 

misunderstands the applicability of 

RCRA regulations to the WTC dust and 

debris. 

• The petitioners assert that the 

Agency impermissibly considered 

information on the possible economic 

impacts of revising the corrosivity 

regulation submitted by industry 

stakeholders and their representatives, 

and that the conclusions in the tentative 

denial are largely based on industry 

impact estimates. 

The discussion below describes the 

petitioners’ comments on the tentative 

denial in more detail and provides the 

Agency’s response to those comments. 

1. The Petitioners Assert That the 

Agency Inadequately Considered the 

Available Information When it 

Promulgated the Existing RCRA 

Corrosive Hazardous Waste Definition 

in 1980 

As in the petition, the petitioners 

argue in their comments on the tentative 

denial that the original regulation did 

not appropriately consider the 

information available in 1980, and that 

this represents an error. Petitioners 

believe that in relying on the 1972 

International Labor Organization (ILO) 

guidance, the Agency should have 

directly promulgated the ILO guidance 

values as the corrosivity regulation and 

should not have considered additional 

information in establishing the 

regulation. The ILO guidance, as well as 

GHS guidance (discussed below), is 

intended to represent the inherent, or 


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4Consideration of corrosivity hazards under 

plausible mismanagement conditions is part of the 

basic program structure developed by the Agency 

in 1980 for implementing RCRA. The Agency 

described its approach to implementing RCRA’s 

hazardous waste classification requirements in the 

rulemakings that promulgated the bulk of the RCRA 

regulatory program in 1980. In proposing its 

approach to developing hazardous waste 

characteristics regulations, the Agency proposed 

three criteria, the second of which was ‘‘. . . that 

the likelihood of a hazard developing if the waste 

is mismanaged is sufficiently great. . . .’’. The 

Agency continued this discussion by noting that 

‘‘EPA distilled the common features of hazardous 

waste—when improperly disposed of—into the 

following groups of candidate characteristics: . . . . 

2. Corrosivity. . . .’’ This discussion references the 

language of RCRA section 1004(5)(B) as the basis for 

the hazardous characteristics regulations, including 

corrosivity. (43 FR 58950, December 18, 1978) The 

Agency clarified the role of RCRA section 

1004(5)(A) in implementing RCRA in the 

rulemaking promulgating most of the RCRA 

regulatory program. In considering how to structure 

and use hazardous waste listings, the Agency 

identified criteria for two categories of listed waste: 

Acutely hazardous waste and toxic waste. RCRA 

section 1004(5)(A) is referenced in the Agency’s 

description of acutely hazardous waste, noting that 

these wastes are so dangerous that they meet the 

statutory definition ‘‘. . . regardless of how they are 

managed. It is EPA’s conviction that most wastes 

are hazardous only because they ‘‘pose a substantial 

. . . hazard . . . when improperly managed’’ and 

thus meet RCRA section 1004(5)(B). The discussion 

goes on to note that acutely hazardous waste ‘‘. . . 

include those which have been shown to be fatal 

to humans at low doses . . .’’ but notes that waste 

explosives would also meet the Part (A) definition. 

EPA used these criteria to identify a list of high 

concentration waste commercial chemical products 

identified as acutely hazardous at 40 CFR 261.33 

(45 FR 33106, May 19, 1980). Also see 40 CFR 

261.10, 261.11(a)(2) and 261.11(a)(3). 

The Agency identified one report of an LD50 value 

below the acute hazard criteria, for sodium 

hydroxide (acute hazard criteria LD50=50 mg/kg-bw 

or lower; NaOH reported LC50=44 mg/kg-bw, in 

rats). While this report may indicate that sodium 

hydroxide could be added to the ‘‘P-list’’ of 

hazardous wastes, it does not imply that potentially 

corrosive wastes considered broadly may pose acute 

toxic hazards (see: 40 CFR 261.33, and NIOSH 2015, 

as reported by PubChem/NLM; downloaded March 

20, 2019). 

5 40 CFR part 257.1 describes the scope of the 

solid waste management regulations. This part 

identifies exceptions from the general requirements 

for some wastes that are otherwise regulated (e.g., 

under section 402 of the Clean Water Act, or under 

40 CFR part 503), or for some materials which may 

not be waste when appropriately reused. 

6The Agency has also considered factors in 

addition to inherent hazard in regulating many 

other wastes. For example, in developing the 

toxicity characteristic (TC) regulation (40 CFR 

261.24), the Agency explicitly incorporated a 

measure of the leaching release potential of toxic 

constituents in waste (the Toxicity Characteristic 

Leaching Procedure test) and also estimates of the 

likely dilution and attenuation of hazardous 

constituent concentrations that may occur during 

groundwater transport from a disposal site to a 

down-gradient drinking water well that could be a 

point of human exposure (see: 55 FR 11798, March 

29, 1990). 

intrinsic hazards that may be posed by 

direct contact with materials, with no 

controls on or mitigation of exposure. 

However, RCRA directs the Agency to 

regulate hazards as they occur in waste 

(when plausibly mismanaged) in most 

cases, and the Agency regulated 

potentially corrosive wastes under 

RCRA section 1004(5)(B) (42 U.S.C. 

6903(5)(B)), as has been done for most 

wastes regulated as RCRA hazardous.4

RCRA’s prohibition on the open 

dumping of wastes (42 U.S.C. 6903(14)), 

and requirements for solid waste 

disposal and management (42 U.S.C. 

6944(a), (b)) means that all waste is 

intended to receive some level of 

management (under either federal or 

state laws and regulations), with some 

exceptions.5 Regulations at 40 CFR parts 

240–258 (particularly parts 257 and 258) 

describe the minimum management 

requirements for wastes, regardless of 

the hazards they may (or may not) pose. 

Wastes found to potentially pose 

significant or substantial hazards when 

managed at this minimal level of control 

require more stringent management. 

Such wastes warrant classification as 

hazardous (under 42 U.S.C. 6903(5)(B), 

through the listings and hazardous 

characteristics regulations) and control 

under the more stringent and detailed 

provisions of RCRA Subtitle C and the 

regulations developed under its 

authority. The Agency reserved RCRA 

section 1004(5)(A) for wastes that pose 

a significant hazard regardless of how 

they are managed. Therefore, the 

Agency appropriately relied on 

information in addition to the ILO 

guidance when developing the RCRA 

corrosivity characteristic, as described 

in the 1978 proposed rule, the 1980 

final rulemaking and its supporting 

Background Document (EPA 1980), 

when it published the tentative denial 

of the petition (81 FR 2199–21302, April 

11, 2016),6 and in issuing today’s final 

Notice and supporting information. 

When developing the current 

corrosivity regulation, the Agency 

proposed a value of pH 12.0 or higher 

to define hazardous corrosive waste (for 

aqueous wastes; 43 FR 58951–952, 

December 18, 1978). In consideration of 

public comments on the proposal, EPA 

established a final regulatory value of 

pH 12.5 or higher (and pH 2.0 or lower) 

to define aqueous corrosive hazardous 

waste (45 FR 33109, May 19, 1980). A 

consideration of the Agency in 

establishing the final regulation was the 

use of lime for treatment of municipal 

wastewater treatment sludges, as 

discussed in the Background Document 

(EPA 1980, pp 13–16). Such sludges 

contain a variety of organic chemicals, 

inorganic chemicals, and microbial 

contamination. Lime has been used for 

many years as a sludge treatment, 

particularly for the inactivation of 

microbial pathogens in the sludge. Such 

pathogens are effectively inactivated 

when the pH of the sludge is raised to 

pH 12 or higher, for a minimum of two 

hours and maintained at pH levels 

above 11.5 for an additional 22 hours 

(EPA 1981; EPA 1989; NRC 1996; Krach 

et al. 2008; and the National Lime 

Association, at: https://www.lime.org/ 

lime-basics/uses-of-lime/enviromental/ 

biosolids-and-sludge/). Treatment with 

lime can also provide control of odors 

that may be associated with more active 

biological pathogens. Lime continues to 

be used for biosolids ‘‘conditioning’’, 

which allows this material to be more 

safely used as an agricultural fertilizer, 

and also to be more safely disposed in 

a municipal or other landfill when not 

used as a fertilizer. Therefore, the 

proposal to revise the corrosivity 

regulatory value to 11.5 could have a 

significant impact on the 

implementation of available treatments 

and management options for municipal 

wastewater treatment sludges. 

The petition and petitioner comments 

on the tentative denial argue that 

consideration of the value of using lime 

in waste treatment in setting the 1980 

regulatory standard was improper at the 

time. However, considering the 

corrosive potential of wastes treated to 

high pH using materials like lime, with 

its widespread use for effective POTW 

sludge pathogen inactivation and 

stabilization was and remains an 

appropriate balancing of different waste 

management risks by the Agency. As the 

Agency noted in the tentative denial, no 

challenge to the 1980 regulation was 

filed, and the time period to challenge 

that rule has long passed under the 

judicial review provision of RCRA 

section 7006, which requires such 

challenges to be filed within 90 days of 

the rule’s promulgation. The 

opportunity to petition the Agency for 

changes to any RCRA rule is always 

available to members of the public (as 

in the current case), but such petitions 

are evaluated typically based on new 

information identified by petitioners (as 

well as information identified by the 

Agency, and those commenting on a 

proposed Agency action) as the basis for 

the requested changes to a regulation. 

Petitioners also argue that the current 

pH 12.5 corrosivity regulatory value is 

no longer necessary to allow reuse of 

biosolids due to other changes in the 

RCRA regulatory program, such as 

RCRA deference to the Clean Water Act 

(CWA) programs promulgated at 40 CFR 

part 503 addressing biosolids use as 

agricultural fertilizer. However, 

biosolids that are RCRA hazardous 

cannot be land applied as fertilizer 


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7 40 CFR 503.6 (e) on hazardous sewage sludge 

states that the regulations do not apply to sewage 

sludge that is hazardous waste. Therefore, pH 12 

sludge classified as corrosive hazardous waste 

(under the petitioners’ proposals) would be 

ineligible for land application under the Part 503 

program. 

8 GHS was first published in 2003 and has been 

periodically revised; it is currently in its eighth 

revision, published in 2019. See: https://

www.unece.org/trans/danger/publi/ghs/ghs_

welcome_e.html. 

9 In arguing that the EPA must adopt the GHS 

corrosivity criteria as the RCRA corrosivity 

definition, petitioners also over-simplify GHS. In 

the petitioners’ view, ‘‘adopting GHS’’ in the 

current context means establishing pH 11.5 as the 

corrosivity regulatory value. In fact, the GHS 

corrosivity criteria (GHS Chapter 3.2) also rely on 

human exposure data, animal test results, and in 

vitro test results as preferred data sources, and 

reliance on pH 11.5 only if other data are not 

available. 

10 DOT’s most recent revision to its regulations 

was published May 11, 2020 (91 FR 27810) in 

which DOT focuses first on consistency with the 

U.N. Transport of Dangerous Goods guidance. In 

modifying its regulation defining corrosivity, DOT 

specifically noted that its regulation does not rely 

on pH extremes to define corrosivity, a somewhat 

different approach than GHS takes (See 91 FR 

27830, May 11, 2020). 

11The UNECE GHS implementation tracking 

website provides progress for all countries. For the 

U.S., the latest reported activity by the EPA dates 

to 2007, and the latest reported GHS activity for 

CPSC is for 2008. (https://www.unece.org/trans/ 

danger/publi/ghs/implementation_e.html#c25877). 

The U.S. government has also not adopted GHS 

criteria as the basis for waste managment controls 

at U.S. military bases in foreign countries. For 

example, there is no reference to GHS in the 2018 

‘‘Japan Final Governing Standards’’ at: https://

www.usfj.mil/Portals/80/ 

2018%20JEGS.PDF?ver=2018-04-26-195301-487. 

under the Part 503 program.7 If the 

corrosivity regulatory pH was changed 

to pH 11.5 as petitioners request, lime 

stabilized biosolids (typically having a 

pH of 12.0 or higher) would be 

considered RCRA hazardous and 

ineligible for the Part 503 program. As 

hazardous waste, stabilized biosolids 

would be treated to reduce their pH to 

below 11.5, so they would no longer be 

hazardous waste (‘‘decharacterization’’ 

treatment and treatment for underlying 

hazardous constituents, which would be 

required by the RCRA land disposal 

restrictions (LDR) regulations; 40 CFR 

268.40). Stockpiled biosolids with 

lowered pHs show increases in 

biological activity (EPA 1981), resulting 

in the development of strong odors. 

2. The Petitioners Assert That the 

Agency Must Use the Globally 

Harmonized System for the 

Classification and Labeling of Chemicals 

(GHS) as the Basis for the RCRA 

Corrosivity Regulation 

In the petition, and in comments on 

the Agency’s tentative denial, the 

petitioners argue that the Agency should 

promulgate the guidance on corrosivity 

adopted by GHS as the RCRA 

corrosivity regulation, and further 

argues that the Agency has a legal 

obligation to do so. As described in 

greater detail in the tentative denial (81 

FR 21300–21302, April 11, 2016), GHS 

is a technical guidance document 

developed by coordination among 

several organizations of the United 

Nations (U.N.), with the participation of 

many U.N. member nations, including 

the U.S., and other stakeholders.8 The 

goal of GHS was to create a single 

hazard evaluation and labeling/ 

communication system that could be a 

global reference for chemicals and 

chemical products in transport, in the 

workplace and in commerce generally 

(GHS, Forward, paragraph 2). GHS is 

based on U.N.-sponsored technical 

guidance on the safe transport and 

handling of dangerous goods as well as 

on national and international systems 

for identifying chemical hazards in the 

workplace. 

The petitioners argue that the Agency 

has a legal obligation to implement the 

GHS criteria on corrosivity/irritancy as 

the RCRA corrosivity regulation.9

However, they acknowledge that 

adoption or reliance on GHS in 

regulations is voluntary: 

Although the GHS standard is voluntary for 

U.N. member nations, the United States has 

chosen to adopt it. (page 54, petitioner 

comments) 

In support of their statement that the 

United States has chosen to adopt GHS, 

petitioners reference a U.S. State 

Department website that encourages the 

adoption of GHS by federal regulatory 

agencies, and which notes that EPA 

participated in a GHS implementation 

committee managed by the State 

Department. However, the petitioners 

misunderstand the role and authority of 

this implementation committee. While 

seeking to facilitate adoption of GHS 

criteria in appropriate federal regulatory 

programs, the committee has no 

statutory authority to require that 

federal agencies adopt GHS in whole or 

in part in any of their regulatory 

programs. For example, while EPA has 

considered using GHS for product 

classification or labeling under FIFRA, 

it has not done so (https://www.epa.gov/ 

pesticide-labels/pesticide-labels-andghs-comparison-and-samples; 

downloaded 03/02/20). The Consumer 

Product Safety Commission (CPSC) has 

also considered GHS but not 

incorporated it into its regulations 

(https://www.cpsc.gov/content/policyof-the-us-consumer-product-safetycommission-on-the-globallyharmonized-system-of). 

The Department of Transportation 

(DOT) periodically updates its 

hazardous materials regulations (HMR) 

to ensure that they are ‘‘harmonized’’ 

with a variety of international 

transportation safety standards, 

including GHS. ‘‘Harmonizing’’ 

regulations generally means that 

although two sets of standards may be 

somewhat different from one another, 

they are not inconsistent. DOT most 

recently updated its regulations on May 

11, 2020, including revising its 

definition of corrosivity. DOT notes that 

its revised corrosivity regulation does 

not rely on pH extremes.10

Only one federal agency, the 

Occupational Safety and Health 

Administration (OSHA), has chosen to 

revise its regulations to implement a 

modified version of GHS, for its hazard 

communication standard (HCS), under 

the authority of the Occupational Safety 

and Health Act of 1970 (77 FR 17574, 

March 26, 2012).11 Two EPA programs 

focused on regulation of chemicals 

reference or rely on the OSHA HCS 

regulations. The Emergency Planning 

and Community Right-to-Know Act 

(EPCRA) emergency response program 

regulations require facilities to provide 

state and local emergency responders 

with chemical hazard information using 

OSHA/HCS-required safety data sheets 

(SDS) for chemicals they have on-site, 

and the EPCRA regulations have been 

updated to be consistent with the new 

OSHA requirements (See: 81 FR 38104, 

June 13, 2016). Under the Toxic 

Substances Control Act (TSCA), 

regulations for significant new uses of 

chemicals require a written hazard 

communications program to provide 

information to workers that may handle 

chemicals that are part of this program. 

Employers may rely on existing hazard 

communication programs established 

under the OSHA HCS regulations to 

show compliance with the TSCA 

program requirements. The Agency has 

proposed regulatory revisions to 

harmonize these EPA program 

requirements with the revised OSHA 

HC (81 FR 49598, July 28, 2016). 

While the UN aspires to make GHS a 

globally implemented system for 

evaluating and classifying the hazards 

posed by chemicals and chemical 

products, guidance such as GHS only 

has the force of law in the United States 

if adopted and implemented as a 

requirement (or regulation) under the 

authority of specific laws (See GHS 

sections 1.1.2.6, 1.1.3). As guidance, 

GHS may be used by federal agencies on 

a voluntary basis, consistent with their 

enabling statutes. The Agency did 

review and consider the GHS corrosivity 

criteria and their underlying basis in 


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12Lime continues to be used in treating POTW 

sludge (also known as biosolids) as well as in 

treatment of other wastes. Lime is used to increase 

the pH of biosolids (usually to pH 12) to control 

bacterial growth and odors. (See: EPA, 1981, NRC 

1996; Krach e.al., 2008; The Lime Association, 

2018). 

responding to the rulemaking petition. 

However, the Agency’s conclusion was 

that direct use of the GHS criteria as a 

corrosivity regulatory standard was not 

appropriate as the GHS criteria are 

intended to identify the inherent or 

intrinsic hazards of chemicals or 

chemical products (which are usually 

associated with direct exposure to 

chemicals), and do not consider how 

exposures in different settings, such as 

waste management scenarios of concern 

under RCRA, might reduce the actual 

hazard posed. GHS is also a flexible 

classification system, and a pH-based 

hazard determination can be rebutted 

and changed by other test data, whereas 

RCRA hazardous characteristic 

determinations are not rebuttable (the 

criteria are codified in regulations that 

can only be changed through 

subsequent notice and comment 

rulemakings, and there is no delisting 

program for wastes that exhibit a 

hazardous characteristic). 

The petition and petitioner comments 

on the tentative denial raised similar 

issues concerning guidance on 

corrosivity by the ILO and the Basel 

Convention on Control of 

Transboundary Movements of 

Hazardous Wastes and Their Disposal 

(Basel Convention, or Basel). As 

described in the tentative denial and the 

background document supporting the 

existing corrosivity characteristic 

regulation (EPA, 1980), the Agency 

relied in part on the 1972 ILO guidance 

on corrosivity, and also considered 

other factors related to waste 

management in establishing the 

corrosivity regulation. While petitioners 

believe the ILO guidance should be the 

only basis for the RCRA corrosivity 

definition (i.e., that the Agency should 

directly promulgate the ILO 

recommended value as the RCRA 

corrosivity regulation), consideration of 

waste management factors is 

appropriate and within the Agency’s 

discretion in establishing elements of 

national waste regulatory programs 

(RCRA section 1004(5)(B); 42 U.S.C. 

6903(5)(B)).¶ 

The Basel Convention also addresses 

the potential corrosivity of wastes, as 

described in the tentative denial. 

Petitioners asserted in the petition and 

in their response to the tentative denial 

that the Agency is obligated to adopt the 

Basel Convention corrosivity definition. 

However, Annex III of Basel relies on a 

narrative definition for identifying 

corrosive wastes, rather than directly 

relying on pH, as the petitioners suggest 

the U.S should do. Further, the United 

States is not a party to the Basel 

Convention, and so has not obligated 

itself to implement Basel Convention 

requirements. Even if the U.S. were a 

party to the Basel Convention, the 

legally binding aspects of Basel are 

focused on transboundary movements of 

waste (i.e., imports and exports), 

through a system of notice and consent 

for such shipments between 

governments. The Basel hazardous 

waste criteria apply only to such 

imports and exports of waste, and 

nations that are Basel Parties are not 

obligated to (but may, at their 

discretion) use the Basel criteria in their 

domestic waste management programs. 

Having determined that reliance on 

GHS criteria in establishing regulatory 

requirements is voluntary (consistent 

with enabling statutes), the Agency 

turns to the question about whether or 

how GHS might be an appropriate basis 

for regulations under RCRA. The basis 

for GHS criteria is identified as ‘‘the 

intrinsic hazard’’ of chemicals, and 

implies direct exposure. GHS 

determinations of intrinsic hazard do 

not consider possible material handling 

procedures that might mitigate risks or 

the potential for waste or contaminant 

release, transport and exposure. RCRA 

provides authority to regulate waste 

either due to its intrinsic hazard (where 

such hazards are of a severe and acute 

nature), or when a waste poses risk as 

a result of mismanagement. However, 

EPA’s approach is in most cases to 

regulate wastes posing risks when 

plausibly mismanaged, particularly 

where a waste does not exhibit acutely 

and highly toxic or other extremely 

hazardous properties (see Footnote 6 

and 45 FR 33105–33109, May 19, 1980). 

This means that as a practical matter, 

under RCRA most hazards are identified 

and risk is evaluated in the context of 

waste management conditions and 

practices. This was the reasoning the 

Agency used in 1980 when it 

considered both the use of lime for 

POTW sludge stabilization 12 and other 

waste treatment uses of lime, as well as 

the 1972 ILO guidance values, in 

establishing the current RCRA 

corrosivity regulatory value. In urging 

the adoption of GHS criteria as the basis 

for the corrosivity regulation, the 

petitioners are making the same 

argument as discussed elsewhere in 

today’s Notice and in the response to 

comments document: That the Agency 

should base the corrosivity regulation 

solely on assessment of the intrinsic 

hazards potentially corrosive wastes 

may pose. The Agency has instead 

determined that it is appropriate to 

make waste management considerations 

part of the basis for the corrosivity 

hazardous waste definition. 

3. The Petitioners Assert That the 

Agency Inadequately Considered 

Supporting Materials Submitted With 

the Petition, and Other Facts Cited by 

the Petition 

Petitioner comments on the tentative 

denial argue at length (pp. 1–18) that the 

Agency focused too narrowly in the 

tentative denial when considering the 

WTC disaster dust, cement kiln dust 

(CKD), and building demolition dust as 

examples of potentially corrosive dust 

that warrant regulation. Petitioners 

believe the Agency inadequately 

considered additional facts presented in 

the petition, and particularly 

information in the supporting materials 

submitted with the petition, and in so 

doing, violated its obligations under the 

Administrative Procedure Act to 

consider and respond to significant 

issues and facts brought to it during a 

rulemaking. 

The tentative denial focused on the 

WTC, CKD and building demolition 

dust discussions presented in the 

petition because the petition focused on 

these (See petition pp 28–36) in arguing 

for regulation of non-aqueous waste. 

The Agency did in fact review and 

consider the supporting material 

submitted with the petition as well as 

the petition itself and the relevant 

documents cited in petition footnotes 

(e.g., the Agency did not review the 

many news reports referenced in the 

petition, as there was no way to verify 

the information presented in them). The 

Agency also considered other 

information identified as relevant to the 

petition’s proposals, and information 

submitted by other stakeholders. In 

doing so, the Agency concluded that 

aspects of the supporting material 

submitted were not relevant in 

responding to the petitioners’ specific 

request to revise the corrosivity 

characteristic regulation, while other 

material was anecdotal or focused on 

illustrating the intrinsic hazards of some 

alkaline materials. However, as 

petitioner comments have redirected the 

Agency’s attention to the petition’s 

supporting materials (PEER comments 

pp 13–14), the Agency is presenting 

more detailed information on its 

examination and evaluation of those 

materials. 

The supporting materials sent to the 

Agency attached to the September 8, 

2011, petition consist of two documents 

previously developed by petitioner Dr. 

Jenkins (one dated 2007 and the other 


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13The petition also references numerous other 

sources of information in footnotes to the text, 

including research papers, government reports (and 

petitioner comments on a 2003 draft EPA Inspector 

General report), news reports and other material. 

EPA retrieved, reviewed and considered the most 

relevant of these and made them available to the 

public by placing them in the docket for the 

tentative denial. 

14Report Endnotes 125–129 reference EPA 

Region 6 training materials, and OSHA 

HAZWOPER regulations at 29 CFR 1910.120, 

Appendix E. 

15The pH of the vast majority of non-aqueous 

samples cannot be measured directly. Rather, most 

pH testing of solid samples involves adding some 

amount of water to the sample before testing it 

using a pH meter, as described in EPA Method 

9040B. When testing only the pH of a solid sample 

of waste, water is often added in a 1:1 ratio, as in 

EPA Method 9045C. One of Dr. Jenkins’ concerns 

relates to the addition of water to WTC dust 

samples in ratios higher than one part water to one 

part waste (i.e., addition of more than one part 

water to WTC dust samples). However, most 

investigators were evaluating the dust for 

parameters and properties beyond pH and used 

dilutions they believed appropriate for the purposes 

of their study. To the degree that investigators fully 

describe the methods of testing and the amount of 

water added to WTC dust samples in the course of 

their research, it cannot be considered that they did 

anything improper; they simply were not using the 

testing approach Dr. Jenkins believes would have 

more directly responded to her concerns. 

16For information on inhalable particulates see: 

https://www.epa.gov/pm-pollution/particulatematter-pm-basics. 

17Mixing of water with atmospheric carbon 

dioxide forms carbonic acid, which when mixed 

with the dust would have reduced the pH of the 

dust. Therefore, the pH of dust to which workers 

were exposed would have declined over time 

starting as soon as the dust was exposed to water 

(USGS 2002, American Chemical Society 2019, 

Garrabrants et.al 2004). A major rainfall event 

occurred on September 14 (Cahill, 2004). Also, a 

report by the EPA-Inspector General (2003) 

described the successful use of continuous dust 

suppression by spraying water wherever dust was 

identified at the site, as well as wetting of the 

damaged building remains before their demolition 

(see pages 34–36). The last fires at the WTC site 

were extinguished in December 2001. 

dated 2008), two pages from the 1972 

ILO guidance document, and excerpts 

from several legal declarations and 

depositions. The two documents 

developed by Dr. Jenkins provide 

additional information on her views 

about the corrosivity of materials, 

among other issues. Different parts of 

these two documents were referenced in 

the petition related to arguments the 

petition was advancing. The Agency 

reviewed these two documents in their 

entirety in the course of developing the 

tentative denial of the petition and 

focused in particular on portions of the 

supporting documents referenced by the 

petition itself.13

The first document, dated May 6, 

2007, is a report addressed to members 

of the U.S. Senate and House of 

Representatives (i.e., Congress). It 

consists of two sections, plus 342 

endnotes. As described by the 

document, Part 1 (pages 2–30) ‘‘details 

the orchestrated falsifications by EPA, 

other governmental agencies and EPA 

funded scientists of pH data (actually 

changing the numbers) as well as their 

use of laboratory methods known to preneutralize samples before testing the pH 

of WTC dust.’’ This part of the 

document criticizes the data collected 

on dust related to the WTC disaster by 

a number of research groups, including 

data and reports generated by the 

United States Geological Survey 

(USGS), researchers at Rutgers 

University, New York University (NYU), 

the Agency for Toxic Substances and 

Disease Registry (ATSDR), the EPA, the 

National Institute of Environmental 

Health Sciences (NIEHS), and the 

University of California, Davis. The 

scope of Dr. Jenkins’ assertions of WTC 

dust sample mishandling, improper 

analysis, and incorrect health 

assessments are broad. In different 

portions of this discussion, the report 

describes data as being ‘‘falsified’’ (pp. 

3, 6, 14, 17, 19), samples being 

improperly ‘‘pre-neutralized’’ before pH 

testing (pp. 11, 12, 16), use of ‘‘nonoptimal’’ testing to give ‘‘false’’ test 

results (p.22), and asserted that 

researchers made false statements about 

the significance of test results (p. 23). 

The report goes on to identify the testing 

Dr. Jenkins believes would have been 

appropriate for the dust generated by 

the collapse of the WTC towers (pp 25– 

28). The report also states that EPA OnScene Coordinators were on site on the 

day the towers were attacked and 

collapsed, and that regulations and 

guidance required them to do sampling 

to assess hazards, including pH 

testing.14 However, the Agency has been 

unable to identify such data; apparently 

such pH testing was not done, or if 

done, test results were not recorded or 

reported. 

Review of the studies about which Dr. 

Jenkins expressed concern shows that 

investigators were evaluating pH and 

many other properties of the collected 

dust samples.15 For example, Lioy 

(2002) tested for metals, asbestos, anions 

and cations, dioxins, brominated fire 

retardants, and the size and composition 

of different particulate fractions, in 

addition to pH. Plumlee et.al. (2006) 

evaluated settled dust samples collected 

outdoors (31 different locations) and 

indoors (2 locations; all but one sample 

collected by USGS on September 17 and 

18, 2001), for metals, organic chemicals, 

pH, alkalinity and specific conductance. 

Two different leaching tests were done 

to understand the chemical reaction of 

dust with water (from acidic rainfall on 

September 14, and ongoing street 

washing, dust control, or firefighting) 

and the potential for dust components 

to be absorbed by the throat and lungs 

of those exposed. In a study done by 

EPA scientists (EPA, 2002), dust 

samples were tested for physical 

properties and chemical composition, 

and were used in testing for the 

potential adverse effects of the dust on 

laboratory test animals. 

Petitioners insist that pH of the whole 

dust was the key factor investigators 

should have known to focus on 

evaluating, and also insist that dust pH 

values were higher than reported 

(because investigators did not use the 

petitioners’ preferred test method). 

These assertions disregard the fact that 

corrosive chemical burns were not 

identified among the reported injuries to 

first responders and others. They also 

disregard the variable composition and 

complexity of the dust and WTC worker 

exposures (which include building 

materials reduced to fine and coarse 

particulates, metals, a range of volatile 

and semivolatile organic chemicals and 

soot particulates from the ongoing fires) 

that investigators were trying to 

understand, as well as discounting the 

focus on public health concerns about 

exposure to fine, inhalable particulate 

matter 16 and asbestos. Petitioner 

assertions about dust pH also fail to 

account for the effect of contact with 

water on the pH of dust (from water use 

for street washing, firefighting and dust 

suppression, as well as several rainfall 

events beginning September 14), which 

would have moderated dust pH, so that 

as the dust changed, so did the 

alkalinity of exposures.17

Part 2 of the 2007 report Dr. Jenkins 

sent to the Congress (pages 31–52) 

asserts that ‘‘Long before 9/11/01—EPA 

falsifies the pH level causing chemical 

burns (irreversible tissue damage-).’’ 

This part of the report describes the 

petitioners’ concerns about the basis for 

the current corrosivity regulation. Much 

of the material in this section of the 

report was incorporated into the 

petition (see pp 6–24 of the petition) 

and the Agency reviewed and 

considered this material in developing 

the tentative denial. The issues raised 

by the petitioners in this discussion 

focus on their belief that the corrosivity 

characteristic regulations should 

consider only the inherent hazard of 

waste materials, and not consider the 

risks posed by possible exposure to 

materials when they are generated and 

managed as wastes. Petitioners believe 

consideration of any information in 

addition to assessments of intrinsic 

hazard resulted in a ‘‘falsified’’ 

corrosivity regulation. The Agency 


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18The possibility of exposures to asbestos used as 

fireproofing in parts of the WTC towers was an 

immediate and significant public health concern 

when the towers collapsed, and many studies of 

WTC dust and airborne materials focus on asbestos. 

However, as petitioners requested regulatory 

changes and materials submitted supporting this 

request do not focus on the presence of asbestos in 

air or dust samples, the Agency has not addressed 

asbestos issues in either the tentative denial or 

today’s Notice. 

19See data collected by NIH (https://disasterinfo.

nlm.nih.gov/wtc-hazards), the City of New York 9/ 

11 Health index of studies (https://www1.nyc.gov/ 

site/911health/researchers/wtc-scientificbibliography.page), the September 3, 2011 edition 

of The Lancet (Volume 378), and many other 

scientific journal publications (see Bibliography for 

the tentative denial and today’s Notice). 

believed in 1980, and continues to 

believe, that incorporation of waste 

management considerations is 

appropriate and within the Agency’s 

discretion in establishing regulations 

under RCRA (RCRA section 1004(5)(B); 

42 U.S.C. 6903(5)(B)) including for the 

corrosivity characteristic. 

The second document, also developed 

by Dr. Jenkins (dated October 13, 2008), 

is described as a supplement to the May 

6, 2007 report sent to Congress, and was 

addressed to the Federal Bureau of 

Investigation (FBI). The first section of 

the report identifies statutes petitioners 

believe may have been violated by 

EPA’s corrosivity characteristic 

regulation (see pp 2–9), based on their 

disagreement with the Agency’s basis 

for establishing the regulation. The 

second section of the report is a 

recounting of historical incidents in 

which people were injured when 

directly and purposely exposed to lime 

(pp 10–17). The third section of the 

report is generally a reiteration of 

petitioner criticisms of the basis for the 

corrosivity characteristic regulation 

taken from the 2007 document. This 

section also criticizes the Agency’s 

Report to Congress on Cement Kiln Dust 

(59 FR 709, January 6, 1994) and 

presents assertions regarding WTC dust 

evaluation. Much of the material is 

directly taken from the 2007 document 

(see pp 27–56), including repeating 

several of the graphs/tables/figures (see 

pp 11–24 of 2007 report). 

The many examples of direct 

exposure to alkaline materials described 

in the 2008 document (to the FBI) 

reiterate the petitioners’ view that the 

Agency should regulate corrosive 

materials based on assessments of the 

intrinsic or inherent hazards they may 

pose from direct exposure, rather than 

risks that might be posed in the course 

of waste management. As noted above, 

the approach advocated by the 

petitioners is used by GHS, where 

classification is intended to be based on 

the ‘‘intrinsic hazard’’ of chemicals, not 

on risk (although GHS does not rely on 

pH to define materials as corrosive if 

any other data are available; see GHS 

sections 1.1.2.6, 1.1.3.1, 3.2). Again, 

risks that might be posed in the course 

of waste management is an appropriate 

basis for the corrosivity regulation, and 

is within the Agency’s discretion in 

implementing RCRA. 

4. Petitioners Assert That Concluding 

That WTC Exposures and Injuries Are a 

RCRA Damage Incident Is Not Necessary 

To Support the Petition and Also 

Reiterate Their Assertion That WTC 

First Responder and Other Worker 

Injuries Are a Result of Exposure to 

Corrosive WTC Dust (Comments Pages 

15, 105–124).18

When the WTC towers collapsed after 

being attacked, an estimated one million 

tons of construction materials and the 

buildings’ contents were pulverized into 

dust and debris, forming a dust cloud 

that distributed the dust over a 16-acre 

area of New York City. Destruction of 

the towers also resulted in numerous 

fires, which burned for several months 

after the collapse of the towers 

(Chemical & Engineering News, 2003). 

The petition identified injuries to first 

responders and rescue and other 

workers resulting from inhalation 

exposure to airborne or settled WTC 

dust as a waste mismanagement damage 

incident that they believed supported 

the need to revise the RCRA corrosivity 

regulations. This assertion was one of 

the petitioners’ main arguments 

supporting their request for changes to 

the corrosivity regulation definition. 

The Agency discussed this issue at 

length in its tentative denial of the 

rulemaking petition. (81 FR 21302– 

21305). Specifically, the Agency made 

two main arguments concerning 

petitioner assertions that the WTC dust 

caused corrosive injuries to first 

responders and other workers at the 

WTC site. These are: (1) Because of 

limitations of the available data (i.e., the 

complexity and variability of the dust 

composition and exposure levels), it is 

not possible to establish a causal 

connection between any potential 

corrosive properties of the dust and the 

injuries to those exposed; and (2) the 

injuries documented to have occurred in 

the WTC first responders and others 

exposed to potentially harmful dust, 

while serious, are not corrosive injuries 

as described in the 1980 background 

document (EPA 1980) and which the 

Agency sought to prevent in 

promulgating the RCRA corrosivity 

regulation. 

While the petition asserted that the 

WTC exposures are a corrosive waste 

damage case, petitioner comments 

submitted in response to the tentative 

denial seem to be inconsistent as to the 

relevance of the WTC disaster and 

exposure of workers and others to the 

resulting dust. They assert that 

identification of WTC worker injuries as 

corrosive injuries is not a critical aspect 

of their argument supporting a change to 

the corrosivity regulations, but later in 

their comments reiterate arguments 

from the petition that WTC worker 

injuries are corrosive injuries. 

Petitioner comments first assert that it 

is ‘‘[i]rrelevant whether WTC dust, 

caused corrosive injuries. . .’’ because 

they believe that ‘‘[o]ther physical forms 

of corrosives . . . whether pH 11.5 and 

above or pH 12.5 and above have caused 

injuries’’ (see page 15 of petitioners’ 

comments). Petitioner comments then 

reference the materials submitted with 

and in support of the petition (i.e., the 

reports developed by Dr. Jenkins from 

2007 and 2008 described above) as 

adequately supporting the petitioned 

changes to the corrosivity regulation, 

regardless of conclusions about the 

effects of WTC dust. Other parts of 

petitioner comments on the tentative 

denial repeat the petition’s assertions 

that corrosive properties of the WTC 

dust caused the injuries (particularly 

respiratory injuries), reported by first 

responders and other workers 

subsequent to their work on the site 

(see, e.g., pp 108–118 of petitioners’ 

comments). As petitioner comments 

reiterate their earlier assertions about 

the corrosive properties of the WTC 

dust, EPA is responding in today’s 

Notice to those assertions, to make clear 

its conclusion that information 

concerning WTC dust and worker 

exposures and injuries cited by the 

petitioners does not support the 

petitioners’ overall request. 

While the considerable amount of 

research on WTC worker health makes 

clear that injuries to WTC workers 

resulted from their exposure to the WTC 

dust,19 the existing data do not support 

attributing the injuries to possible 

corrosive properties of the dust. As 

described in the tentative denial, and 

elsewhere in today’s Notice, it is not 

possible to establish a causal connection 

between the potential corrosive 

properties of the dust and the resultant 

injuries to those exposed for two 

reasons. First as described in the 


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20 In many industrial settings, the same or very 

similar waste is generated on an ongoing or 

repeated basis because of the ongoing production of 

particular products. While waste varies, the wastes 

generated over time by a particular industrial 

process often have some consistency and are 

generated under conditions defined by the 

production process, making it easier to identify and 

assess hazards that may be posed by the waste. 

However, the WTC dust and debris were both 

unique to the events of 9/11/2001, had a complex 

and varying composition at different WTC locations 

and over time, and workers and others were 

exposed to it in a range of different settings, 

conditions, and time periods. Rainfall on 9/14/ 

2001, and other days also altered the properties of 

the settled dust through carbonation reactions 

(reducing its pH), as did water used for firefighting 

and dust suppression. NYC rainfall in 2001 had an 

average pH of 4.4, which also contributed to 

neutralizing the dust (National Atmospheric 

Deposition Program, 2001). Workers were also 

exposed to smoke from the fires, the last of which 

was not extinguished until December of 2001. 

Further, there are not reliable records of where at 

the WTC site particular workers worked, the days 

they worked at different locations, their duration of 

work each day, and the composition of dust at those 

parts of the WTC site over time. These factors, in 

combination with the fact of incomplete exposure 

data make it impossible to identify causal 

relationships between particular exposures and 

adverse effects beyond the broad conclusion that 

many workers exposed to the dust and other 

pollutants present have experienced respiratory 

injuries and other adverse effects related to their 

exposure. 

21Reviews of compiled data on compounds in the 

settled dust and/or air samples found up to 287 

different chemicals or chemical groups (EPA 2003), 

or up to 352 different materials and chemicals 

(WTC Health Program 2018). Lioy (2006) identified 

a sequence of 4 distinct exposure categories over 

time, each with somewhat different mixtures of 

pollutants, starting with collapse of the towers 

through December 29, 2001, plus one additional 

category for indoor exposures. They also identified 

the lack of an analysis of patterns of population 

exposure, and failure to test for airborne gases and 

coarse particulates in the first hours following 

collapse as significant data gaps that preclude 

quantitative exposure characterizations for most 

people. 

22The National Atmospheric Deposition Program 

2001 Annual Report identifies rainfall in the NYC 

area to have a pH of approximately 4.4. A pH of 

7 is neutral, and values below 7.0 are acidic, while 

values above 7.0 are basic, or alkaline. Also, 

NOAA’s ‘‘Records of Climatological Observations’’ 

recorded rainfall of 1.9 inches in NY Central Park 

on September 14, 2001, three days after the disaster. 

https://www.ncdc.noaa.gov/cdo-web/search. 

Accessed July 15, 2020. 

23Also identified in the three samples were: 24 

metals, seven pesticides, PCBs, 40 different PAHs, 

82 semi-volatile organic compounds, 17 PCCDs and 

PCDFs, and 6 PBDE flame retardant chemicals. 

24The 9/11 WTC Health Program is administered 

by CDC/NIOSH. 

25The petition and petitioner comments on the 

Tentative Denial both reference calcium oxide as 

posing a significant hazard. While Portland cement 

powder contains calcium oxide, this compound is 

converted to calcium hydroxide and other calcium 

compounds in hardened concrete when water is 

mixed with the cement powder. The hydration 

reactions of cement powder give the resulting 

concrete its strength and hardness. (Northwestern 

U. website and U. Illinois website). Petitioners 

hypothesize the presence of calcium oxide in the 

WTC dust (see petition page 27), although studies 

of WTC dust fail to identify it as present, and 

petitioners identify no studies presenting data 

showing calcium oxide as present in WTC dust 

samples. Even if some calcium oxide was present 

in the dust when the towers collapsed, it would 

have combined with ambient water vapor (i.e., 

humidity) or water from rainfall, fire-fighting or 

dust suppression, and would be unlikely to be 

present in the dust for more than a day or two, if 

ever. 

26NIOSH is part of the U.S. Centers for Disease 

Control and Prevention (CDC), in the U.S. 

Department of Health and Human Services. NIOSH 

is a research agency focused on the study of worker 

safety and health. Among other activities, NIOSH 

develops recommended exposure limits (RELs) for 

hazardous substances or conditions in the 

workplace (See NIOSH Pocket Guide to Chemical 

Hazards, at: https://www.cdc.gov/niosh/npg/ 

default.html). 

27OSHA is the Occupational Safety and Health 

Administration, which is part of the U.S. 

Department of Labor. Among other activities, OSHA 

develops regulations to establish permissible 

exposure levels (PELs) for worker exposure to 

airborne chemicals in the workplace (See: 29 CFR 

1910.1000). 

tentative denial, WTC first responders, 

site workers, and others were exposed 

or potentially exposed, from 9/11/2001 

until the clean-up concluded (January 

2002), to a complex and changing 

ambient atmosphere that included many 

chemicals and particulate matter, as 

represented by evaluation of settled dust 

samples as well as ambient air test 

results, and which was unique to the 

WTC debris and dust.20 Attribution of 

the WTC first responder and worker 

injuries to a single cause or property of 

the WTC dust, such as its potential 

corrosivity, is confounded by the wide 

range and varying concentrations of 

numerous compounds found in air 

samples or settled WTC dust, and the 

changes in dust properties (particularly 

pH) over time. 21 In one data set, the pH 

values reported for the outdoor dust 

ranged from pH 8.22 to 12.04 for 

samples collected at 33 locations at the 

WTC site on September 17 and 18, 2001 

(Plumlee, et al. 2006). In 22 of these 

samples there were measurable amounts 

of 39 different metals and inorganics, 

and up to 22.8% organic compounds. 

These samples also contained a range of 

particulates, including fine glass fibers 

and fine and coarse particulates to 

which workers were potentially exposed 

at different locations around the site at 

different times, as well as being exposed 

to the toxic metals and organics. The pH 

of the tested dust would have declined 

(become more neutral) over the several 

months workers were at the site, due to 

carbonation reactions of some dust 

constituents with water and 

atmospheric carbon dioxide (as well as 

the acidic nature of rainfall).22 In 

another study, test results for three 

samples of settled dust collected on 

September 16 and 17, 2001 showed pH 

values of 9.2–11.5, and that 40% of the 

dust consisted of fine glass fibers, 9%– 

20% was cellulose, and 37%–50% was 

non-fiber material including 

construction debris (concrete, gypsum) 

and inorganic and organic chemicals 

(Lioy, et.al. 2002).23 Several rainfall 

events starting on September 14 and 

through the first half of October, as well 

as use of water for firefighting and dust 

control at the site would have washed 

out many soluble inorganic constituents 

from the outdoor dust and also changed 

its pH (Lioy, 2002; Plumlee, 2006, and 

Cahill, 2004). A report by the 9/11 WTC 

Health Program 24 presented an 

inventory of ‘‘9/11 Agents’’ that were 

identified that may have posed hazards 

at the WTC site, the Pentagon crash site, 

or the Shanksville, PA crash site (WTC 

Health Program 2018; https://

wwwn.cdc.gov/ResearchGateway/ 

Content/pdfs/Development_of_the_

Inventory_of_9-11_Agents_

20180717.pdf). The inventory includes 

352 chemicals or other materials (e.g., 

glass fibers, PM2.5). In addition, the 9/11 

Agents inventory does not identify pH 

as a stressor, and while it does include 

some alkaline chemicals cited by 

petitioners as posing hazards (i.e., 

calcium hydroxide and calcium sulfate), 

it does not include calcium oxide, a 

compound petitioners repeatedly cite as 

a key compound of concern.25

The National Institute for 

Occupational Safety and Health 26

(NIOSH) conducted ambient air and 

worker breathing zone monitoring for a 

range of possible air pollutants from 

September 18–October 4, 2001 (CDC, 

2002). Samples were collected in areas 

immediately adjacent to the debris pile, 

and for individuals actively involved in 

rescue efforts or working in the vicinity 

of the debris pile. These samples were 

found to contain measurable amounts of 

asbestos, carbon monoxide (CO), diesel 

exhaust, hydrogen sulfide (H2S), 

inorganic acids, mercury and other 

metals, polycyclic aromatic 

hydrocarbons (PAHs) and volatile 

hydrocarbons, and total and respirable 

particulates. Sulfuric acid was detected 

in 26 of 27 samples, with all levels less 

than the NIOSH recommended exposure 

level (REL) and OSHA permissible 

exposure level (PEL).27 Mercury and 

other metals were well below the 

relevant NIOSH and OSHA standards, 

with the exception of exposure of one 

worker using a cutting torch exposed to 

cadmium at levels exceeding the OSHA 

PEL. PAHs were found only at trace 

levels, and benzene was the only 

volatile organic found in 2 of 76 

samples at levels exceeding the NIOSH 

REL, but below the OSHA PEL. For total 

particulates, values ranged from nonVerDate Sep<11>2014 16:05 Jun 14, 2021 Jkt 253001 PO 00000 Frm 00046 Fmt 4700 Sfmt 4700 E:\FR\FM\15JNR1.SGM 15JNR1

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28The dose, or exposure levels in this study were 

based on estimates of the amount of time and 

distance from the towers individuals reported on 

the day of the tower’s collapse (for acute exposure) 

and the thickness of the dust layer in homes, 

cleaning activity, and the amount of time spent in 

different settings where dust was found. As this was 

a retrospective study, no testing of dust 

composition or properties was conducted. 

29See: Guidelines for Ensuring and Maximizing 

the Quality, Objectivity, Utility and Integrity of 

Information Disseminated by the Environmental 

Protection Agency, EPA/260R–02–008, October 

2002. 

detect to 2.3 mg/m3, with all samples 

below the NIOSH REL for Portland 

cement (10 mg/m3). Respirable 

particulates ranged up to 0.32 mg/m3, 

well below the NIOSH REL for Portland 

cement (5 mg/m3). These data do not 

support petition assertions that both 

large and small airborne particulates 

would have posed corrosive hazards to 

exposed workers, as all these data show 

that WTC worker breathing zone 

concentrations of dust were 

substantially below both regulatory and 

health recommended concentration 

values for cement dust, which 

petitioners focus on as presenting the 

greatest hazards. Maslow et al. (2012) studied the 

health impacts of different exposures to 

local residents or individuals (n=785) 

who worked in buildings near the WTC 

site, but which were not severely 

damaged. They found dose-related 

pulmonary function decrements 

associated with acute exposure to the 

WTC dust (exposure on the day the 

buildings collapsed) and to chronic 

exposure (from indoor dust).28 Lower 

respiratory symptoms were evaluated 

using spirometry testing of forced 

expiratory volume and other measures, 

but no corrosive injuries were reported. 

A study of children enrolled in the WTC 

Health Registry initially found a 

significant increase in new asthma cases 

associated with exposure to the dust 

cloud on 9/11/2001 (Thomas, et al., 

2008), and later found that younger 

children exposed to the dust cloud on 

9/11/2001 had a significant increase in 

respiratory symptoms while older 

children showed a non-significant 

increase. No corrosive injuries were 

reported to have occurred in the 

children studied. Brackbill et al., (2006) 

reported skin rash/irritation in 4% 

(AOR1.7; p<0.05) of adult survivors of 

collapsed or heavily damaged buildings 

who were caught in the dust and debris 

cloud, excluding rescue/recovery 

workers (World Trade Center Health 

Registry (WTCHR) data; n=8418). Perritt 

et al. (2011) reported skin conditions in 

4% of WTC workers/volunteers 

(n=7,810), but did not clearly identify 

the types of skin conditions reported 

(some may have been traumatic injuries 

such as abrasions, blisters and 

contusions). They also reported eye 

ailments/illness in 9%, and traumatic 

eye injuries in 6% of the study 

population, also without a detailed 

description of the injuries. Huang et al., 

(2012) found skin irritation/rashes in 

12% of area residents and rescue/ 

recovery workers 3 years after 9/11, and 

in 6% after 6 years of WTCHR 

participants (n=42,025). None of these 

studies identified serious skin injuries 

occuring in the groups studied. 

Lippmann et al. (2015) reviewed and reevaluated many of the previously 

published test data and reports of 

adverse effects in WTC first responders, 

worker and others. They hypothesized 

that the unique conditions caused by 

the WTC tower collapse resulted in 

greater inhalation of large and coarse 

particles (consisting of concrete and 

gypsum dust, and synthetic vitreous 

fibers) than would be expected to occur, 

and that these larger irritant particles 

are likely to have caused many of the 

respiratory injuries in exposed WTC 

workers and others. However, the 

existing data are inadequate to establish 

the air concentrations of dust 

components and pH of the material they 

believe are responsible for the 

respiratory injuries identified in the 

WTC population, so no quantitative 

correlations between exposures and 

adverse effects can be assessed or 

identified. Further, as discussed above, 

these injuries, while serious, are not 

consistent with the gross tissue injuries 

the Agency sought to prevent in 

regulating some wastes as hazardous 

due to their corrosive properties. 

Finally, the composition of the large 

particle dust Lippmann believes to be 

the cause of WTC worker respiratory 

injuries appears to be unique to the 

WTC disaster, making the WTC 

circumstance a poor example of the 

potential hazards indicative of and 

associated with nationwide waste 

management practices. In their comments (pp. 105–107), 

petitioners repeat the petition’s 

criticisms of data published on the 

composition and properties of WTC 

dust (particularly its pH) to which 

workers were or may have been 

exposed, and criticize the Agency’s 

reliance on these data in the tentative 

denial. The petitioners’ comments argue 

that in relying on these data as part of 

the basis of the tentative denial, the 

Agency fails to adhere to EPA data 

quality and integrity guidance.29 The 

tentative denial and today’s Notice 

identify the sources of all data on WTC 

dust and aerosols that have been relied 

on in evaluating and responding to the 

Petition and comments on the tentative 

denial. Those information sources 

describe the manner in which dust and 

other samples were collected, the dates 

and locations for data collection, sample 

handling procedures, and sample testing 

methods. As discussed above, 

investigators were evaluating a number 

of different properties of the dust and 

used tests they believed were suited to 

assessing the dust properties they were 

interested in investigating. The dust pH 

was tested for many samples, using 

several different approaches, although 

no investigators used the petitioners’ 

preferred test, EPA Method 9045. 

Petitioners believe EPA’s reliance on pH 

data collected using tests other than 

Method 9045 is inappropriate and 

violates the Agency’s data quality 

policies and obligations. However, the 

pH data the Agency has relied on is the 

WTC dust pH data that exist; there are 

no WTC dust pH data developed using 

Method 9045 that the Agency is aware 

of, and the petitioners have not 

identified nor provided the Agency with 

any WTC dust pH data collected using 

Method 9045. The Agency has therefore 

relied on the existing data that it 

believes are most relevant for evaluating 

WTC first responder and rescue/ 

recovery/debris removal worker and 

other exposures, despite any 

shortcomings. The petitioners’ 

assertions about the results that may 

have been produced by evaluating the 

dust using Method 9045 cannot 

substitute for the data that do exist. 

Because the different investigators 

describe their methods and approaches 

for evaluating the dust and potential 

exposures in published articles (or in 

some instances, on government 

websites) presenting the results of 

research, the test results and their 

relevance to the questions petitioners 

raise can be evaluated. Therefore, while 

not the testing petitioners would have 

recommended, petitioner assertions that 

these data are somehow fraudulent, and 

that the Agency has used them 

inappropriately, are baseless. 

The tentative denial also described 

the types of injuries WTC workers 

exposed to the dust have experienced 

(81 FR 21303; April 11, 2016). One of 

the most frequent types of injury 

identified in WTC workers are different 

types of chronic decrements in 

respiratory capacity. However, as 

discussed in the tentative denial, these 

injuries, while quite serious in many 

cases, are different from the injuries the 

Agency sought to prevent in 

establishing the corrosivity 

characteristic regulation, and the 


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30 GHS relies on the same type of serious injury 

for defining corrosive materials as does the 1980 

Corrosivity background document. GHS Chapter 

3.2.1.1 states: ‘‘Skin corrosion refers to the 

production of irreversible damage to the skin; 

namely, visible necrosis through the epidermis and 

into the dermis occurring after exposure to a 

substance or mixture.’’ 

31While all exposures to WTC dust may have 

posed some hazard, only exposures resulting from 

waste or waste management can be controlled using 

RCRA regulations. To be considered a RCRA solid 

waste a material must be disposed of or abandoned, 

as described at 40 CFR 260.10–261.2. Some of the 

highest exposures to WTC dust, such as on the day 

of the disaster, are clearly not related to waste or 

waste management activities. 

32 In a 2011 study, Ekenga, et. al., reported that 

4257 human remains, and 54,000 personal items 

were recovered from the dust and debris through 

the screening done at the landfill site. The Agency 

has never considered human remains or material 

that contains human remains to be waste. Also, 

material that has ongoing potential use as evidence 

in legal proceedings is not considered waste until 

such proceedings conclude and the material is no 

longer needed. See: 70 FR 74881, December 16, 

2005, and EPA policy memos dated September 5, 

1989; May 9, 1990; January 15, 2010, and August 

11, 1988. 

available data do not establish a causal 

connection between dust pH and these 

injuries. Petitioners have in their 

comments identified no studies 

reporting gross corrosive injuries (as 

described in the 1980 corrosivity 

regulation background document) in 

WTC first responders, workers at the 

site, or others. (See petitioner comments 

pp. 108–115) 

Petitioners further criticize the 

Agency as conducting a biased and 

incomplete review of the available data. 

The Agency conducted an extensive 

review of petitioner submitted data as 

well as additional relevant materials 

identified by the Agency (approximately 

400 references were placed in the public 

docket supporting the tentative denial), 

and additional studies have been 

reviewed in the course of developing 

today’s Notice and response to 

comments document. As the published 

scientific literature on the WTC disaster 

is voluminous, comprising hundreds of 

studies addressing a range of topics, the 

Agency has focused its efforts on data it 

believes to be most relevant to assessing 

the petitioners’ requested regulatory 

revisions, including several studies 

noted in petitioner comments. This 

review has included primarily data on 

WTC dust composition and properties 

(both as settled dust and as airborne 

material) and data on the adverse health 

effects experienced by first responders, 

site clean-up workers, and others 

potentially exposed to the dust and 

other pollutants present at the WTC site. 

Petitioners also argue that in 

responding to the petition, the Agency 

did not adequately consider its own 

guidance on evaluating the hazards that 

might result from exposure to more than 

one chemical. Developing a 

comprehensive and detailed 

understanding of the adverse health 

effects suffered by first responders, WTC 

workers and others resulting from their 

exposures at the WTC site is important 

work that is ongoing by many 

researchers, and parts of the Agency’s 

technical guidance on evaluating 

multiple or cumulative exposures may 

be helpful in these efforts. However, the 

Agency’s purpose in issuing the 

tentative denial and today’s Notice is 

much narrower. In responding to the 

petitioners’ requests for specific 

revisions to the RCRA corrosivity 

characteristic regulation, the Agency’s 

purpose in examining WTC exposures 

and the resulting adverse health effects 

is to understand whether corrosive 

injuries resulted from dust or other 

exposures related to waste management 

at the WTC site, and whether revisions 

to the corrosivity regulation could, in 

some future incident that might result in 

similar exposures, prevent corrosive 

injuries. Petitioners discussed this 

question in both the petition and in 

their comments (pp. 96–97) on the 

Agency’s tentative denial of the petition. 

The Agency examined this question 

extensively in the tentative denial and 

concluded that the injuries suffered 

were not corrosive injuries as that term 

has been used in the background 

support materials for the RCRA 

corrosivity regulation (81 FR 21302– 

21304; April 11, 2016).30 In addition, 

the petition did not identify how 

revised RCRA corrosivity regulations 

could change waste management 

practices to prevent injuries in some 

future incident that could cause 

exposures similar to those at the WTC 

disaster site. In response to comments 

on the tentative denial submitted by 

petitioners and others, the Agency 

examines these issues again in today’s 

Notice and comes to the same 

conclusions as in the tentative denial. 

Further, petitioners themselves 

acknowledge that establishing that WTC 

first responders, workers and others 

suffered corrosive injuries is not a 

critical part of their overall argument for 

revising the corrosivity regulation (See 

petitioners’ comments p. 15). 

5. The Petitioners Assert That EPA 

Misunderstands the Applicability of 

RCRA Regulations to the WTC Dust and 

Debris (Petition pp 67–70) 

In comments on the tentative denial, 

petitioners state that ‘‘EPA was 

contending that there were no ‘‘solid 

wastes’’ or ‘‘hazardous wastes’’ from the 

WTC that would be subject to any RCRA 

regulations.’’ The petitioners’ discussion 

goes on to reference the discussion on 

pages 83 FR 21304–21305 of the 

tentative denial and concludes that: 

‘‘Clearly, the debris and dust from the 

WTC collapse met the definition of solid 

waste under RCRA’’. 

The discussion of RCRA applicability 

in the tentative denial responded to the 

petition’s failure to describe how the 

proposed changes to the RCRA 

corrosivity regulation could have 

reduced the hazards to the WTC first 

responders and other workers, the local 

residents, and others. The tentative 

denial did not imply that the Agency 

believed no waste management occurred 

in the course of clearing and removing 

debris from the site and transporting 

and landfilling it at the Fresh Kills 

landfill. 

However, the available data do not 

lend themself to identifying waste and 

waste management related exposures to 

workers, as distinct from other 

exposures. The petition’s discussion of 

WTC exposures comingled all potential 

exposures to all potentially exposed 

people in all settings and did not 

attempt to distinguish worker exposures 

that may have been related to waste 

management activities from exposures 

resulting from other activities or in 

other settings. This issue is important in 

considering the petitioners’ requests, as 

RCRA regulations can only apply to 

waste and waste management 

activities.31 Further, there are situations 

in which determining the RCRA 

regulatory status of a material (i.e., 

whether it is a waste, and if it is a waste, 

whether it is also a hazardous waste) 

requires careful consideration, and the 

events at the WTC site represent such a 

case. 

The WTC disaster presented a unique 

and complex set of worker activities and 

potential exposures. At different (and 

frequently overlapping) times, first 

responders, volunteers and hired 

contractor workers cleared debris for 

transport to the Fresh Kills landfill in 

the course of searching for survivors and 

later, to recover human remains. While 

collection, loading, transport and 

deposit of WTC dust and debris at the 

landfill would normally be considered 

waste disposal operations, this case may 

be more complex. A primary activity at 

the Fresh Kills landfill was sorting/ 

screening and examining all of the dust 

and loose debris sent there, to identify 

and recover any human remains or 

personal property of victims. The 

sorting/screening work was also 

directed at recovering parts of the 

airliners used to destroy the towers for 

possible future use as evidence in a trial 

or legal proceeding.32 Because of these 


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33These two studies of workers transporting and 

handling debris at the landfill did not present any 

quantitative data on debris composition and 

properties, nor possible exposures from these 

operations, so it is not possible to identify hazards 

that might have been mitigated by RCRA 

regulations, where they might have been applicable. 34Petitioners’ requested revisions to the 

corrosivity characteristic regulation could 

potentially apply to pieces of broken concrete. 

35The Administrative Procedure Act requires the 

Agency to consider all public comments on the 

Tentative Denial. The industry stakeholders 

submitted the same information on possible 

impacts to industries referenced in the tentative 

denial as comments on the tentative denial, so the 

Agency is obligated to consider them here. 

Although the Agency considered these comments 

EPA did not fact-check or attempt to verify the 

specific industry estimates because they were not 

part of the basis for EPA’s decision-making. The 

Agency did not develop its own assessment of 

potential impacts of revising the corrosivity 

regulation, as the available data on exposures and 

health effects did not support the need to revise the 

RCRA corrosivity regulations. 

36See, Utility Solid Waste Activities Group v. 

EPA, 901 F.3d 414 (D.C. Cir. 2018). 

37As discussed in the tentative denial (81 FR 

21306, April 11, 2016) CKD is an air pollution 

control residue from cement manufacturing 

activities, for which EPA has made a RCRA status 

determination. See 60 FR 7366, February 7, 1995 

and EPA 1997 (Ref: Population risks from indirect 

exposure pathways and population effects from 

exposure to airborne particles from cement kiln 

dust waste, EPA, August 1997 Draft). 

ongoing recovery operations, loose 

debris at the landfill would likely not be 

considered discarded, and so waste, 

until the recovery operations were 

completed, on July 26, 2002 (Ekenga et 

al., 2011; Cone et al., 2016).33 The other 

major types of debris cleared from the 

WTC site were large chunks of 

concrete,34 and the steel beams that 

supported the buildings. The pieces of 

concrete would generally have been 

considered waste when being handled 

for transport to the landfill (although 

some may have been recycled), and 

many of the steel beams were sold as 

scrap metal for recycling (https://

www.chicagotribune.com/news/ct-xpm2002-01-27-0201270268-story.html; 

https://edition.cnn.com/2002/WORLD/ 

asiapcf/east/01/23/china.wtcsteel/). 

The overlapping nature of rescue, 

recovery, firefighting, demolition and 

debris removal activities at the WTC 

disaster site, and screening for 

recoverable materials at the landfill, 

makes it very difficult to distinguish 

between conventional waste 

management-related activities and their 

potentially associated exposures, and 

exposures unrelated to waste 

management, and therefore to identify 

hazards attributable to waste and waste 

management activities. It remains 

unclear whether or how the RCRA 

corrosivity regulation revisions sought 

by the petitioners may have in this case 

(or could in some future case that may 

be similar) prevented the worker (and 

other) exposures and injuries, nor do the 

petitioners clarify this nexus in their 

petition or their comments on the 

tentative denial. 

6. The Petitioners Assert That the 

Agency Improperly Considered the 

Potential Impact of the Requested 

Corrosivity Characteristic Revisions 

Petitioner comments assert that in 

developing the tentative denial, the 

Agency improperly considered 

information provided by industry 

stakeholders on the possible impacts of 

changing the corrosivity regulation 

(petitioner comments pp 39–48). While 

the tentative denial was being 

developed, industry stakeholders met 

with and submitted to the Agency 

information describing their concerns 

about the regulatory changes sought by 

the petition. Part of the industry 

submission presented estimates of the 

potential impact of the regulatory 

revisions being sought by the petitioners 

on different industries. The Agency 

reviewed and placed these submissions, 

as well as other communications with 

the industry stakeholders, in the public 

docket supporting the tentative denial. 

The tentative denial noted that the 

industry estimates were in the docket, 

and that the Agency did consider them 

but did not evaluate or attempt to verify 

them (See 81 FR 21306, April 11, 

2016).35

Petitioner comments assert that the 

Agency significantly and improperly 

relied on the industry impact and cost 

estimates in developing the tentative 

denial and argue that RCRA does not 

allow the consideration of economic 

impacts in developing RCRA 

regulations.36 However, the rationale for 

tentatively denying the petitioners’ 

requests is discussed extensively in the 

tentative denial, and the tentative denial 

is not based on the potential economic 

impacts of the petitioners’ proposals. 

Rather, the discussion in the tentative 

denial focuses on evaluating the 

available data on exposures to and 

adverse effects on workers exposed to 

materials the petitioners identified as 

being of concern and as illustrating the 

need for revisions to the RCRA 

corrosivity regulations. It does not 

reference the industry estimates of 

possible economic impacts from a 

regulatory change. The key data the 

Agency considered in coming to its 

conclusions include the properties of 

and exposures to dust at the WTC 

disaster site, cement manufacturing 

facilities, and building demolition 

events; the type and severity of adverse 

health effects attributable to these 

exposures; and consideration of whether 

the materials were wastes under RCRA. 

As discussed above, the adverse effects 

associated with these exposures were 

not corrosive injuries of the type or 

severity the Agency sought to prevent in 

establishing the corrosivity 

characteristic regulations. At the WTC 

site, the properties of the dust to which 

workers may have been exposed was 

also of varying composition and the pH 

of the dust varied at different parts of 

the site and changed over time with 

exposure to water and ambient air. Also, 

many WTC dust measurements showed 

pH values less than pH 11, and so these 

data did not support a change in the 

regulatory pH value to 11.5. 

The Agency has separately assessed 

the hazards of CKD, and despite its high 

pH (pH 10–13), did not find corrosive 

injury to potentially exposed workers.37

The Agency further identified a number 

of studies of cement plant workers, 

including two reviews of these studies. 

In 2005, the United Kingdom Health 

and Safety Executive published a 

Hazard Assessment Document focused 

on Portland cement dust exposures that 

reviewed 15 studies of exposures to and 

adverse health effects occurring in 

cement plant workers. Fell and Nordby 

(2017) conducted a systematic literature 

review that identified 26 research 

publications focused on cement plant 

exposures and non-malignant 

respiratory effects. While some adverse 

effects of exposure were identified, 

neither of these reviews identified 

corrosive injuries among the exposed 

workers. These studies do not 

distinguish between production and 

waste management-related exposures at 

the cement plants; however, CKD and 

cement are very similar in composition, 

and some cement plant worker 

exposures would have included CKD 

handling and management. Also, many 

of the reviewed studies were of cement 

production outside the U.S., where 

worker safety protections may be less 

stringent, and exposures may have been 

higher than is typical in the U.S. The 

investigators presenting these studies 

conducted medical examinations of the 

exposed workers to identify adverse 

health effects that may be associated 

with their workplace exposures. The 

lack of corrosive injuries in these 

exposed worker populations indicates 

that the CKD and cement dust exposures 

do not result in corrosive injuries, and 

so do not support a need to revise the 

RCRA corrosivity regulation. These 

reviews and many of the publications 

reviewed are discussed in greater detail 


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38The agency also reviewed state waste 

regulations that existed in 1980 when developing 

the existing corrosivity regulation. Of the 11 states 

that already had waste corrosivity regulations, eight 

used pH 12 as their regulatory value, one used pH 

11, and two used other types of testing to identify 

corrosive hazardous waste. (EPA 1980, PP A1–A2.) 

39Non-aqueous corrosive wastes were formerly 

Rhode Island Hazardous Waste R004. The R004 

designation is identified as ‘‘reserved’’ in Rhode 

Island’s current regulations (250–RICR–140–10–1). 

40See California Health and Safety Code Sec. 

25143.8. 

in the response to comments document 

accompanying today’s Notice. 

Data from instances of dust exposure 

resulting from building demolitions 

identified by petitioners may have 

established that there have been 

exposures in these settings, but it did 

not identify any corrosive injuries in 

people exposed. Further, these 

examples pose the question of 

distinguishing situations and hazards 

that might involve waste or waste 

handling (which may be subject to 

RCRA), from materials, activity or 

hazards not related to waste or waste 

management. The information available 

to the Agency in this case is not 

adequate to distinguish waste-related 

exposures from other exposures, 

particularly for the WTC and building 

demolition exposures; nor do 

petitioners make a distinction between 

waste-related and non-waste exposures 

in the petition or their comments on the 

tentative denial. Because the available 

data did not identify corrosive injuries 

resulting from dust exposure, including 

dust exhibiting pH values between 11.5 

and 12.5, and were not adequate to 

identify waste-management related 

exposures (as distinct from other 

exposures), the Agency concluded that 

the regulatory revisions requested by the 

petitioners were not warranted. 

7. Other Petitioner Comments 

The petitioners also expressed 

concern that the Agency’s tentative 

denial inadequately considered 

materials on other possible corrosivity 

damage cases and the corrosivity 

regulations of several states that differ 

from the federal regulations (state waste 

management requirements may be more 

stringent that the federal requirements). 

The Agency did identify information on 

these two topics in the course of 

developing the tentative denial, and this 

information was placed in the public 

docket. However, these issues were not 

discussed in the tentative denial 

because the Agency concluded that the 

available information did not strongly 

argue for either changing or not 

changing the corrosivity regulation. In 

response to petitioner concerns, the 

Agency’s assessment of the materials 

relating to these two issues is below. 

As part of assessing the petition, EPA 

hired a consultant to identify and 

develop a report on any environmental 

damage cases, or incidents, potentially 

caused by corrosive waste 

mismanagement that have occurred 

since the corrosivity regulation was 

established. The resulting information 

was placed in the docket supporting the 

tentative denial. Of the 21 possible 

damage incidents identified by the 

contractor, one was the WTC site, which 

is addressed extensively elsewhere in 

this Notice, and four identified acids 

only or no corrosive material. Of the 

remaining 16 incidents, pH data were 

reported for eight, with four showing pH 

values above 12.5, two reported values 

less than pH 11.5, and three reported 

data between pH 11.5 and 12. At one 

site without pH data, some amount of 

sodium hydroxide was reported, which 

would potentially be a newly regulated 

hazardous waste under the petitioners’ 

proposals. CKD mismanagement over 

the period 1984–1993 was identified as 

the cause of environmental damage at 

nine of the 16 incidents identified, all 

of which were reviewed in the 1994 

CKD Report to Congress (see: 59 FR 709, 

January 6, 1994 and Tables 5–2 and 

5–3 of the report). For seven of these, 

data ranging from pH 11.0–13.6 were 

reported. None of the incidents reported 

worker or other injuries either before or 

during remediation. 

These incidents illustrate the fact that 

potentially corrosive wastes have in the 

past, and may potentially in the future, 

be mismanaged. However, when 

considered together, these incidents do 

not clearly argue either for or against 

revision of the current corrosivity 

regulation. The wastes at several sites 

had pH values less than the petitioners’ 

requested value of pH 11.5 (and so 

would not be regulated under the 

proposed revisions), several others 

reported pH values above the current 

regulatory standard (and were aqueous 

wastes), and so were already regulated 

as RCRA corrosive hazardous waste. 

Wastes at the three sites with pH 

between these values would be newly 

regulated under the petitioners’ 

proposed revisions. Two of these sites 

had leachate or ponded water 

contaminated with CKD, and the third 

was a drum reconditioner site. 

Petitioners comments also identify a 

National Priorities List (NPL or 

Superfund) site not considered in the 

tentative denial, where caustic soda 

(sodium hydroxide) and hydrofluoric 

acid were found to be mishandled by 

the state of New Hampshire (at the 

Kearsarge Metallurgical Corp site; EPA, 

1990). Significant amounts of these 

materials were removed from the site 

before listing on the NPL, although an 

unspecified amount of potentially 

corrosive material was found in waste 

piles and in drums buried under the 

waste piles. However, the Record of 

Decision (ROD) does not provide 

enough detail to understand the 

relevance of this incident to the 

petitioners’ concerns. No pH testing is 

reported in the ROD, and while some of 

the material was identified as being 

solid, other material was liquid. No 

injuries to workers or others were 

reported. 

Petitioners also raise a concern that 

the tentative denial did not specifically 

address the several states that have 

waste corrosivity regulations that are 

more stringent or broader in scope than 

the federal regulations, although 

materials related to these state programs 

were included in the rulemaking 

docket.38 Under RCRA, states may be 

authorized to implement the federal 

hazardous waste regulatory program 

within their state, and most states have 

sought and received such authorization 

(RCRA 3006(b)). States are also allowed 

to set more stringent regulatory 

standards for wastes generated or 

managed in their state, and a number of 

states have broadened the scope of their 

hazardous waste management 

regulations beyond the federal 

requirements. These changes may be 

intended to address hazards from wastes 

that are particular to that state, may 

reflect state regulatory policy choices 

that are different from federal 

regulations, or for other reasons. These 

regulations apply only to waste 

generated or managed within the state. 

Several states have expanded the 

scope of the RCRA corrosivity 

regulation for wastes in their states, 

including California, Washington, New 

Hampshire, Vermont and Rhode Island. 

All of these states expanded their 

definitions of corrosive waste to include 

non-aqueous wastes, but all retained the 

RCRA regulatory value of pH 12.5 (or 

higher). However, Rhode Island has 

withdrawn its regulation for nonaqueous corrosives.39 California 

regulates solid corrosives, but excludes 

waste concrete, cement, cement kiln 

dust and clinker from regulation as 

corrosive hazardous waste.40 The 

Agency collected some data on wastes 

regulated under these expanded state 

programs, but they were of limited value 

in considering the petitioners’ requests. 

California’s waste identification codes 

do not distinguish between aqueous and 

non-aqueous corrosive waste, so their 

data would not have helped the Agency 

understand implementation of their 

non-aqueous corrosive waste regulatory 


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program. Data from other states also did 

not provide the Agency with much 

insight about regulating non-aqueous 

wastes, as they are not heavily 

industrialized states, generate relatively 

little hazardous waste, and may not be 

representative of more industrialized 

states and the types and volumes of 

wastes their industries might generate 

(EPA 2011, EPA 2020). 

B. Industry Stakeholder Comments 

A number of different companies and 

industry groups submitted comments on 

the tentative denial of the corrosivity 

rulemaking petition. One group of 18 

trade entities and companies included 

the American Chemistry Council (ACC), 

American Iron and Steel Institute (AISI), 

the American Fuel & Petrochemical 

Manufacturers, the Portland Cement 

Association (PCA), and the waste 

treatment and disposal company Waste 

Management Inc., among others. Other 

industry commenters include the Retail 

Industry Leaders Association (RILA), 

the National Ready-Mixed Concrete 

Association, the Environmental 

Technology Council (ETC; representing 

hazardous waste treatment and disposal 

companies), the Utility Solid Waste 

Activities Group (USWAG; representing 

110 energy utilities and energy 

generating companies), and another 

group of industries identifying 

themselves as the ‘‘RCRA Corrective 

Action Project’’ (representing Waste 

Management, Inc. and apparently other 

Fortune 50 companies not identified in 

the comment). 

Several of these companies or 

associations also submitted comments 

on the tentative denial to the Agency as 

part of the Agency’s broad regulation 

review efforts that solicited public 

comments starting April 13, 2017 (82 FR 

17793, April 11, 2016). New comments 

were sent by a group calling itself the 

‘‘Federal Recycling and Remediation 

Council’’ composed of a number of 

industrial companies that believe they 

might be affected by changes to RCRA 

regulations (although the submission 

did not identify its members), the ACC, 

and the Holly Frontier Corporation (a 

petroleum refiner). 

These commenters supported the 

Agency’s analysis and conclusions 

presented in the tentative denial and/or 

urged the Agency to issue a final denial 

of the petition as soon as practicable. 

These companies and organizations 

identified a number of concerns in 

expressing their opposition to the 

regulatory revisions sought by the 

petition. Their concerns include a 

number of possible impacts of the 

proposed regulatory changes, and many 

commenters’ belief that the regulatory 

changes sought would, if implemented, 

provide no meaningful public health 

benefit (although no risk assessment nor 

other evaluation was submitted in 

support of this conclusion). 

Industry commenters were concerned 

about both cost and non-cost impacts of 

the proposed changes. The regulatory 

changes sought by the petitioners 

would, if implemented, result in more 

stringent definitions for corrosive waste, 

and/or broaden the scope of the 

regulation, and so more waste would be 

regulated as corrosive hazardous waste. 

The industry comments on the tentative 

denial reiterate their earlier estimates 

(submitted to the Agency while the 

tentative denial was under 

development, and referenced in the 

tentative denial) of the types and 

volumes of waste generated by facilities 

from different industries they believe 

would become newly regulated under 

the proposed revisions, and the possible 

cost of managing such additional waste 

volumes as RCRA hazardous. Industry 

commenters were also concerned about 

the impact of the proposed regulatory 

requirements on the use/re-use of 

certain waste materials. As described 

above, the proposed revisions could 

have a significant impact on the reuse 

of POTW biosolids as fertilizer. 

Commenters on the tentative denial 

also identified several non-economic 

impacts that could occur under revised 

corrosivity regulations. Commenters 

representing POTWs expressed concern 

that lowering the regulatory pH value to 

11.5 could increase the risk of hydrogen 

sulfide (H2S, a toxic gas) formation in 

sewer systems and exposure to workers, 

due to both the lower pH, and the 

possible addition of sulfuric acid to 

wastewater to reduce its pH for 

compliance with wastewater 

pretreatment requirements. These 

commenters also expressed concern that 

lower pH wastewater would allow more 

bacterial growth in wastewater 

treatment systems, which can corrode 

system components. While the water 

treatment facility concerns may have 

some merit, the degree to which pH 

reduction pre-treatment may be used is 

not clear, as RCRA generally allows 

discharges of hazardous wastewaters to 

POTWs under 40 CFR 261.4(a)(1). 

Therefore, it is not clear how much H2S 

risk might increase under the 

petitioners’ proposals. Research on H2S 

control methods indicates pH 

adjustment below pH 11.5 may continue 

to be effective, and treatment with ferric 

chloride can precipitate out the sulfur if 

needed. Maintaining pH 8.6–9.0 can 

reduce the transfer of H2S from liquid to 

the gas phase in sewers, and reduce 

sulfide and methane production, 

although pH values higher than pH 9.0 

may interfere with treatment plant 

digester bacteria (Gutierrez et.al., 2009). 

However, ‘‘shock dosing’’ of sewer 

systems up to pH 12.5–13.0 using 

sodium hydroxide for a short time 

period is also used in some instances 

(Park et.al., 2014). 

Other commenters identified potential 

negative impacts to hazardous waste 

treatment methods and operations for 

other hazardous wastes, and to EPA’s 

Land Disposal Restriction (LDR) waste 

treatment regulatory program. Alkaline 

chemicals are frequently used in 

stabilization/solidification treatment of 

toxic metals occurring in hazardous 

wastes, to immobilize them (by 

converting metals to insoluble salts, or 

by changing matrix pH to reduce 

solubility) and reduce possible release 

to the environment (Conner, 1990; EPA, 

1991). Also, Portland cement is one of 

the most frequently used materials for 

solidification/stabilization of inorganic 

hazardous waste. Wastes initially 

exhibiting the toxicity characteristic 

because of their metals content can, 

after meeting the LDR treatment 

requirements, be disposed in a nonhazardous waste landfill. However, for 

many metal-bearing wastes, metal 

compound solubility is minimized at or 

below pH values of 11.0 (CdOH has its 

minimum solubility around pH 11); 

minimum solubilities for other metal 

oxides occur at lower pHs; (Conner, 

1990; Conner and Hoeffner, 1998). It is 

therefore difficult to assess the likely 

impact of a revised corrosivity 

regulation on treatment of metal-bearing 

hazardous waste. 

One commenter noted that the 

petitioned-for revisions could result in 

the regulation of waste concrete as 

hazardous, a waste they believe has 

been safely managed in construction 

and demolition (C&D) landfills for many 

years. Review of leachate data from C&D 

landfills published from 1995–2014 

indicate an overall pH range of 6.2–8.9 

(Lopez and Lobo, 2014), indicating that 

disposed concrete is not creating highly 

alkaline conditions in landfills that 

currently accept it for disposal. Further, 

while the state of California does 

regulate corrosive solids as hazardous 

within the state, it excludes waste 

cement, CKD, clinker and clinker dust 

(California Health and Safety Code Sec 

25143.8) and waste concrete from this 

designation (CalTrans, 2004). 

Industry stakeholder commenters also 

believe that the public health benefits of 

revised corrosivity regulations would be 

minimal. This belief is based in part on 

the lack of a significant number of 

worker injuries or damage cases they 

have observed during their operations 


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41 In promulgating the RCRA hazardous waste 

identification program, the Agency noted that the 

purpose of the regulation is to identify those wastes 

which, because of the hazards they may pose in 

transportation, treatment, storage or disposal, 

should be subject to appropriate management 

requirements under Subtitle C. (45 FR 33090, May 

19, 1980). 

42The Agency relies on intrinsic hazard as the 

sole basis to classify waste as hazardous for only 

very highly, acutely toxic wastes and a few other 

wastes that pose extreme hazards regardless of how 

they are managed. See 40 CFR 261.11(a)(2). Other 

hazardous characteristics regulations and many 

hazardous waste listings consider aspects of wast 

management (e.g., 40 CFR 261.11(a)(3)). 

related to the handling of wastes that are 

not regulated as hazardous under the 

current regulation, but that might be 

regulated under regulations 

incorporating the petitioners’ requests. 

In the course of developing the tentative 

denial, the Agency reviewed several 

information sources to identify injuries 

or other damage that may have resulted 

from waste the petition would newly 

regulate (see: 81 FR 21307, April 11, 

2016). These included an OSHA worker 

injury database, damage cases identified 

in an Agency report as resulting from 

recycling activities, and a report of a 

contractor search for damage cases that 

might be related to waste the petitioners 

have sought to regulate. None of these 

sources identified significant corrosive 

injuries from waste management or from 

aspects of production processes that 

might pose exposures similar to those 

that might occur during waste 

management. 

C. Other Comments 

Two state environmental agencies 

submitted comments on the Agency’s 

tentative denial. The Michigan 

Department of Environmental Quality 

(DEQ) supported the tentative denial 

evaluation of the rulemaking petition, 

and the Agency’s conclusions presented 

there, without further comment. The 

Oklahoma DEQ supported the 

regulation of corrosive solids, also 

without further comment or discussion. 

A number of comments were also 

received from individual members of 

the public. These include five law 

school students, three unaffiliated 

individuals, and four anonymous 

commenters. The Agency responds to 

these comments in the Response to 

Comments document accompanying 

today’s Notice. 

V. EPA’s Conclusions and Rationale for 

Its Final Action Denying the PEER/ 

Jenkins Rulemaking Petition To Revise 

the RCRA Corrosivity Hazardous 

Characteristic Regulation 

The Agency has reviewed and 

evaluated the key comments, 

information, and arguments submitted 

by the petitioners and other interested 

stakeholders on the Agency’s tentative 

denial of the rulemaking petition, as 

well as additional relevant information 

identified by the Agency. Based on its 

evaluation of the information as 

presented in this Notice and in the 

Response to Comment Document 

accompanying today’s Notice, the 

Agency has concluded that because the 

available information does not support 

revision of the RCRA corrosivity 

characteristic regulations sought by the 

petitioners, such revisions are 

unwarranted. Consequently, the Agency 

affirms its tentative denial and presents 

this Notice of final denial of the PEER/ 

Jenkins petition in its entirety. 

In their comments on the tentative 

denial, the petitioners argue that EPA 

improperly relied on waste treatment 

and management considerations as part 

of the basis for the corrosivity 

regulation. Petitioners assert that 

assessments of the inherent hazard of 

wastes should be the only consideration 

in establishing the corrosivity regulation 

under RCRA, and further, that the 

Agency is legally obligated to 

promulgate the corrosivity hazard 

assessments presented in GHS and ILO 

guidance as the RCRA corrosivity 

regulatory standard. Much of the 

information provided and arguments 

made by petitioners are intended to 

support this view. The Agency disagrees 

for several important reasons. The 

Agency has the discretion under RCRA 

to regulate potentially corrosive wastes 

based on the risks they may pose when 

plausibly mismanaged, and most 

corrosive waste does not pose the 

extremely high level of hazard posed by 

acutely hazardous wastes, such as 

wastes that are acutely lethal toxins 

with very low LD50 values or explosives 

or similarly highly reactive compounds. 

Absent evidence of such an acute degree 

of intrinsic hazard, EPA’s approach to 

identifying which wastes are hazardous 

under RCRA is based on the risk posed 

when waste is mismanaged, which is a 

key factor to evaluate in hazardous 

waste determinations, and has been 

used to establish regulations for other 

hazardous characteristics and many 

hazardous waste listings.41 All waste, 

regardless of whether the waste is 

classified as hazardous, is intended to 

be subject to some level of control under 

RCRA, and for most waste, the intrinsic 

hazard is only one factor considered in 

determining whether the waste is 

hazardous under RCRA. The Agency has 

used its discretion to take this approach 

when developing regulations for many 

hazardous wastes promulgated under 

the authority of RCRA.42

Further, reliance on international 

guidance in developing regulatory 

programs such as that provided by the 

ILO or in the GHS, is discretionary, and 

RCRA and other statutes do not 

reference nor require the use of such 

guidance in developing regulatory 

programs. As noted, the Agency 

considered the ILO guidance as one 

factor in establishing the corrosivity 

regulation, but also considered waste 

management practices as part of its 

determination. Petitioners’ assertions 

that only inherent hazard may be 

considered identifies their disagreement 

with the Agency’s approach to 

regulating hazardous waste. However, 

the program structure developed by the 

Agency in 1980 is well within Agency 

discretion under RCRA, and has been 

successfully implemented for more than 

40 years. 

The other key question regarding the 

petition concerns whether the record 

compiled for this action indicates that 

the current corrosivity regulation is 

inadequately stringent to protect human 

health and the environment from 

mismanagement of potentially corrosive 

waste, as asserted by the petitioners. 

Petitioners acknowledge that it is not 

necessary to conclude that WTC injuries 

are corrosive injuries to supporting their 

petition requests. Petitioners 

nonetheless continue to argue that WTC 

first responder and other injuries have 

resulted from corrosive properties of the 

WTC dust, without considering that 

injuries may have been due to exposure 

to high levels of other dust components, 

including pulverized glass, smoke from 

ongoing fires, or the many toxic 

constituents that have been identified in 

WTC dust and air samples, or the 

combination of these different 

exposures. Petitioners also insist in the 

petition and in their comments on the 

tentative denial that WTC injuries are 

corrosive injuries, despite the fact that 

research publications reporting on 

studies of the WTC dust-exposed 

cohorts describe primarily chronic 

respiratory symptoms (such as asthma 

or reduced forced expiratory volume) 

resulting from their exposure. While 

these are serious symptoms of adverse 

health effects, none of the research 

publications and reports identified by 

the Agency, the petitioners, or other 

commenters on the tentative denial, 

identify the type of gross tissue injury 

the Agency described in the 1980 

background document and sought to 

prevent in promulgating the RCRA 

corrosivity characteristic. The Agency’s 

review includes health effects studies of 

first responders, other WTC workers, 

and area residents, including children 


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exposed to the WTC dust cloud on the 

day the towers collapsed. Petitioners 

also criticize much of the data collected 

on WTC dust samples (both settled dust 

and worker breathing-zone samples) 

that were evaluated to understand 

exposures and insist that other testing of 

samples was or should have been 

conducted. They argue that many of the 

studies of WTC dust were inappropriate 

or invalid because they did not use test 

methods petitioners believe to be more 

appropriate and hypothesize about the 

likely results of testing using their 

preferred protocols. However, these 

arguments are speculative, and the 

Agency cannot rely on the petitioners’ 

conjectures and speculations as the 

basis for a regulation. While more 

systematic collection of human 

exposure and other data concerning the 

WTC disaster and its aftermath may 

have provided a better basis for 

evaluating WTC exposures, the Agency 

must rely on the data that do exist. 

Petitioners also fail to connect any 

particular WTC exposures to waste 

management activities. That is, not all 

WTC worker and other exposures were 

exposures to waste, but petitioners do 

not identify particular exposures as 

resulting from waste or waste 

management, and distinguish them from 

exposures unrelated to waste 

management activities (such as 

exposure to the dust cloud on the day 

the towers collapsed). Identifying 

exposures resulting from waste 

management is a necessary part of 

petitioner arguments to revise the 

corrosivity regulation, as RCRA gives 

the Agency authority only to control 

waste and waste management and its 

resulting hazards. The Agency’s 

conclusion after examining the existing 

data related to this issue is that based on 

available data, it is not possible to 

identify WTC exposures that may be 

related to waste management as distinct 

from activities and exposures unrelated 

to waste management. Absent a 

connection to waste management 

activities, RCRA does not apply. The 

petitioners have also not explained their 

assertion that more stringent RCRA 

corrosivity regulation would have 

reduced WTC worker exposures and 

hazards, nor how their requested 

revision of the RCRA corrosivity 

regulation now would reduce risks in a 

future event. 

Other exposures cited by the 

petitioners as supporting the need for 

revision of the corrosivity regulations 

(exposure to CKD and building 

demolition dust) similarly have also not 

been found to cause corrosive injury. 

Petitioners also identify a Superfund 

site not considered in developing the 

tentative denial, where caustic soda 

(sodium hydroxide) and hydrofluoric 

acid were found to be mishandled but 

were removed from the site and 

disposed before NPL listing, although 

some residual material was found. 

However, the lack of pH testing or other 

detailed reporting of this material makes 

it difficult to evaluate its relevance to 

the petitioners’ requests. No off-site 

contamination, ecological damage or 

injuries were identified. 

In consideration of the information 

and arguments submitted to the Agency 

in response to its tentative denial of the 

petitioners’ rulemaking request, and the 

Agency’s evaluation and other relevant 

information identified by the Agency, as 

described above and in the Response to 

Comments document accompanying 

today’s Notice, the Agency has 

determined that because changes to the 

existing RCRA corrosivity characteristic 

regulation are not supported by the 

available information, such changes are 

unwarranted. Consequently, the Agency 

denies the PEER/Jenkins Rulemaking 

petition to revise the RCRA corrosivity 

regulation in its entirety. 

List of Subjects in 40 CFR Part 261 

Environmental protection, Hazardous 

waste, Incorporation by reference, 

Recycling, Reporting and recordkeeping 

requirements, Recycling. 

Barry Breen, 

Acting Assistant Administrator, Office of 

Land and Emergency Management. 

[FR Doc. 2021–12327 Filed 6–14–21; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 271 

[EPA–R09–RCRA–2021–0047; FRL–10024– 

12-Region 9] 

Nevada: Final Authorization of State 

Hazardous Waste Management 

Program Revisions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is granting Nevada final 

authorization for changes to its 

hazardous waste program under the 

Resource Conservation and Recovery 

Act (RCRA). The Agency published a 

Proposed Rule on April 5, 2021, and 

sought public comment. No comments 

were received on the proposed 

revisions. No further opportunity for 

comment will be provided. 

DATES: This final authorization is 

effective June 15, 2021. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–R09–RCRA–2021–0047. All 

documents in the docket are listed on 

the http://www.regulations.gov website. 

Although listed in the index, some 

information is not publicly available, 

e.g., confidential business information 

or other information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available electronically 

through http://www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Sorcha Vaughan, Vaughan.Sorcha@

epa.gov, 415–947–4217. 

SUPPLEMENTARY INFORMATION: 

A. What changes to Nevada’s 

hazardous waste program is the EPA 

authorizing with this action? 

On January 8, 2021, Nevada submitted 

a complete program revision application 

seeking authorization of changes to its 

hazardous waste program in accordance 

with 40 CFR 271.21. The EPA now 

makes a final decision that Nevada’s 

hazardous waste program revisions that 

are being authorized are equivalent to, 

consistent with, and no less stringent 

than the Federal program, and therefore 

satisfy all of the requirements necessary 

to qualify for final authorization. For a 

list of State rules being authorized with 

this Final Authorization, please see the 

Proposed Rule published in the April 5, 

2021, Federal Register at 86 FR 17572. 

B. What is codification and is the EPA 

codifying the Nevada’s hazardous 

waste program as authorized in this 

rule? 

Codification is the process of placing 

citations and references to a state’s 

statutes and regulations that comprise a 

state’s authorized hazardous waste 

program into the Code of Federal 

Regulations. The EPA does this by 

adding those citations and references to 

the authorized State rules in 40 CFR 

part 272. The EPA is not codifying the 

authorization of Nevada’s revisions at 

this time. However, the EPA reserves 

the ability to amend 40 CFR part 272, 

subpart DD for the authorization of 

Nevada’s program changes. 

C. Statutory and Executive Order 

Reviews 

This final authorization revises 

Nevada’s authorized hazardous waste 

management program pursuant to 

Section 3006 of RCRA and imposes no 


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