The U.S. Environmental Protection Agency (“EPA” or the “Agency”) recently informed a federal appeals court that it intends to respond no later than March 31, 2016 to a rulemaking petition submitted to EPA in 2011 by one of its own employees and a group of other government employees (“Petitioners”), which asked the Agency to dramatically increase the stringency of the corrosivity characteristic used to identify wastes as hazardous under the Resource Conservation and Recovery Act (“RCRA”).  The Petitioners claimed that EPA had acted “erroneously and fraudulently” in establishing the characteristic in 1980, and thereby endangered public health, most notably among first responders at “Ground Zero” on 9/11 who breathed in dust from the collapse of the twin towers of the World Trade Center.

The Petitioners are seeking (1) to change the pH threshold for alkaline corrosive wastes from 12.5 to 11.5 (a ten-fold change, given that pH is measured on a logarithmic scale), and (2) to apply the pH thresholds for both alkaline and acidic corrosive wastes to non-aqueous wastes.  The requested changes could have important implications for an extremely broad range of industrial and government activities, including, but not limited to, construction, demolition, waste and wastewater treatment, air pollution control, mineral processing, steelmaking, paper production, chemical manufacture and purification, and food processing.  Some consumer products, such as cleaning supplies, could also be brought into the RCRA regulatory system as a result of the sought-after changes, creating problems for retailers who may need to discard such products when they are damaged or expired, office buildings and small businesses that may use the same products, and household hazardous waste collection programs.

As discussed below, the petition has several dubious aspects.  However, it is unclear how EPA will ultimately respond.  Because of the potential stakes, this issue may warrant close monitoring and active engagement with the Agency.

Background

On September 8, 2011, an EPA scientist, Dr. Catherine (“Cate”) Jenkins, and the Public Employees for Environmental Responsibility (“PEER”) submitted an administrative petition to EPA, asking the Agency to modify the RCRA corrosivity characteristic as noted above.  According to the Petitioners, when the Agency originally issued the characteristic in 1980, it “knowingly falsified” the pH level known to cause irreversible corrosive damage to human tissue, and it “perpetuat[ed] the fraud” in subsequent years.  The Petitioners also alleged that a senior EPA official had admitted the Agency “erred” by restricting the application of the pH thresholds to aqueous wastes.

The prime motivation for the petition was a concern that the respiratory symptoms suffered by first responders on 9/11 may have been caused by caustic particles in the dust from the collapse of the World Trade Center buildings.  Petitioners evidently believe that if the 9/11 dust had been classified as corrosive under RCRA and related regulatory regimes, the first responders would have worn respirators that would have prevented injury to their respiratory systems.  The Petition also mentioned similar concerns with respect to dust from demolition of buildings, from cement manufacturing plants, and from transport of cement.

Three years after filing the petition with EPA, on September 9, 2014, the Petitioners filed a lawsuit in the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) claiming that the Agency was unreasonably delaying its response to the 2011 Petition. Petitioners asked for a writ of mandamus from the Court to compel EPA to issue a response.  See, In re Cate Jenkins, Ph.D. and PEER, Petition for Writ of Mandamus (D.C. Cir. No. 14-1173). 

On February 24, 2015, the Petitioners and EPA filed a joint motion with the Court asking to stay the judicial proceedings on the ground that the Agency intended to issue a response to the administrative petition on or before March 31, 2016.  The response could consist of an Advanced Notice of Proposed Rulemaking (“ANPRM”), a notice of proposed rulemaking (“NPRM”), or a tentative determination to deny the petition.  The Agency stated that it would then “act within a reasonable time” to complete any further administrative proceedings, such as issuance of a final rule or final denial of the petition.  In the event that EPA fails to respond in a timely fashion, the court case would resume.

Questionable Aspects of the Petition

There are several dubious aspects of the Petition, some of which are outlined briefly below.  It is possible that EPA will ultimately deny the Petition on these grounds (or others), but this is unknown at the present time.

• Potential Oversimplification of the Hazards of Materials in the 11.5 to 12.5 pH Range.  Petitioners suggest that materials with pH values above 11.5 are universally recognized as corrosive to human tissue.  However, even a cursory review of key documents, including documents cited by Petitioners, reveal a more complicated story.  For example, the most recent edition of the Globally Harmonized System of Classification and Labeling of Chemicals (“GHS”) states that “pH extremes like ≤2 and ≥11.5 may indicate skin effects, especially when associated with significant acid/alkaline reserve (buffering capacity).”  For this reason, “[m]easurement of pH alone may be adequate, but assessment of acid or alkali reserve (buffering capacity) would be preferable.”  Stated another way, there are other factors besides pH that may influence corrosion potential.

• Likely Ineffectiveness of the Petition in Addressing the Issue of Caustic Particulates.  The Petitioners’ primary, if not sole, concern relates to the hazards of inhaling caustic particulates, such as may have been released into the air during 9/11 or may be emitted during routine building demolition.  However, even if the RCRA corrosivity characteristic were changed as Petitioners request, it would have likely have no effect on such particulates.  The characteristic applies only to “solid wastes,” and courts have generally stated that particulate emissions are not subject to solid or hazardous waste regulation, but rather should be addressed under the Clean Air Act.                         

• Misguided Effort to Attack Other Regulations/Guidance Through the RCRA Regulations.  The Petitioners claim that the problems they see with the RCRA corrosivity characteristic are compounded by the fact that it has been incorporated into the list of hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), the hazardous materials transport rules of the U.S. Department of Transportation (“DOT”), and guidance issued by the Occupational Safety and Health Administration (“OSHA”).  However, to the extent the Petitioners object to these other regulations or guidance, they should be seeking to amend them, rather than the RCRA regulations.  While all RCRA hazardous wastes are designated as CERCLA hazardous substances and DOT hazardous materials, both regulatory regimes encompass a much wider range of materials (including materials that are not solid wastes).  Indeed, the DOT regulations have different tests for assessing corrosivity, which are not based on a pH test, but rather directly measure the effects of substances on test animals (as well as on metals).  So, any alleged deficiency in the CERCLA, DOT, or OSHA regulations/guidance cannot properly be attributed to the RCRA characteristic of corrosivity.  

• Ineffectiveness of Petition in Addressing Non-Aqueous Wastes.  The Petitioners have asked EPA to delete the language in the regulations restricting the pH limits to “aqueous” wastes.  However, it is doubtful whether such a change would have any substantive effect, as Petitioners apparently believe.  The reason is that pH measurements under the regulations must be made “as determined by a pH meter using Method 9040C.”  That method explicitly says that it is limited to “aqueous wastes and those multiphase wastes where the aqueous phase constitutes at least 20% of the total volume.”  Indeed, it is difficult to imagine how a pH meter could be used to measure the pH of a solid, as Petitioners are seeking.  As noted in the method, “pH measurement requires some water content.”  Thus, even if the word “aqueous” was stricken from regulatory text, the pH tests would still be limited to aqueous wastes.  While Petitioners might argue that the method itself should also be amended to cover solids, it has been developed specifically for aqueous wastes.  Identifying and qualifying a new test method, even if somehow warranted, would be a complex and time-consuming task, which is not addressed in the Petition.

• Potential Unintended Effect of Petition on Acidic Wastes.  Neither the Petition nor the Court filings raise any concerns about the corrosivity characteristic as it applies to acidic wastes.  However, if the proposal to remove the word “aqueous” has any effect for alkaline wastes (despite the points raised above), it would also have the same effect on acidic wastes.  In this way, the relief being sought by Petitioners would be overly broad.

• Questionable Propriety of a Rulemaking Petition Submitted to EPA by Its Own Employees.  Although RCRA and its implementing regulations provide that “any person” may petition EPA for rulemaking, it is questionable whether the Agency should entertain a petition submitted by its own employees. Doing so would potentially open the door for individual EPA employees to force the Agency to formally revisit any or all decisions made by senior EPA officials with whom they disagree.  Such a result would undermine EPA’s internal management structure and the administrative process more generally.

• Likely Lack of Standing of Petitioners to Pursue Their Lawsuit.  It is unclear why EPA has not filed a motion to dismiss the lawsuit brought by the Petitioners, inasmuch as they likely do not have legal standing to file a case in the Court.  The administrative petition simply makes the nebulous and unsupported assertion that the Petitioners have “personal and professional interests in preventing chemical burns and respiratory consequences from exposures to alkaline corrosive materials.”  This does not appear to be the type of concrete and particularized injury typically required to establish legal standing. 

Potential Effects of the Petition

In light of the questionable aspects of the petition outlined above, it is possible that EPA might ultimately deny the petition.  However, this is far from clear, and if the Agency were to grant the petition, the effects could be wide-ranging and onerous (especially if non-aqueous wastes are captured by the amended characteristic, as intended by the Petitioners).  We first focus on the potential effects on demolition operations, since the Petitioners have explicitly targeted such activities.  We then briefly explain how similar effects could be felt in a wide range of other business and government sectors.

            Demolition and Related Construction/Renovation Activities

According to the Petitioners, “routine building demolition results in cement dust with pH levels over 11.5.”  If this is true, and the bulk cement also exhibits the same levels (which it presumably would do), persons engaged in demolition – and, most likely, construction or renovation – of buildings, roads, bridges, and even residences (given EPA’s position that wastes from construction, renovation, and demolition of residences are not exempt household wastes) could become regulated hazardous waste generators.  As such, they could have to obtain an EPA identification number for each individual site, ensure that any storage of the materials complies with applicable requirements (e.g., by covering all containers such as roll-offs, labeling them, preventing any releases, and, in some states, having secondary containment), and ship the wastes off-site using a hazardous waste transporter and a hazardous waste manifest. 

The wastes could then have to be delivered directly to a permitted hazardous waste facility.  They likely could not be placed “as is” into a landfill – even a hazardous waste landfill with double liners and a leachate collection system.  Instead, they would have to be treated to meet applicable standards that would need to be established under the RCRA land disposal restrictions (“LDR”) program.  The existing LDR treatment standard for corrosive wastes is that they (1) must be “deactivated” (i.e., rendered non-hazardous) and (2) must meet universal treatment standards for any underlying hazardous constituents.  However, it is unclear how such a standard could be met for concrete debris that, according to Petitioners, is inherently high in pH and in a form that does not lend itself to further treatment.              

            Treatment of Waste, Wastewater, and Biosolids

As Petitioners note, one of the reasons that EPA originally set the pH threshold for alkaline corrosive wastes at 12.5 in 1980 was to ensure that lime and lime-treated wastes and sludges would not be classified as hazardous.  The Agency said that treatment with lime is “valuable” and should not be discouraged.  Indeed, in 1984, EPA issued an exclusion from RCRA regulation for certain wastes that are explicitly listed as hazardous wastes, as long as they have been “stabilized” by treatment with lime (i.e., lime-stabilized spent pickle liquor sludge from the iron and steel industry).  Moreover, under the LDR program, EPA established numerical treatment standards for many, if not most, metal-bearing wastes based on levels that could be attained through stabilization with lime or cement, and for some wastes such stabilization is specifically required.

However, under the Petitioners’ proposal, all of these stabilized wastes could potentially be brought back into the RCRA-regulated universe, to the extent they might exceed the reduced pH limit of 11.5.  In such an event, the treated wastes would be subject to the same regulations as the demolition debris discussed above (e.g., the requirements for storage, manifesting, and transport).  Among other things, the treated wastes might no longer be allowed in a landfill – even a hazardous waste landfill – because they would now also have to meet LDR treatment standards for the new class of corrosive wastes.  In this way, the Petition might effectively require that the LDR treatment standards for many, if not most, metal-bearing wastes be replaced with new standards based on some as-of-yet unspecified treatment technology (assuming a suitable technology for already stabilized wastes even exists).

           Other Industrial Activities

Lime is used in an exceptionally wide range of industrial applications, such as in air pollution control, mineral processing, steelmaking, paper production, chemical manufacture and purification, and food processing.  Although data on the pH of wastes from these operations is limited, it seems possible, if not likely, that some of these wastes might be affected by reducing the pH threshold from 12.5 to 11.5, and/or applying the threshold to non-aqueous wastes, with the same regulatory consequences outlined above for demolition wastes that are added to the RCRA regulatory system.

            Alkaline Cleaning Supplies and Other Caustic Products

Many common cleaning products (e.g., ammonia, bleach, and lye) have elevated pH, potentially in the range of 11.5 to 12.5, depending upon their strength.  To the extent that such products, or residues from use of these products, are discarded, they would be classified as wastes and, if the corrosivity characteristic was expanded as requested in the petition, would also qualify as hazardous wastes.  If the wastes are generated by a household, they would not be subject to federal RCRA regulation under the household hazardous waste exclusion.  However, if generated by a business or government entity (e.g., a wholesaler, retailer, or end-user), the wastes could be subject to the full array of hazardous waste requirements outlined above. 

            Non-Aqueous Wastes with Low pH

As noted above, the Petitioners are seeking to subject non-aqueous wastes not only to the threshold for alkaline corrosivity, but also the threshold for acidic corrosivity.  It is not immediately obvious what wastes might be affected by such a regulatory change, and the answer may depend upon what test would be used to determine the pH of a non-aqueous waste (recognizing, as discussed above, that the currently mandated test applies only to aqueous wastes).  However, it seems likely that some solids would be significantly affected by the proposed regulatory change at the low end of the pH scale, just as they would be at the high end of the pH scale.