Authors: Aaron H. Goldberg and Donald J. Patterson, Jr.
Beveridge & Diamond, P.C. , April 12, 2016
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Summary: This news alert discusses EPA’s tentative decision to deny a petition from one of its own scientists and an environmental group, both seeking a dramatic expansion of the definition of “corrosive” wastes under the U.S. federal hazardous waste regulations. The Agency will accept public comments on its tentative decision until June 10, 2016, after which time it will either issue a final decision denying the petition or initiate a rulemaking to change the corrosivity characteristic.
The U.S. Environmental Protection Agency (“EPA” or the “Agency”) yesterday announced its tentative decision to deny a rulemaking petition to expand dramatically the corrosivity characteristic used to identify wastes as hazardous under the Resource Conservation and Recovery Act (“RCRA”). See 81 Fed. Reg. 21,295 (April 11, 2016). Importantly, EPA’s action on the petition is not yet final, and the Agency is asking for public comment on its tentative decision. Comments are due on June 10, 2016. If EPA ultimately finalizes its denial of the petition, the petitioners may seek to challenge such action in court.
Under the RCRA regulations that have been in effect since 1980, one of the ways that wastes may be classified as hazardous, and thus subject to hazardous waste regulation, is if they exhibit the characteristic of corrosivity. Wastes are considered corrosive if a representative sample (a) is aqueous and has a pH less than or equal to 2.0, or greater than or equal to 12.5, or (b) is liquid and corrodes steel at a rate greater than 6.35 mm/year.
On September 8, 2011, an EPA scientist, Dr. Catherine (“Cate”) Jenkins, and the Public Employees for Environmental Responsibility (“PEER”) (hereinafter referred to jointly as “Petitioners”) submitted an administrative petition to EPA, asking the Agency to modify the RCRA corrosivity characteristic in two ways: (1) by changing 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) by applying the pH thresholds for both alkaline and acidic corrosive wastes to non-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.
The requested changes to the characteristic of corrosivity could have important implications for an extremely broad range of industrial and government activities, including, but not limited to, the following:
A more complete discussion of the potential effects of the regulatory changes sought by the Petitioners can be found in the B&D Summary and Analysis entitled “ EPA Commits to Respond in Early 2016 to Petition Seeking to Make the RCRA Corrosivity Characteristic 10 Times More Stringent ” (April 23, 2015).
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 notice issued yesterday by EPA provides that response.
EPA’s Basis for Tentatively Denying the Petition
EPA has tentatively decided to deny the petition in its entirety, which would mean that the corrosivity characteristic would continue to apply only to aqueous wastes with pH less than or equal to 2.0, or greater than or equal to 12.5 (as well as liquid wastes that corrode steel at a rapid rate, since that portion of the characteristic was not addressed in the petition). According to the Agency, the Petitioners failed to demonstrate that the requested changes to the corrosivity characteristic are warranted. EPA pointed, in particular, to the following:
EPA’s action on the petition is still not final, and the Agency is requesting public comment on its tentative decision to deny the petition. In particular, it has asked for information about the types and amounts of wastes that might be reclassified as hazardous under the petition, the potential hazards associated with such wastes, and the potential costs if such wastes had to be managed as hazardous wastes under RCRA.
Comments will be due on June 10, 2016. EPA will then review the comments and arrive at a final decision, which may consist of either a final denial of the petition or the start of a rulemaking to revise the corrosivity characteristic ( e.g. , an Advanced Notice of Proposed Rulemaking (“ANPRM”) or a notice of proposed rulemaking (“NPRM”)). There is currently no deadline for final action by EPA. However, in the D.C. Circuit litigation mentioned above, the Petitioners may seek to impose such a deadline. Indeed, the parties in that case are scheduled to file motions to govern further proceedings by April 14, 2016.
If EPA issues a final denial of the petition (as seems likely, given the strength of the arguments set forth in the Agency’s notice of tentative denial), that could be the end of the story. However, it is also possible that the Petitioners could file a new court case challenging EPA’s action.
Regardless of the final outcome, EPA’s notice seems to open the door to other related developments. For example, the Agency says that it may consider clarifying when wastes are “aqueous,” and thus subject to the pH test, in a future update to its guidance on test methods for solid wastes (commonly referred to by its EPA publication number, “SW-846”). EPA also notes that it could initiate a rulemaking process (perhaps in response to a future petition) to establish an entirely new hazardous waste characteristic covering “irritant wastes,” or to explicitly list as hazardous wastes specific wastes (aqueous or non-aqueous) in the pH range between 11.5 and 12.5. Although EPA does not appear to have any immediate plans to undertake any of these efforts, the potential stakes are so high that these issues may warrant close monitoring and active engagement with the Agency.
Beveridge & Diamond assists clients in a wide range of industrial sectors with hazardous waste regulatory issues under RCRA , its state counterparts, international treaties, and the laws and regulations of countries around the world. We regularly advise companies on legal and technical issues associated with application of the hazardous waste characteristics to particular wastes. We have also litigated related issues, for example by successfully arguing in different cases that (a) certain lime-containing wastes were not corrosive even though they exhibited a pH greater than 12.5 at low temperatures (because they exhibited a lower pH at room temperature), (b) a specific waste with a low flash point was not ignitable because it did not qualify as a liquid and thus was not subject to the flash point test, and (c) the toxicity characteristic should not be applied to mineral processing wastes. For more information on the corrosivity petition and litigation, as well as their potential effects, please contact the authors.