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Rule2021-12327

Corrosive Waste Rulemaking Petition; Denial

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Published

June 15, 2021

Effective

June 15, 2021

Issuing agencies

Environmental Protection Agency

Abstract

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 non- aqueous 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.

Full Text

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<title>Federal Register, Volume 86 Issue 113 (Tuesday, June 15, 2021)</title>
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[Federal Register Volume 86, Number 113 (Tuesday, June 15, 2021)]
[Rules and Regulations]
[Pages 31622-31637]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-12327]

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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.

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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 non-
aqueous 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 <a href="http://www.regulations.gov">http://www.regulations.gov</a>. All
documents in the docket are listed on the <a href="http://www.regulations.gov">http://www.regulations.gov</a>
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 <a href="http://www.regulations.gov">http://www.regulations.gov</a>.

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:
<a href="/cdn-cgi/l/email-protection#b2dad7dedfc19cd5c0d7d5f2d7c2d39cd5ddc4"><span class="__cf_email__" data-cfemail="ed858881809ec38a9f888aad889d8cc38a829b">[email&#160;protected]</span></a>

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

[[Page 31623]]

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

[[Page 31624]]

such report was filed with the court on April 5, 2021.
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\1\ Sec. 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. <a href="https://www.epa.gov/hw-sw846/sw-846-compendium">https://www.epa.gov/hw-sw846/sw-846-compendium</a>.
\2\ The Petitioners' lawsuit was filed with the U.S. Court of
Appeals for the District of Colombia Circuit. <a href="https://www.cadc.uscourts.gov/internet/home.nsf">https://www.cadc.uscourts.gov/internet/home.nsf</a>.
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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 non-aqueous 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:
<bullet> 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).
<bullet> 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.
<bullet> The petitioners assert that the Agency inadequately
considered information submitted by petitioners in support of the
petition.
<bullet> 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.
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\3\ The 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).
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<bullet> The petitioners assert that the EPA misunderstands the
applicability of RCRA regulations to the WTC dust and debris.
<bullet> 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

[[Page 31625]]

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.
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\4\ Consideration 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 LD<INF>50</INF> 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.
\6\ The 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).
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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: <a href="https://www.lime.org/lime-basics/uses-of-lime/enviromental/biosolids-and-sludge/">https://www.lime.org/lime-basics/uses-of-lime/enviromental/biosolids-and-sludge/</a>). 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

[[Page 31626]]

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.
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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.
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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.
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\8\ GHS was first published in 2003 and has been periodically
revised; it is currently in its eighth revision, published in 2019.
See: <a href="https://www.unece.org/trans/danger/publi/ghs/ghs_welcome_e.html">https://www.unece.org/trans/danger/publi/ghs/ghs_welcome_e.html</a>.
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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:
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\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.

Although the GHS standard is voluntary for U.N. member nations, the
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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 (<a href="https://www.epa.gov/pesticide-labels/pesticide-labels-and-ghs-comparison-and-samples">https://www.epa.gov/pesticide-labels/pesticide-labels-and-ghs-comparison-and-samples</a>; downloaded 03/02/20). The Consumer Product
Safety Commission (CPSC) has also considered GHS but not incorporated
it into its regulations (<a href="https://www.cpsc.gov/content/policy-of-the-us-consumer-product-safety-commission-on-the-globally-harmonized-system-of">https://www.cpsc.gov/content/policy-of-the-us-consumer-product-safety-commission-on-the-globally-harmonized-system-of</a>).
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\
---------------------------------------------------------------------------

\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).
---------------------------------------------------------------------------

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).
---------------------------------------------------------------------------

\11\ The 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. (<a href="https://www.unece.org/trans/danger/publi/ghs/implementation_e.html#c25877">https://www.unece.org/trans/danger/publi/ghs/implementation_e.html#c25877</a>). 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: <a href="https://www.usfj.mil/Portals/80/2018%20JEGS.PDF?ver=2018-04-26-195301-487">https://www.usfj.mil/Portals/80/2018%20JEGS.PDF?ver=2018-04-26-195301-487</a>.
---------------------------------------------------------------------------

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

[[Page 31627]]

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.
---------------------------------------------------------------------------

\12\ Lime 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).
---------------------------------------------------------------------------

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

[[Page 31628]]

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\
---------------------------------------------------------------------------

\13\ The 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.
---------------------------------------------------------------------------

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 pre-neutralize 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 ``non-
optimal'' 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
On-Scene 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.
---------------------------------------------------------------------------

\14\ Report Endnotes 125-129 reference EPA Region 6 training
materials, and OSHA HAZWOPER regulations at 29 CFR 1910.120,
Appendix E.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\15\ The 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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\16\ For information on inhalable particulates see: <a href="https://www.epa.gov/pm-pollution/particulate-matter-pm-basics">https://www.epa.gov/pm-pollution/particulate-matter-pm-basics</a>.
\17\ Mixing 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.
---------------------------------------------------------------------------

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

[[Page 31629]]

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\
---------------------------------------------------------------------------

\18\ The 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.
---------------------------------------------------------------------------

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

[[Page 31630]]

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; <a href="https://wwwn.cdc.gov/ResearchGateway/Content/pdfs/Development_of_the_Inventory_of_9-11_Agents_20180717.pdf">https://wwwn.cdc.gov/ResearchGateway/Content/pdfs/Development_of_the_Inventory_of_9-11_Agents_20180717.pdf</a>). The
inventory includes 352 chemicals or other materials (e.g., glass
fibers, PM<INF>2.5</INF>). 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\
---------------------------------------------------------------------------

\19\ See data collected by NIH (<a href="https://disasterinfo.nlm.nih.gov/wtc-hazards">https://disasterinfo.nlm.nih.gov/wtc-hazards</a>), the City of New York 9/11
Health index of studies (<a href="https://www1.nyc.gov/site/911health/researchers/wtc-scientific-bibliography.page">https://www1.nyc.gov/site/911health/researchers/wtc-scientific-bibliography.page</a>), 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).
\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.
\21\ Reviews 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.
\22\ The 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. <a href="https://www.ncdc.noaa.gov/cdo-web/search">https://www.ncdc.noaa.gov/cdo-web/search</a>. Accessed
July 15, 2020.
\23\ Also 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.
\24\ The 9/11 WTC Health Program is administered by CDC/NIOSH.
\25\ The 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.
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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 (H<INF>2</INF>S), 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 non-

[[Page 31631]]

detect to 2.3 mg/m\3\, with all samples below the NIOSH REL for
Portland cement (10 mg/m\3\). Respirable particulates ranged up to 0.32
mg/m\3\, well below the NIOSH REL for Portland cement (5 mg/m\3\).
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.
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\26\ NIOSH 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: <a href="https://www.cdc.gov/niosh/npg/default.html">https://www.cdc.gov/niosh/npg/default.html</a>).
\27\ OSHA 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).
---------------------------------------------------------------------------

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 re-
evaluated 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.
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\28\ The 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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\29\ See: 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.
---------------------------------------------------------------------------

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

[[Page 31632]]

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).
---------------------------------------------------------------------------

\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.''
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\31\ While 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.
---------------------------------------------------------------------------

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

[[Page 31633]]

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 (<a href="https://www.chicagotribune.com/news/ct-xpm-2002-01-27-0201270268-story.html">https://www.chicagotribune.com/news/ct-xpm-2002-01-27-0201270268-story.html</a>; <a href="https://edition.cnn.com/2002/WORLD/asiapcf/east/01/23/china.wtcsteel/">https://edition.cnn.com/2002/WORLD/asiapcf/east/01/23/china.wtcsteel/</a>).
---------------------------------------------------------------------------

\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.
\33\ These 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.
\34\ Petitioners' requested revisions to the corrosivity
characteristic regulation could potentially apply to pieces of
broken concrete.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\35\ The 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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\36\ See, Utility Solid Waste Activities Group v. EPA, 901 F.3d
414 (D.C. Cir. 2018).
---------------------------------------------------------------------------

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

[[Page 31634]]

in the response to comments document accompanying today's Notice.
---------------------------------------------------------------------------

\37\ As 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).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\38\ The 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.)
---------------------------------------------------------------------------

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
non-aqueous 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

[[Page 31635]]

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).
---------------------------------------------------------------------------

\39\ Non-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).
\40\ See California Health and Safety Code Sec. 25143.8.
---------------------------------------------------------------------------

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 (H<INF>2</INF>S, 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 H<INF>2</INF>S risk might increase under the
petitioners' proposals. Research on H<INF>2</INF>S 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
H<INF>2</INF>S 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 non-hazardous 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

[[Page 31636]]

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 LD<INF>50</INF>
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\
---------------------------------------------------------------------------

\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).
\42\ The 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)).
---------------------------------------------------------------------------

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

[[Page 31637]]

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

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