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EPA Extends Comment Deadline Regarding Petition to Change RCRA Criteria

Environmental Law Alert Peter A. Tomasi, Lauren G. Harpke

On June 10, 2016, the U.S. Environmental Protection Agency (EPA) extended to December 7 the deadline to submit comments regarding a proposed decision to deny a petition filed by a public interest group to revise the corrosive dust limit under the Resource Conservation and Recovery Act (RCRA).

The petition was filed by Public Employees for Environmental Responsibility (PEER). PEER petitioned the EPA in 2011 to revise the corrosivity standard, alleging that the current limit (set at a pH of 12.5) is significantly less stringent than the presumed safe levels for basic (alkaline) corrosives set by other international bodies. PEER alleges that first responders who entered the World Trade Center after the September 11, 2001 attacks were exposed to dust without personal protective equipment because the standard for corrosivity is set at too high a pH.

PEER asked the EPA to revise the threshold to categorize a waste as a corrosive hazardous waste. PEER proposed reducing the threshold from a pH of 12.5 to a pH of 11.5. (Because pH is a logarithmic scale, the change would drop the threshold for corrosivity by a factor of 10.) PEER also requested that the EPA revise the criteria to address nonaqueous as well as aqueous waste. In the EPA’s proposed denial of the petition, the agency stated that the World Trade Center injuries could not be attributed to any one property of the dust such as the corrosivity, and for that reason declined to change the standard.

The petition is of significant interest to the industry because a revision to the corrosivity standard would impact wastewater and disposal practices across a number of industries. For example, numerous industries utilize active lime, which has a pH above 11.5. While the safety data sheets provided by industrial manufacturers identify potential health effects from exposure to lime, unused lime is not required to be disposed of as a hazardous waste. A number of water treatment agencies oppose the petition because they believe that higher pH waste water is generally more protective of sewer pipes and worker safety than lower pH surface water, and because many waste treatment facilities have an upper pH limit of between 11.5 and 12.0, a change in the standard would trigger a need to revise permit limits.

If the EPA were to change course and grant the petition, the effects would extend beyond waste water treatment facilities and industrial facilities using quick lime. As noted by the Retail Industry Leaders Association (RILA), many common consumer cleaning products exhibit a pH value between 11.5 and 12.5. If the petition were granted, these cleaning products would be reclassified as hazardous waste at the time of disposal, with attendant compliance costs for storage and treatment segregation as hazardous waste, transportation utilizing hazardous material appropriate packaging, and disposal in accordance with RCRA Subtitle C Hazardous Waste Regulations.

As noted above, the EPA is taking comment on the proposed denial of the petition through December 7, 2016. Given the potentially significant impacts to existing consumer products and industrial operations, industries and industry groups may need to consider commenting on the rule.

If you have any questions on this rulemaking please contact Peter A. Tomasi at (414) 277-5677/peter.tomasi@quarles.com, Lauren Grahovac Harpke at (414) 277-5183/lauren.harpke@quarles.com, or your Quarles & Brady attorney.