With a back story sparked by the tragedy of 9/11 and that at times reads like a novel teeming with alleged government cover-up, fraud and employee persecution, EPA has agreed to a March 31, 2016, deadline for deciding whether to revise the corrosivity characteristic under the Resource Conservation and Recovery Act (RCRA).

The agreement came in a joint motion approved on March 13, 2015, by the U.S. Court of Appeals for the D.C. Circuit and filed between EPA and EPA employee Dr. Cate Jenkins and Public Employees for Environmental Responsibility (PEER), who represents Dr. Jenkins.

At issue are the alkaline hazardous waste thresholds under the RCRA corrosivity characteristic at 40 CFR Section 261.22. With respect to alkaline wastes, that provision regulates as a corrosive waste any aqueous waste that has a pH greater than or equal to 12.5 and non-aqueous liquids that corrode steel at a rate greater than 0.250 inch per year under specified testing parameters. Only liquid wastes can be considered RCRA corrosive hazardous wastes. EPA promulgated the standard in 1980 and it has remained unchanged for 35 years.

In a surrealistic nexus between one of our nation’s darkest days and two paragraphs of bureaucratic regulations promulgated when President Carter was in office, the arc of this story began with the terrorist attacks of 9/11. First responders to the World Trade Center in the aftermath of the 9/11 terrorist attacks inhaled corrosive dust that has reportedly caused long-term adverse health effects. This corrosive dust would not be considered a RCRA hazardous waste by EPA under the current regulations. But Dr. Jenkins alleges that EPA knowingly set the 12.5 pH level ten times too high and that had it set the pH level appropriately at 11.5 that first responders would have been provided with necessary warnings and the requisite personal safety equipment.

Dr. Jenkins claims EPA “knowingly falsified the alkaline pH level that is considered safe for human exposure” when it promulgated the corrosivity characteristic. She claims that she raised her concerns with EPA officials but was allegedly ignored and subjected to reprisals for raising the issue and that her responsibilities were shifted. She then took this information in 2006 and 2007 to members of Congress and the FBI and sought protection under federal whistleblower protection laws. In discovery during the litigation, certain EPA officials reportedly admitted that EPA mistakenly set the pH limit too high and that the limitation of the corrosivity characteristic to aqueous wastes was a mistake. Dr. Jenkins and PEER then in September 2011 filed a Rulemaking Petition to EPA, seeking to change the “erroneously-set pH 12.5 to the international standard of pH 11.5 for alkaline hazardous waste, and to remove the limitation to aqueous wastes.” The petition claims that:

• The EPA standard is ten times more lax than the presumed safe levels for alkaline corrosives set by the United Nations, the European Union and Canada;
• EPA based its standard on a misrepresentation of the international corrosivity standard and has steadfastly refused to revisit this clear error in the succeeding decades; and
• The characteristic contains a false distinction between water and non-water containing materials. This is because on human contact, water-free alkaline materials quickly absorb water from body tissues, particularly the respiratory tract. At high enough levels, this causes permanent tissue damage.

EPA did not respond to the petition. Dr. Jenkins and PEER subsequently filed a Petition for Writ of Mandamus with the U.S. Court of Appeals for the D.C. Circuit in September 2014, asking the court to compel EPA to respond to the petition.

The March 13, 2015, agreement between EPA, Dr. Jenkins and PEER stays the proceedings in the case. Under that joint motion, EPA has agreed to make a decision by March 31, 2016, as to whether it will revise the corrosivity characteristic. EPA makes clear in the agreement that it does not concede that the petition for writ of mandamus has merit, but merely states that it “intends to sign for publication in the Federal Register a response to Petitioners’ Petition for Rulemaking on or before March 31, 2016.” EPA states that it will either make a tentative decision to grant or deny the petition in the form of an advanced notice of proposed rulemaking, a proposed rule, or a tentative determination to deny the petition.

If EPA does alter the provision, the impacts could extend beyond the corrosivity characteristic itself. It could affect the list of hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund), Occupational Safety and Health (OSHA) regulations, past hazardous waste determinations and listings, hazardous waste delistings, and treatment standards under the RCRA Land Disposal Restrictions (LDR) program.