A view to die for. OSHA and Free Climbing an Antenna

My wife told me about a YouTube video that my son had posted on Facebook.  "You got to see this, it's a guy climbing an antenna tower with a helmet-cam."

Being the slowpoke I am, I waited a day and wouldn't you know it, the guy who posted it took it down.

The video first appeared on The On Line Engineer's web site, but the man that shot it using a helmet camera, and who approved the edited version, said "he was getting calls from colleagues telling him that they were concerned about what the video showed," according to the web site's owner, Russ Brown. It was removed due to Brown's concern for his friend who provided the climbing footage.

Well darn.  But leave it to the internets!  Someone copied the video and you can watch it here.  It's a seven-minute video of two lighting technicians free climbing at the top of a 1,768-foot broadcast tower.  But voyeurism is not the purpose of this post, so on to the crux of the issue.  While watching the video I hear the narrator say:

"...it's easier, faster and most tower workers climb this way. Free climbing is more dangerous, of course, but OSHA rules do allow for it."

Say what?  You can't free climb without fall protection my brain and gut tell me...at least I don't think so....

Google Search and you get a lot of information on what people think you can't do and what tower climbers say they do.  But that's not important to me.  What does OSHA say about it, and then - as your safety guy - what do I want done.

Jim Coleman, Chairman of the National Association of Tower Erectors viewed the video this morning on YouTube and was troubled by the comments concerning free climbing. He was also concerned that it was entitled as a tutorial."I'm unaware of any guidance by OSHA that allows for free climbing as an acceptable method of accessing elevated work," Coleman said.

Well that's what I was thinking, so it must be true.  So in class I am talking about regulations and how difficult it is to comply when your employees disregard OSHA.  I bring up the video and make my bold statement of fact (I am the teacher remember) "you can't climb without fall protection!"

Now I have been teaching adults for 11 years and practically no one argues with the teacher, unless you are wrong and they know or believe themselves to be correct.  "That's not true, if you are a qualified climber.  Well at least in the power distribution industry...not sure about telecommunications." states one of my students who then informs me he teaches linemen.

OK, so maybe I am wrong...or is he...Didn't that Jim Coleman guy agree with me?

And therein lies the problem for us regulatory folks.  What do we have to do legally?  How does one know what is the truth when everyone spouts different truths?  Well since this is an OSHA type question, go to OSHA.

I look and look and look, but nothing can easily be found on their better than most web site.  Until I come across a PDF of a Federal Register May 24, 2010 (Volume 75, Number 99) Proposed Rules Page 28861-29153.  In it it talks about this concept of "Qualified Climber" and pretty much goes on to say that the term was defined in a 1990 proposed rule as:

A qualified climber was defined as "an employee who, by virtue of physical capabilities, training, work experience, and job assignment is authorized by the employer to routinely climb fixed ladders, step bolts or similar climbing devices attached to structures."

Hmmm...proposed rule?  OK, well what else does OSHA say?

OSHA proposed that rather than always providing conventional fall protection (cages, wells, ladder safety systems, or other fall protection) to employees climbing fixed ladders over 24 feet , the employer could allow qualified climbers to climb without fall protection provided certain criteria were met.

So apparently the electric power generation, transmission, or distribution industry (1910.269) and telecommunications industry (1910.268) all believe they can free climb if they are qualified climbers.  Here is what the electric power generation, transmission, or distribution industry is allowed to do:

Fall protection equipment is not required to be used by a qualified employee climbing or changing location on poles, towers, or similar structures, unless conditions, such as, but not limited to, ice, high winds, the design of the structure (for example, no provision for holding on with hands), or the presence of contaminants on the structure, could cause the employee to lose his or her grip or footing. [U]nqualified employees (including trainees) are required to use fall protection any time they are more than 4 feet above the ground. 1910.269(g)(2)(v)

But there is no such allowance in 1910.268 for Telecommunication work.  Instead what it states is:

Safety belts and straps shall be provided and the employer shall ensure their use when work is performed at positions more than 4 feet above ground, on poles, and on towers, except as provided in paragraphs (n)(7) and (n)(8) of this section. 1910.268(g)(1)

(n)(7): Outside work platforms. Unless adequate railings are provided, safety straps and body belts shall be used while working on elevated work platforms such as aerial splicing platforms, pole platforms, ladder platforms and terminal balconies.

(n)(8): Other elevated locations. Safety straps and body belts shall be worn when working at elevated positions on poles, towers or similar structures, which do not have adequately guarded work areas.

So unless you want to place maintaining an antenna in the 269 standards for power generation, transmission, or distribution, and not in the 268 standards for telecommunication which defines "field work" as...:

[T]he installation, operation, maintenance, rearrangement, and removal of conductors and other equipment used for signal or communication service, and of their supporting or containing structures, overhead or underground, on public or private rights of way, including buildings or other structures.

...free climbing that 1768 foot antenna without 100 percent fall protection in place the whole time is in violation of OSHA.  But wait...things are never what they seem to be, especially with regulations and how the agency "sees" things.

In the 2010 proposed rule, OSHA states:

[this] proposed rule "would not apply to [work] covered by Sec. 1910.268(n)(7) or (n)(8).  These two industry-specific standards [268 & 269] generally permit employees to free climb to work locations on poles, towers, and similar structures without the use of fall protection equipment. These standards protect employees by requiring adequate training in climbing [by] ensuring that employees are proficient in safe climbing techniques.

and

What is required is "three points of contact with the ladder when ascending or descending. (Please note this requirement only addresses the act of moving up or down a ladder, not working from a ladder.)

Really?  That's not what I read in the 268 standards for telecommunication.  But then I'm not the regulator - only the poor fool trying to figure out what actually needs to be done.

Bottom line is - just because OSHA does not regulate it, or states that for this specific industry or situation it's OK, does not make it so.  Accidents happen regardless of how much training you have, how many times you have done it, or your designation as "qualified."

That tower presents an unnecessary and undue risk to those two employees by its design.  The employees not using 100 percent fall protection increase the risk of a catastrophic event.  Engineer it out first, then require PPE.  Never rely on an employee to do what is safe for themselves.  Don't rely on OSHA for that matter either.

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Part 11: Air Products Wacky Misadventure

EPA contends Air Products has violated RCRA because they were sending their sulfuric acid back to the company they purchased it from.

That company - Agrifos - used the sulfuric acid to make fertilizer which they sold.

EPA contends the used sulfuric acid is "spent."

Spent sulfuric acid that is being recycled is a solid waste.

The spent sulfuric acid, because it has a pH < 2 is a hazardous waste - D002.

The spent sulfuric acid also contains 2,4-DNT above 0.13 mg/L which also makes it a hazardous waste - D030.

Air Products did not see it that way, contending: "[it] was a product that was purposefully produced since the inception of its Facility and that this product was not a solid waste or a hazardous waste."

EPA is correct based on the following:

1. The sulfuric acid was used and as a result of contamination could no longer serve the purpose for which it was produced without processing.  This made it meet the definition of "spent."
2. The "spent" sulfuric acid was being recycled as an ingredient in another process (Agrifos)
3. The recycling involved producing a fertilizer.
4. The fertilizer is designed to be placed on the ground.
5. Because the spent sulfuric acid was used to produce products that are applied to or placed on the land, this meets the definition of "used in a manner constituting disposal."
6. A "spent" material that will be "used in a manner constituting disposal" meets the definition of a solid waste.
7. Air Products did not make a hazardous waste determination or use an exclusion.
8. Because a solid waste was generated, the pH and 2,4-DNT parameters will make it a hazardous waste.

Moral of the story:

It's all about meeting or not meeting the definition of solid waste.  What you think sounds logical or reasonable or is sound has nothing to do with the process.  Once it meets the definition you are stuck there unless you can find an exclusion.  Once it becomes a solid waste then you must make a hazardous waste determination.  Based on that, you can then determine how and where it will be managed. 

This horse has now been beat to a pulp and can be discarded.  Hmmm, I wonder if it meets a hazardous waste definition?


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CHMM Party in Atlanta!

I am at the AHMP conference in Atlanta this week.

Computers have nerds, the environment has CHMMs.

It will be good to spend time with my cohorts (peeps to non-public health folks).  No one at my place of employment understands why I think all of this stuff is really cool.

Part 10: POTWs, domestic sewage, and your waste

Yeah, thats right, you heard me correctly in my last post.  Dump it down the drain and let the sewer folks take care of it.

After nine posts focusing on the minuscule differences between a product and a waste.  After all these paragraphs of describing nuanced definitions and how the EPA interprets them, I am telling you that it is OK to dump it down the drain.

Don't believe me?  Read 40 CFR 262.4(a)(1):

(a) Materials which are not solid wastes. The following materials are not solid wastes for the purpose of this part:

    (1)(i) Domestic sewage; and

    (ii) Any mixture of domestic sewage and other wastes that passes through a sewer system to a publicly-owned treatment works for treatment. ``Domestic sewage'' means untreated sanitary wastes that pass through a sewer system.

Remember how we addressed that word any way back in Part 3?  Well that same thing is in play here, along with the word other.  As long as what you put down the drain will mix with domestic sewage along the way and be treated by a publicly owned treatment works - or POTW - then your material is not a solid waste and therefore cannot be a hazardous waste.

So a 1.5 million dollar fine for making fertilizer with sulfuric acid and all that time they could have been sending it down the drain and through the sewer system to the city's POTW.

Yes.

OK, so there has got to be a catch, right?  Well...there sort of is, not really a catch but more of a requirement.  To discharge to a POTW, industrial dischargers (which Air Products would be considered) must get the permission from the POTW before they discharge anything down the sewer.  This is what is referred to as a pretreatment permit.

But what about discharging hazardous waste down the sewer?  That can't be legal?

Well you are correct, that's why if you discharge under a pretreatment permit you are not discharging hazardous waste.  Remember the first sentence in the exclusion:

Materials which are not solid wastes.

By discharging them under the pretreatment permit you keep them from becoming a solid waste.  To be a hazardous waste you must first be a solid waste.  No solid waste, no hazardous waste.

But it's a hazardous waste!  EPA said so in their Consent Decree!

Ahhh pilgrim, you are still not ready to jump down the rabbit hole.  RCRA-Land is a wonderful place once you accept its rules and thinking.  RCRA only has jurisdiction over hazardous waste.  Congress wrote a very specific definition of what a hazardous waste is, and that requires it to be a solid waste.  So although the EPA is willing to fine Air Products 1.5 million dollars, had they kept it from becoming a solid waste, they would have paid it little attention.

So you mean to tell me that the same material gets looked at differently depending on what you do with it?

Now you are catching on.  Bottom line for the EPA is to protect public health and the environment.  That's their mission.  But to do this they have to comply with the Law.  RCRA, in the case of hazardous waste, and the Clean Water Act (CWA) in the case of discharges.  Each one of these Laws required the EPA to develop regulations which had to be based on the intent of Congress.

Once a regulation is finalized, the EPA has to enforce it.  So in RCRA-Land the material makes you taller and in CWA-Land it makes you shorter.  In other words, if you come to a fork in the road, and you turn and end up in RCRA-Land you follow those rules, regardless of what you could do somewhere else.

Like I have said before, with RCRA, it's not about the hazard of the material but the definition.  With the CWA, it's all about the concentration of certain parameters being discharged.

Now whether or not this exclusion was available to Air Products is not known by me.  They may not have had a connection to the POTW or the POTW may have told them they don't want this waste.  But assuming otherwise, here is what might have happened had they pursued this exclusion.

• The POTW would have prohibited them from discharging the sulfuric acid unless the pH was greater than five.
• This could have been done a number of ways, but lets assume they decided to neutralize the sulfuric acid.  As long as they did it in a tank or container no RCRA permit would be required.
• Prior to treatment, they would have generated a hazardous waste and all the applicable standards in 40 CFR 262 would come into play until it was discharged into the sewer.

None of this is a deal breaker, provided the POTW would take the treated sulfuric acid once neutralized.

This now leaves the 2,4-DNT that remains.  Because we do not know the concentration it would be hard to speculate.  However, as long as the POTW can treat the material they receive AND it will not violate their NPDES permit AND it will not mess up their sludge...the POTW can pretty much take anything they want

Including stuff that under RCRA would be considered a hazardous waste.

Next Post: 10 condensed down to 1.  A summary


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Part 9: Part 266, Subpart C - Use Constituting Disposal

For the last eight posts we have delved into how the EPA came up with their allegation that Air Products' sulfuric acid was "spent" and a "hazardous waste."  Based on this designation, the EPA was able to file a complaint that there was a violation of RCRA that had taken place.

All of this was brought about by Air Products' failure to see their used sulfuric acid as meeting the definition of a solid waste.  Now looking at this from afar, one might reasonably conclude that it's not worth the potential fine to recycle anything that does not have a clearly defined exemption.  Someone else might look at this situation and get upset at how inflexible EPA is and that they tie the hands of a generator looking for an environmentally sound and economically beneficial means to manage a production process.

Like I said in my last post, you need to see it from a regulator's view point.  One thing that the EPA knew to be true, is that taking something and putting it on the ground could pose a much more significant public health or environmental concern then if you had disposed of it at a permitted hazardous waste facility.

When the EPA makes a regulation they have to think about what that something could be.  Using it, treating it, reclaiming it - all pose some additional risk.  But that risk is minimal compared to what happens if you place it on the ground.  Unfortunately regulations are difficult to write that can differentiate between what is OK and what is bad, so the EPA uses what are known as "loop holes" .....err....I mean "exclusions."

Exclusions attempt to address situations where the rule punishes sound environmental management techniques in an effort to prevent the regulated community from getting around the goal of the law.  Which, if you have forgotten, is to protect public health and the environment from the mismanagement of hazardous waste.

So for Air Products an exclusion was available for them that they could have looked into.  It was overlooked simply because they never went into the land of RCRA.  Jumping down the rabbit hole requires that you discard the material creating a solid waste.  Had they done that, they may have been able to exclude the sulfuric acid from being classified as a hazardous waste by managing under a different standard - Part 266, Subpart C - Use Constituting Disposal.  According to the EPA:

Part 266, Subpart C, regulates recyclable materials that are placed on the land either directly or after mixing with other materials. This type of reuse of a recyclable material is regulated as land treatment or landfilling when the material being applied to the land is a hazardous waste or contains a hazardous waste. The Agency regulates the placement of hazardous secondary materials on the land due to the similarity of this practice to simple land disposal.

In Air Products' case, because the sulfuric acid met the definition of a hazardous waste, any recycling that involved placing it on the ground would require the same degree of treatment as that required to go into a hazardous waste landfill.  There are a few conditions placed on materials - called "commercial hazardous waste-derived products" that are to be managed under Part 266 Subpart C:

1. They are made for the general public's use;
2. They have undergone a chemical reaction so as to be inseparable by physical means; and
3. They meet applicable Part 268 land disposal restrictions treatment standards.

All of these three conditions could have most likely been met, however, it was not Air Products sulfuric acid that had to meet them but the fertilizer produced by Agrifos.  Recycling in this manner must be a partnership between the generator and the producer of the commercial hazardous waste-derived product.

Here's the rub.  If, the producer does not keep their end of the bargain (the three conditions described previously), the exclusion was not met and the spent secondary material (e.g. sulfuric acid) goes back to being a hazardous waste.  This is the same sort of situation that befell Air Products.  Once deemed a hazardous waste, all the hazardous waste management stuff that wasn't done - because you thought it exempt - presents a situation where the EPA can rightly declare it as "mismanagement."

There is one bit of difference in the two situations in that materials destined to be managed under Part 266 Subpart C are fully regulated as hazardous waste prior to them being used.  So had Air Products lived up to their end, the mismanagement involving storage would not have happened.

Part 266 provides a special case for fertilizers that contain recyclable materials, these products are not subject to regulation provided they meet the applicable treatment standards in subpart D of Part 268 for each hazardous waste that they contain.

If Air Products had gone this route, EPA would have had little say in the matter provided Agrifos was living up to its end of the requirements, Air Products met all the 262 and 263 applicable regulations, and the 2,4-DNT would not leach out of the fertilizer at greater than 140 mg/kg as per the 268.48 Universal Treatment Standards.

OK, so not a walk in the park, but not a deal breaker either.  The point of all of this is to show how important it is to know what will happen to the material all the way to the end.  There are a lot of areas where things can get messed up, especially when you have to rely on someone else in the management process.  But that's no different than putting it on a manifest and sending it to a TSDF.  If they don't manage the waste properly it was your waste and you get stuck with the liability.

Now you may be saying to yourself heck with it, I'll just dump it down the drain and be rid of it!

Not a bad idea...and it's legal too!

Next Post: POTWs, domestic sewage, and your waste.  An almost perfect mix.


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Part 8: The EPA feels your pain

Now if after seven posts you are having a difficult time accepting the convoluted and confusing regulations when a perfectly usable material could be recycled, you are not the only one.  I think most people would agree that Air Products' sulfuric acid really could be managed as a product and not a waste and that by itself it posed no greater health or environmental harm than pure sulfuric acid.  If Agrifos was mismanaging it, well that's an issue to take up with them.

It's now sort of easy to see why Air Products wanted to manage this material in a way that would accommodate both the bottom line and be environmentally sound.  In a somewhat similar situation, involving solder instead of sulfuric acid, the EPA wrote:

"In your letter, you pointed out that used, slightly contaminated solder would have environmental impacts similar to those from unused solder. You are correct in pointing out that the federal hazardous waste regulations, as currently structured, can require vastly different levels of control based on what may appear to be minor details about the circumstances of a material's use or generation. We are concerned that our current distinction based on a material's use may not be valid, just as you raised in your letter."

The EPA then concluded:

"In response to important reasons (such as yours), we are currently involved in a major effort to reevaluate the federal definition of solid waste to determine if it functions as a barrier to environmentally sound recycling practices. One of the main objectives of the reassessment is to see if the controls imposed under RCRA can be better matched to the environmental risks that a material or process poses. [I] very much appreciate the issues you have raised and will ensure that they are considered as part of our broad assessment of the definition of solid waste."

Wow, they get it...they finally get it!  Only problem is, this was written in 1992!  But alas, we now have some relief for recyclable materials not becoming hazardous waste due to what the EPA admitted was "based on a distinction [that] may not be valid."

Enter the new and improved "Definition of Solid Waste Final Rule," October 2008.

Finally!  The EPA has addressed this problem.  Too late for Air Products, but good for the rest of us, right?  Well hold on there pilgrim!  You should know by now that it's never as good as it really needs to be.  Baby steps my good reader!  One baby step every 16 years.

And it is a good rule, not perfect or as inclusive as it should be, but it does do what it set out to do, that is, allow more materials to be recycled without forcing them to be classified as discarded making them solid waste, and - for some of them - hazardous waste.

But in the case of Air Products' spent sulfuric acid, it would not have changed a thing.  Why?  Because the same concerns are still etched into the thinking of the EPA.  You can now do this, this, and this.....unless the secondary materials are recycled by:

• use constituting disposal
• burning for energy recovery

Now there is a pretty good reason why it is done this way.  And if you think about it from a regulators point of view it makes perfect sense.  Most of us don't need to have a watchdog keep us in line, but the EPA has to consider not only what we environmentally conscious folks would never think of doing, but also what those who - unlike Woodsy Owl - don't give a hoot.  To say land disposal or burning is OK for recycling opens the door for everything to be recycled that way.

Yes there is a possibility that methyl-ethyl-bad-stuff could now be recycled under this new rule, but there are enough safeguards in place to minimize this.  On the other hand, allowing anything to be burned or placed on the ground puts that material in a place where it then could be transported to a human receptor or cause damage to the environment.

Well why not make exceptions for the stuff that's not going to cause a problem, like spent sulfuric acid used to make a fertilizer?  I mean it's not the sulfuric acid that's being put on the ground, it's the fertilizer made from it.

Good question!  And the EPA has an answer for that.

Next post: 40 CFR 266 Subpart C — Recyclable Materials Used in a Manner Constituting Disposal


The EPA has a pretty good Power Point presentation on the new Definition of Solid Waste Rule that's worth viewing.




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Part 7: Materials that are not solid waste when recycled

It seems pretty cut and dry now that EPA was correct in their allegation that Air Products "violated the Resource Conservation and Recovery Act [when it] sent spent sulfuric acid, a hazardous waste, to the nearby phosphoric acid facility owned by Agrifos Fertilizer, Inc."

After reading all the previous six posts, the evidence points to the fact that Air Products generated a spent material which was recycled in a manner constituting disposal.  This act, from generation to sending it to Agrifos caused the sulfuric acid to meet the EPA's definition of discarded.  And when a material is discarded it becomes a solid waste.  And because it is both corrosive (D002)  and contains 2,4-DNT (D030), it meets the definition of a hazardous waste as well.

But there is one more possibility that a sharp reader familiar with 40 CFR 261.2 might offer as a way out of this solid waste/hazardous waste quagmire;  Doesn't 261.2(e) give an exemption of sorts for certain recycling activities?

Why yes it does.  It's called materials that are not solid waste when recycled and was designed to make recycling available to generators without making them go down the solid waste/hazardous waste path.

Remember, if it doesn't meet the definition of a solid waste it cannot become a hazardous waste regardless of how hazardous or dangerous the material may be.

So EPA brings in three more questions to ask regarding the recycling method:

1. Will it be used or reused as ingredients in an industrial process to make a product; or
2. Will it be used or reused as effective substitutes for commercial products; or
3. Will it be returned to the original process from which they are generated

Well that looks pretty dang awesome!  Why didn't Air Products use either No. 1 or No. 2 in their defense?

Well you know that old adage about the Lord giveth and he taketh away?  Well same thing is in play here as well.  You see, all three of those methods kick you out of meeting the definition of discarded which is what's needed to make your stuff a solid waste.  Simply put, if you recycle by any of those three methods your material is - as the title states - not solid waste when recycled.

Unless......

• The material is being reclaimed before reusing it; or
• The material is used in a manner constituting disposal or used to produce products that are applied to the land; or
• The material is burned for energy recovery, used to produce a fuel, or contained in fuels; or
• the material is accumulated speculatively;

Doh!

Notice a theme here?  Remember this thinking goes back 30 years or more.  EPA was concerned about materials ending up in the ground where they could contaminate drinking water supplies, put into the air where they could be inhaled, handled by untrained personnel where they could be mismanaged, or stored for long periods of time where they could leak or catch fire or impact the public.

If you could recycle it without doing that, EPA said go for it.  In the case of Air Products' sulfuric acid, because the end result was the production of a fertilizer that was designed to be "applied to the land," 261.2(e) does not apply.

Next post: EPA feels your pain.


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Part 6: The how it is recycled is the key

In my last post we (hopefully) decided on two things regarding Air Products' used sulfuric acid.

1. It meets the EPA definition of being recycled 
2. It meets the EPA definition of spent

The EPA in their Consent Decree "alleges that Air Products...from at least 1990 until September 4, 2009, sent spent sulfuric acid, a hazardous waste, to the nearby phosphoric acid facility owned by Agrifos Fertilizer, Inc."  Whether or not it's a hazardous waste as the EPA alleges, depends on if the spent sulfuric acid meets the definition of a solid waste, which Air Products maintains "it is not."

Now it may seem that after five lengthy posts I could have gotten to this point quicker and that all I am doing is whipping a dead horse.  Maybe so, but I have seen this mistake over and over again and it is based almost always on a misunderstanding of when a material becomes a solid waste.

So had Air Products made the determination that the sulfuric acid was spent would it have changed anything?  Probably not, simply because they never viewed the sulfuric acid as anything other than a usable product.  So when faced with a similar situation, what do you do?  Again...forget what you think and concentrate on meeting the definitions.  If you meet them you are...if you do not - you are off the hook at least with RCRA.

Because Air Products was sending the spent sulfuric acid to Agrifos, this constituted recycling.  Since they are the ones doing the recycling, we need to ask how it is going to be recycled by them.  This is where the information needed to be asked usually comes to an abrupt halt.  When you don't look at the how and assume it's product and really none of your business how they use it, you skip over the four questions that will determine if it meets the definition of discarded, which if you remember, is the criteria necessary to make a solid waste determination.  

When a material is designated as spent - and - it is destined to be recycled, four additional questions must then be asked:

1. Will the spent material be burned to recover energy, used to produce a fuel or are otherwise contained in fuels?
2. Will the spent material be Reclaimed? 
3. Will the spent material be accumulated speculatively?  Can you show that the spent material is potentially recyclable and has a feasible means of being recycled - and - that during the calendar year the amount recycled equals at least 75 percent?
4. Will the spent material be applied to or placed on the land in a manner that constitutes disposal, or used to produce products that are applied to or placed on the land or are otherwise contained in products that are applied to or placed on the land?

In the case of Air Products' sulfuric acid:

• Is it spent?  Yes
• Will it be recycled?  Yes
• Will the recycling produce a product that is to be applied or placed on the ground?  Yes...the fertilizer produced by Agrifos!

Now looking at Table 1 form 40 CFR 261.2....

...you will notice that Spent Materials has an (*) in each of the four columns indicating that if it is a spent material AND recycled in one of the three ways or accumulated speculatively, it is a solid waste.

So what we now know about Air Product's sulfuric acid is this:

It is spent and it is a solid waste.

Which means the EPA was correct in their allegation. Unless.........

Next Post: Materials that are not solid waste when recycled.

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Part 5: You say perfectly good stuff. They say spent

Our question now revolves around two points of contention. Was the EPA correct in calling Air Products' sulfuric acid "spent" and, was Air Products incorrect when they claimed the sulfuric acid was "not a solid waste?”

The answer hinges on the word spent and how the sulfuric acid was being recycled. So first things first. In my last post we looked at two possibilities for the group into which their sulfuric acid could fall. We decided that by-products could work but wanted to take our chances with the category called "spent materials." If we could argue that the sulfuric was not a by-product and could show it was not a spent material, well then it would not meet the definition of a solid waste as long as we recycled it.

Now we know from the Consent Decree that EPA calls the sulfuric acid "spent" and classified it as a solid waste - which - because it was an acid and contained 2,4-DNT, makes it a hazardous waste. We know also that Air Products contends the sulfuric acid was a "product that was purposefully produced since the inception of its Facility and that this product was not a solid waste or a hazardous waste." The decision was made by Air Products to not call the sulfuric acid they produced a "spent material" for reasons I can only speculate...

Perhaps they felt the sulfuric acid was not contaminated enough to call it a waste since it could be used as a feedstock by another company.

Perhaps they felt the term spent did not attach to the sulfuric acid because they had planned for it to be sent to Agrifos as a feedstock for their use.

Perhaps they saw the sulfuric acid as just another product they produced and the terms spent and recycled did not apply since those terms denote a waste.

The EPA on the other hand saw things differently based on how they defined the term spent.

"used and as a result of contamination can no longer serve the purpose for which it was produced without processing?"

So asking the following two questions:

1. Was the sulfuric acid used by Air Products. Yes
2. Could it no longer serve its purpose because of contamination? Err...Y...

Wait!! What if you make the argument that its not because of contamination that they can't use it, it's because of its potency! You keep whining about how it's all about the definition. So they used the sulfuric acid and it can no longer be used at that concentration - contamination plays no part in their decision as to why it can no longer be used. If it's not contaminated it's not spent! If it's not spent it's not a solid waste. If it's not a solid waste it cannot be a hazardous waste! The EPA was wrong!

Nicely played pilgrim! However, the EPA begs to differ on what that word "contaminated" means.

"Regarding whether a material must be nonfunctional to meet the definition of spent material, the fact that a material can continue to be used for its original purpose is not relevant to the issue of whether or not it is a spent material when it is clear from the facts that the material will not be used but instead will be treated by reclamation. The mere potential for continued original use does not preclude a material from being defined as spent. [t]he fact that it is actually removed from service establishes, as to this generator, that it can no longer serve its original purpose." 

The EPA further goes on to state:

"We have consistently interpreted [the spent material] definition as meaning "materials that have been used and are no longer fit for use without being regenerated." 

and...

"We thus consider "contamination," as used in the definition of spent material, to be any impurity, factor, or circumstance which causes the material to be taken out of service for reprocessing." 

OK, so far every one of these explanations has within them the caveat that it is to be reclaimed, regenerated, or reprocessed. What if I am not going to do any of those things and I could use it as is? Well that sends you down a very different path that we will address later. Right now the question is on this particular sulfuric acid and wether or not it meets the definition of spent.  So asking the question.

Can Air Products use the sulfuric acid for any other process without reclaiming it, regenerating it, or reprocessing it?  

Well we don't have that inside information available to us, so all we can go on is that since they could no longer use it themselves, the assumption is that reclaimation, regeneration, or reprocessing would be required in order to make the sulfuric acid usable for them.  Because they cannot use it in its present condition because of contamination -  it becomes a spent material.

Right now we know two things about Air Products' used sulfuric acid.

1. It meets the EPA definition of being recycled 
2. It meets the EPA definition of spent 

Now whether it meets the definition of a solid waste depends on one more series of questions revolving around how the sulfuric acid is being recycled.

Next post: The three recycling methods that cause your recyclable material to become a solid waste.


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Part 4: How the EPA looks at recycling under RCRA

In my last post, I hopefully was able to make the point that the used sulfuric acid produced by Air Products and sent to Agrifos for use in making a fertilizer met the EPA definition of recycled.

The act of recycling was met regardless of Air Products’ contention that it had been “purposefully produced since inception of its facility.”  Because the sulfuric acid was produced from a process – making polyurethane and hydrogen gas products – its use to make another product – fertilizer – meant it was being “used or reused.”  It was at that point that the used sulfuric acid fell into the realm of being recycled.

As with the word waste and discarded, the term recycled brings about a different connotation then how the EPA sees it.  Most people would - logically - see recycling as good.  Especially now with the move towards being green and reducing our impact on ol’ mother earth.  Recycling just does not fit comfortably along sides the words waste and discarding.

And therein lies one of the biggest reasons most generators make the claim that what they have is more product-like than waste-like. That’s not how the EPA saw it way back when it was formulating the regulations:

“The [solid waste] definition does not explicitly state that a material being recycled (or destined for recycling) is a solid waste and, if hazardous, a hazardous waste.  However, reading the definition in conjunction with other parts of the [RCRA] statute and with legislative history (as well as with subsequent expressions of congressional intent) makes it clear that Congress indeed intended that materials being recycled or held for recycling can be wastes and, if hazardous, hazardous waste.”

It’s not that Congress or  the EPA was against recycling, it’s just that the material to be recycled could pose a substantial risk to human health and the environment.  Since it was actually waste to a business, the EPA reasoned – correctly in my opinion – it would not be handled and managed as stringently and protectively as their feedstock chemicals, especially if the practices of the 60’s and 70s were any indicator.

By making a material to be  recycled a solid waste, materials that would then meet the definition of a hazardous waste would be forced to be managed in a stringent and protective manner.  Unfortunately, that entailed much more sever requirements and liability than on the actual feedstock chemicals before they became identified as a solid waste.  So there the EPA was, faced with figuring out how much leeway to give generators, meet Congress’ concern and objective, and come up with something that made sense in terms of regulations.

It is at this point that EPA got a little more concise on what the words any and recycling meant in terms of making a recyclable material meet the definition of a solid waste.  In 40 CFR 261.2(c) EPA divides certain waste streams that could be recycled into five different groups:

1. Spent Materials
2. Sludges
3. By-Products
4. Commercial Chemical Products
5. Scrap metal

These five groups are commonly refered to as secondary materials which the EPA defines as:

"any material that is not the primary product of a manufacturing or commercial process, and can include post-consumer material, post-industrial material, and scrap."

Each one of these five secondary materials has (surprise! surprise!) its own definition.  Since we have concluded previously that Air Products’ used sulfuric acid meets the definition of recycling, we need to ask the question: does it fit into one of these five groups?

We already eliminated previously the designation of the sulfuric acid as a sludge, and we can also eliminate it from classification as a scrap metal.  In looking at the definition for a Commercial Chemical Product (CCP) we see that the EPA...:

“interprets the category of commercial chemical products to include all types of unused commercial products, whether or not they would commonly be considered chemicals.”

Well since we know that the sulfuric acid is "used" this eliminates CCPs leaving Spent Materials and By-Products as the only two remaining categories.  If the used sulfuric acid does not fall into one of those two remaining categories it will not meet the requirement of recycling that creates a solid waste.  I would say "cross your fingers" but you already know the outcome.

So is Air Products used sulfuric acid a by-product?

"A ``by-product'' is a material that is not one of the primary products of a production process and is not solely or separately produced by the production process. Examples are process residues such as slags or distillation column bottoms."

Hmm....well an argument could be made that the sulfuric acid was a by-product from the production of polyurethane and hydrogen gas products.  But if we made that argument, then the used sulfuric acid would be included in one of the five recyclable material groups bringing it closer now to meeting the definition of a solid waste.

So lets say it's not a by-product, which leaves the remaining secondary material group called "spent materials" to be addressed. And now we ask the question:

Was the sulfuric acid "used and as a result of contamination can no longer serve the purpose for which it was produced without processing?"

If you are now wise to how this game is played, you will be asking "what does a result of contamination mean?"

Good question....and EPA has an answer for you.

Next post: How EPA looks at the term "Spent,"

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Part 3: I didn't think I was discarding when I call it a product...

In my last post, I asked the question - did Air Products err when they claimed their used sulfuric acid was a “product that was purposefully produced since inception of its facility and that this product was not a solid waste?”

Let me ask another question.  If some other company set out to make a product that consisted of sulfuric acid and just a smidge of 2,4-DNT.  Let’s also say that there is a market for this particular product.  Now If you compared the two products together and you found that there was no difference in chemical makeup, potency, or usefulness, would you say that the two products are identical?

If you said “yes” then you are not ready to jump down the rabbit hole with Alice and partake in the many wacky adventures in RCRA-Land.  They are the same but not the same because the sulfuric acid containing a smidge of 2,4-DNT produced by Air Products will, unfortunately, be found to meet the EPA definition of “discarded.”

As I said in my last post, it has nothing to do with the chemical and everything to do with the definition.  So now it comes down to how does the EPA define discarded?  Remember also, that to become a hazardous waste you must first meet the definition of a solid waste, which according to the law – called RCRA – means:

any garbage, refuse, sludge, and other discarded material.......

So there you have it “any” and “discarded.”  So in black and white terms, anything that is discarded is a solid waste.  There can really be no discussion on what “any” means, so what needs to be figured out is how “discarded” is defined.  It is at this point - just like with the word “waste” - that you need to forget about what you think discarded means and accept what EPA has - through lots of discussion and public commenting - decided it means.

In Air Products situation with their used sulfuric acid it works like this:

• Is the used sulfuric acid going to be abandoned by being placed directly onto or into the land?  No
• Is the used sulfuric acid going to be abandoned by being placed directly onto or into the water?  No
• Is the used sulfuric acid going to be abandoned by being burned or incinerated?  No
• Is the used sulfuric acid going to be abandoned by Accumulating, storing, or treating (but not recycling) it before or in lieu of being abandoned by being placed onto the land or into the water, burned, or incinerated?   No
• Is the sulfuric acid a military munitions?  Nope
• Is the used sulfuric acid a dioxin containing waste stream identified by the EPA in 40 CFR 262.31 with the EPA Waste Number F022, F023, F026, and F028?  Ahhhh…..No
• Is the used sulfuric acid being fed to a halogen acid furnace?  No on that as well.
• Is the used sulfuric acid being recycled by being used or reused as an ingredient or intermediate in an industrial process to make a product.  Another way to ask this question: did the used sulfuric acid come from one process and is it going to be used as feedstock in another process? Yes

At this point, Air Products’ used sulfuric acid that is being sent to Agrifos for their use in making a fertilizer meets the EPA definition of “recycled.”  And when recycled as described in 261.2(c) would meet the definition of “discarded” - which is the criteria necessary to become a solid waste - which then makes the used sulfuric acid susceptible to being classified as a hazardous waste.

So did Air Products open Pandora’s box o’ RCRA fun when they decided that their used sulfuric acid was a “product that was purposefully produced since inception of its facility” to be sent to Agrifos for their use to make a fertilizer?  So far what we know is this.  Air Products’ used sulfuric acid meets the EPA definition of recycled.

Find out what happens when the next exciting not-even-close-to-a-conclusion post on making a solid waste determination continues.

Am I dragging this out?  Well you can be the judge of that.  Here’s my response though.  It is complex and confusing and when you jump down the rabbit hole you need to do it with the understanding of being correct.  Otherwise a $1.5 million dollar fine could be in your future - not because you made a mistake - but because you assumed you understood the process.  Keep reading and we will get there.  I promise.

Next post: When does recycling make a solid waste?

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Part 2: Waste is not in the eye of the beholder

The biggest single issue leading to what was characterized by the EPA as a “mismanagement of hazardous waste” by Air Products and their used sulfuric acid surrounds the word “waste” itself.

Waste denotes something that has no value.  In the business world, waste denotes something different, that is, a cost to the bottom-line.  Now when coupled together, the idea of “no value” and “cost” it becomes easy to see how a business like Air Products could come to see the sulfuric acid they had used in a process as something other than a waste, especially since their neighbor, Agrifos, could utilize this acid in making one of their products.

From a business perspective, this made perfect sense.  Agrifos wanted the acid making it have value, and in so doing, reduced Air Products cost for managing it.  Win, win!  Now the issue could be made that the used sulfuric acid posed an increase risk to public health or the environment, but that issue was never raised by the EPA or the state of Texas.  Like I said in my last post, there is no fundamental difference in hazard or property between Air Products’ used sulfuric acid and new sulfuric acid used to make the fertilizer. It was not Air Product’s sulfuric acid that was at issue, it was the use of acids at “high risk mineral processing facilities” such as Agrifos.

So why go after Air Products?  That’s a question for a different type of blog.  This blog is all about the process.  Regardless of the why, the question remains, did Air Products err when they claimed their used sulfuric acid was a “product that was purposefully produced since inception of its facility and that this product was not a solid waste?”

There is a difference between making a product out of chemicals and making a product out of chemicals used to make a product.  It is not the chemical, the characteristics, or the hazard to health or the environment that comes into play.  What determines when - or if - a material is a hazardous waste comes down first to when the definition of a solid waste is met.

And there’s that word “waste” again.  It is at this point that you need to forget about what you understand waste to mean and settle into accepting what RCRA has to say about it.

• The term ‘‘hazardous waste’’ means a solid waste, or combination of solid wastes......
• The term ‘‘solid waste’’ means any garbage, refuse, sludge, and other discarded material.......

First and foremost, to become a hazardous waste you must first become a solid waste- or - looking at it from a different angle - if you meet the definition of a solid waste you could also meet the definition of a hazardous waste.

So the question must always focus on did I meet the definition of a solid waste?  If you can keep it out of that definition then the identification as a hazardous waste can never be met, regardless of how hazardous or dangerous it is.  As I tell my students - it’s not about hazard it’s all about definition.

So there is Air Products with this acid that they used to make the polyurethane and hydrogen gas products they sell.  And it is at this point that a solid waste Determination must be made – regardless of any potential value, recycling, cost savings, prudency, or environmental soundness that may be applicable.  Does the sulfuric acid that was used to make a product meet the definition of a solid waste?

• Is it garbage?   No
• Is it refuse?   No
• Is it a sludge? No
• Is it being discarded?  Ahhh…what does that mean?

That’s a good question, for when Congress gave the EPA their definition of a solid waste, they did not give them a definition for “discarded.”  So EPA defined what the term "discarded" would mean.  So once something is discarded according to the EPA it becomes a solid waste, and then all the fun begins.

Next post: Discarded means exactly what EPA says it does.

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Part 1: You say product, they say waste

An interesting court case came to my attention today and it got me thinking about how critical the solid waste determination step is.  A company, Air Products, purchased sulfuric acid from another company, Agrifos, and used that sulfuric acid in one of their manufacturing process.  Air Products then gave the used sulfuric acid back to Agrifos where it was used to make fertilizer.  On the surface, most folks would say "And what's wrong with that?  It's not a waste if it's still usable, besides...isn't that recycling?"

Well that's the problem.  What looks and sounds logical or reasonable often runs afoul of the regulations.  I teach all my students to “know thy waste” which, simply put, means know everything about every waste produced.  Regardless of how you choose to handle it, the first question must always be “does it meet the definition of a hazardous waste?”

Once this is known, the next question is “what are my options for getting rid of it?”  On first look, this appears to be backwards, since the method of management will determine if it must be handled as a hazardous waste or may be managed less stringently.  The knowledge that it meets the definition of a hazardous waste should be made independently from the disposal or management method proposed.

In the case of Air Products and their “spent sulfuric acid” a $1.5 million dollar fine could have been avoided had they worked this waste stream through all the steps leading to a hazardous waste determination.  Unfortunately, the hazardous waste determination process is not very intuitive and ripe with many incorrect assumptions based on not understanding the difference between a chemical that is a product and one that is a waste.

There is absolutely no difference in the hazard or chemical property of the spent acid used by Agrifos when compared to new sulfuric acid.  Yes it is true that Air Product’s spent sulfuric acid also contained 2,4-DNT above 0.13 mg/L but that contaminant did not play any real part in the EPA’s enforcement effort.  In fact, had the 2,4-DNT been absent, the end result would still have been the same.

So if there is no difference between spent sulfuric acid and new sulfuric acid, why all the fuss?  Well the fuss is because by regulation they are different.  And therein lies the problem for most generators, it just doesn’t make sense.  Here Air Products has something that is seen as valuable by another company, why can’t they treat it like a product and not a waste?

There is a bit of back story missing that is not found on the EPA’s web site or in the Consent Decree that would provide the needed information to see if Air Products erred when they gave the spent acid to Agrifos  (I have sent an email asking for more info, and if it comes I’ll print their response.)  So, one must assume, based on the fact that there is a 1.5 million dollar fine and a Consent Decree, that the necessary requirements to manage it as “product” were not being met.

This being the case, it all came down to EPA’s contention that the sulfuric acid was spent.  Once that became their determination, Air Product’s method of sending the sulfuric acid to Agrifos became tantamount to illegal land disposal, the same as if they just up and dumped it on the ground.  That’s what they did, but that’s not what they did.

Huh?

And now you see the problem for companies like Air Products – this just does not make any sense when you look at it all the way through.

• Does Agrifos make fertilizer?   Yes 
• Does Agrifos use sulfuric acid to make their fertilizer?  Yes
• Does the fertilizer go on the ground?  Yes
• Is it legal for fertilizer made with sulfuric acid to go on the ground?   Yes 
• Did Air Products provide sulfuric acid to Agrifos?   Yes
• Did Agrifos use that sulfuric acid to make fertilizer?  Yes
• Was that fertilizer made to be put on the ground?  Yes

Well that fertilizer - because it is designed to be placed on the ground - makes Air Products' sulfuric acid a hazardous waste.

Now wait just a cotton-picken minute there Pilgrim!  That makes no sense at all!

Yup, you’re right, which is why you can see how easily it was for Air Products to go down a path that created this big fat fine and the embarrassment of having their name plastered all over a Consent Decree for what the EPA (nicely enough) calls “hazardous waste mismanagement.”  They thought they were recycling, win for them win for Agrifos, a beneficial use of what would otherwise be a waste, which to most everyone looking at it would take it from waste status and put it in product status.  But it doesn't work that way.

Next post: Why the Solid Waste Determination is a really, really, really important step.