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.

.