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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