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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