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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