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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