Part 6: The how it is recycled is the key

In my last post we (hopefully) decided on two things regarding Air Products' used sulfuric acid.

1. It meets the EPA definition of being recycled 
2. It meets the EPA definition of spent

The EPA in their Consent Decree "alleges that Air Products...from at least 1990 until September 4, 2009, sent spent sulfuric acid, a hazardous waste, to the nearby phosphoric acid facility owned by Agrifos Fertilizer, Inc."  Whether or not it's a hazardous waste as the EPA alleges, depends on if the spent sulfuric acid meets the definition of a solid waste, which Air Products maintains "it is not."

Now it may seem that after five lengthy posts I could have gotten to this point quicker and that all I am doing is whipping a dead horse.  Maybe so, but I have seen this mistake over and over again and it is based almost always on a misunderstanding of when a material becomes a solid waste.

So had Air Products made the determination that the sulfuric acid was spent would it have changed anything?  Probably not, simply because they never viewed the sulfuric acid as anything other than a usable product.  So when faced with a similar situation, what do you do?  Again...forget what you think and concentrate on meeting the definitions.  If you meet them you are...if you do not - you are off the hook at least with RCRA.

Because Air Products was sending the spent sulfuric acid to Agrifos, this constituted recycling.  Since they are the ones doing the recycling, we need to ask how it is going to be recycled by them.  This is where the information needed to be asked usually comes to an abrupt halt.  When you don't look at the how and assume it's product and really none of your business how they use it, you skip over the four questions that will determine if it meets the definition of discarded, which if you remember, is the criteria necessary to make a solid waste determination.  

When a material is designated as spent - and - it is destined to be recycled, four additional questions must then be asked:

1. Will the spent material be burned to recover energy, used to produce a fuel or are otherwise contained in fuels?
2. Will the spent material be Reclaimed? 
3. Will the spent material be accumulated speculatively?  Can you show that the spent material is potentially recyclable and has a feasible means of being recycled - and - that during the calendar year the amount recycled equals at least 75 percent?
4. Will the spent material be applied to or placed on the land in a manner that constitutes disposal, or used to produce products that are applied to or placed on the land or are otherwise contained in products that are applied to or placed on the land?

In the case of Air Products' sulfuric acid:

• Is it spent?  Yes
• Will it be recycled?  Yes
• Will the recycling produce a product that is to be applied or placed on the ground?  Yes...the fertilizer produced by Agrifos!

Now looking at Table 1 form 40 CFR 261.2....

...you will notice that Spent Materials has an (*) in each of the four columns indicating that if it is a spent material AND recycled in one of the three ways or accumulated speculatively, it is a solid waste.

So what we now know about Air Product's sulfuric acid is this:

It is spent and it is a solid waste.

Which means the EPA was correct in their allegation. Unless.........

Next Post: Materials that are not solid waste when recycled.

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