Part 7: Materials that are not solid waste when recycled

It seems pretty cut and dry now that EPA was correct in their allegation that Air Products "violated the Resource Conservation and Recovery Act [when it] sent spent sulfuric acid, a hazardous waste, to the nearby phosphoric acid facility owned by Agrifos Fertilizer, Inc."

After reading all the previous six posts, the evidence points to the fact that Air Products generated a spent material which was recycled in a manner constituting disposal.  This act, from generation to sending it to Agrifos caused the sulfuric acid to meet the EPA's definition of discarded.  And when a material is discarded it becomes a solid waste.  And because it is both corrosive (D002)  and contains 2,4-DNT (D030), it meets the definition of a hazardous waste as well.

But there is one more possibility that a sharp reader familiar with 40 CFR 261.2 might offer as a way out of this solid waste/hazardous waste quagmire;  Doesn't 261.2(e) give an exemption of sorts for certain recycling activities?

Why yes it does.  It's called materials that are not solid waste when recycled and was designed to make recycling available to generators without making them go down the solid waste/hazardous waste path.

Remember, if it doesn't meet the definition of a solid waste it cannot become a hazardous waste regardless of how hazardous or dangerous the material may be.

So EPA brings in three more questions to ask regarding the recycling method:

1. Will it be used or reused as ingredients in an industrial process to make a product; or
2. Will it be used or reused as effective substitutes for commercial products; or
3. Will it be returned to the original process from which they are generated

Well that looks pretty dang awesome!  Why didn't Air Products use either No. 1 or No. 2 in their defense?

Well you know that old adage about the Lord giveth and he taketh away?  Well same thing is in play here as well.  You see, all three of those methods kick you out of meeting the definition of discarded which is what's needed to make your stuff a solid waste.  Simply put, if you recycle by any of those three methods your material is - as the title states - not solid waste when recycled.

Unless......

• The material is being reclaimed before reusing it; or
• The material is used in a manner constituting disposal or used to produce products that are applied to the land; or
• The material is burned for energy recovery, used to produce a fuel, or contained in fuels; or
• the material is accumulated speculatively;

Doh!

Notice a theme here?  Remember this thinking goes back 30 years or more.  EPA was concerned about materials ending up in the ground where they could contaminate drinking water supplies, put into the air where they could be inhaled, handled by untrained personnel where they could be mismanaged, or stored for long periods of time where they could leak or catch fire or impact the public.

If you could recycle it without doing that, EPA said go for it.  In the case of Air Products' sulfuric acid, because the end result was the production of a fertilizer that was designed to be "applied to the land," 261.2(e) does not apply.

Next post: EPA feels your pain.


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