Part 9: Part 266, Subpart C - Use Constituting Disposal

For the last eight posts we have delved into how the EPA came up with their allegation that Air Products' sulfuric acid was "spent" and a "hazardous waste."  Based on this designation, the EPA was able to file a complaint that there was a violation of RCRA that had taken place.

All of this was brought about by Air Products' failure to see their used sulfuric acid as meeting the definition of a solid waste.  Now looking at this from afar, one might reasonably conclude that it's not worth the potential fine to recycle anything that does not have a clearly defined exemption.  Someone else might look at this situation and get upset at how inflexible EPA is and that they tie the hands of a generator looking for an environmentally sound and economically beneficial means to manage a production process.

Like I said in my last post, you need to see it from a regulator's view point.  One thing that the EPA knew to be true, is that taking something and putting it on the ground could pose a much more significant public health or environmental concern then if you had disposed of it at a permitted hazardous waste facility.

When the EPA makes a regulation they have to think about what that something could be.  Using it, treating it, reclaiming it - all pose some additional risk.  But that risk is minimal compared to what happens if you place it on the ground.  Unfortunately regulations are difficult to write that can differentiate between what is OK and what is bad, so the EPA uses what are known as "loop holes" .....err....I mean "exclusions."

Exclusions attempt to address situations where the rule punishes sound environmental management techniques in an effort to prevent the regulated community from getting around the goal of the law.  Which, if you have forgotten, is to protect public health and the environment from the mismanagement of hazardous waste.

So for Air Products an exclusion was available for them that they could have looked into.  It was overlooked simply because they never went into the land of RCRA.  Jumping down the rabbit hole requires that you discard the material creating a solid waste.  Had they done that, they may have been able to exclude the sulfuric acid from being classified as a hazardous waste by managing under a different standard - Part 266, Subpart C - Use Constituting Disposal.  According to the EPA:

Part 266, Subpart C, regulates recyclable materials that are placed on the land either directly or after mixing with other materials. This type of reuse of a recyclable material is regulated as land treatment or landfilling when the material being applied to the land is a hazardous waste or contains a hazardous waste. The Agency regulates the placement of hazardous secondary materials on the land due to the similarity of this practice to simple land disposal.

In Air Products' case, because the sulfuric acid met the definition of a hazardous waste, any recycling that involved placing it on the ground would require the same degree of treatment as that required to go into a hazardous waste landfill.  There are a few conditions placed on materials - called "commercial hazardous waste-derived products" that are to be managed under Part 266 Subpart C:

1. They are made for the general public's use;
2. They have undergone a chemical reaction so as to be inseparable by physical means; and
3. They meet applicable Part 268 land disposal restrictions treatment standards.

All of these three conditions could have most likely been met, however, it was not Air Products sulfuric acid that had to meet them but the fertilizer produced by Agrifos.  Recycling in this manner must be a partnership between the generator and the producer of the commercial hazardous waste-derived product.

Here's the rub.  If, the producer does not keep their end of the bargain (the three conditions described previously), the exclusion was not met and the spent secondary material (e.g. sulfuric acid) goes back to being a hazardous waste.  This is the same sort of situation that befell Air Products.  Once deemed a hazardous waste, all the hazardous waste management stuff that wasn't done - because you thought it exempt - presents a situation where the EPA can rightly declare it as "mismanagement."

There is one bit of difference in the two situations in that materials destined to be managed under Part 266 Subpart C are fully regulated as hazardous waste prior to them being used.  So had Air Products lived up to their end, the mismanagement involving storage would not have happened.

Part 266 provides a special case for fertilizers that contain recyclable materials, these products are not subject to regulation provided they meet the applicable treatment standards in subpart D of Part 268 for each hazardous waste that they contain.

If Air Products had gone this route, EPA would have had little say in the matter provided Agrifos was living up to its end of the requirements, Air Products met all the 262 and 263 applicable regulations, and the 2,4-DNT would not leach out of the fertilizer at greater than 140 mg/kg as per the 268.48 Universal Treatment Standards.

OK, so not a walk in the park, but not a deal breaker either.  The point of all of this is to show how important it is to know what will happen to the material all the way to the end.  There are a lot of areas where things can get messed up, especially when you have to rely on someone else in the management process.  But that's no different than putting it on a manifest and sending it to a TSDF.  If they don't manage the waste properly it was your waste and you get stuck with the liability.

Now you may be saying to yourself heck with it, I'll just dump it down the drain and be rid of it!

Not a bad idea...and it's legal too!

Next Post: POTWs, domestic sewage, and your waste.  An almost perfect mix.


.