I'm not sure how Gallo Glass manages the EP sludge at their facility. All I have to go on is the DTSC complaint, and that is heavily biased towards the findings the DTSC claims.
In the complaint, the DTSC acknowledges that HSC 25142.2 is in play:
The DTSC then bolsters its position on recycling with this:
It appears to me, that the DTSC takes issue with putting the EP sludge back into the process. Why? is anyone's guess here. Perhaps the arsenic, cadmium, lead, and selenium above TCLP thresholds gives them concern. Though they state in their press release that they have "no evidence that consuming wine stored in these bottles poses a health threat," the thought of putting that stuff - that waste that would be hazardous waste - into wine bottles could be seen as off-putting.
However, if I understand the process Gallo Glass is using, what goes into the EP air pollution control device comes from the raw materials used to make the bottles. In other words, those four metals are in the raw product that creates the EP sludge. Unless the EP sludge is produced from a separate process where those metals are added, the EP sludge would - to me - have the same characteristics as the raw material.
What's important here, if a public health concern, or from DTSC's position, the protection of public health, is what leaches out of the bottles that are made with the EP sludge as an ingredient. I would guess that this has been looked at. The last thing any wine maker would want is to have their product meet the definition of a hazardous waste because it sat in a glass bottle.
Looking at this complaint objectively, it seems the DTSC is unsure of this, though they have had plenty of time to TCLP the wine bottles to see if the EP sludge is impacting the wine that is consumed. Based on their press release, I am guessing that they did sample the glass as they claim they "have no evidence that consuming wine stored in these bottles poses a health threat."
Why the DTSC went after Gallo Glass regarding this process with such gusto seems very heavy-handed. I can find no reason to view the addition of the EP sludge back into the process as anything other than a bona fide recycling process. I can see nothing in the complaint that leads me to see this as "sham recycling." Perhaps Gallo Glass failed to do this in the first place, or failed to respond in a forthright way.
I think the DTSC will not come out a winner on the claim of "surrogate disposal." They probably will get Gallo Glass on the technicality of HSC 25143.9 which states a "recyclable material shall not be excluded from classification as a waste ...unless all of the following requirements are met."
The complaint does provide documentation that EP sludge was not adequately contained. They did get them for daily inspection, signage, employee training, secondary containment, contingency plan, and for failing to obtain a written assessment EP sludge silo tank and its associated ancillary equipment and containment system. They have to do that as part of HSC 25143.9.
What I did read in number 35 was "The EP sludge that did not make it into the silo or furnace was either unlawfully released into the environment or disposed of as a hazardous waste to an authorized landfill. The only issue here is "unlawfully released into the environment" as the furnace is recycling and the landfill is the only legal disposal option for EP sludge not recycled.
The complaint also states:
This may seem a little trivial, but the exemption is only for EP sludge that is recycled. If it is not recycled, it must be managed as a hazardous waste. So this "into the environment" they noticed becomes a big deal for that particular EP sludge. Remember, in California HSC 25143.9 has specific management requirements in order to get exclusion.
So there you have it. 12 posts later and I am done making sausage. I know I said I would talk about the used oil issue, but I changed my mind. It took me 12 posts just to discuss the recycling requirement for the EP sludge
Bottom line. DTSC is wrong on the surrogate disposal claim and Gallo Glass needs to get their house in order and manage the EP sludge as if it is a hazardous waste. That solid waste exclusion goes away real easy if you fail to recycle or manage it correctly.
Thanks for reading if you got this far. I hope it helps you understand the complexity of a simple activity such as recycling.