If you read my 2010 post on a similar case of solid waste determination being the crux of the complaint, you will see that I sided with the EPA's contention. I don't have a dog in this hunt, I go where the evidence takes me.
I happen to agree with Sherlock's reasoning. Gallo Glass generates EP sludge when they produce glass bottles. That EP sludge came from the process and is being returned to the process.
For the DTSC to claim that what Gallo Glass is doing is not recycling cannot, in my opinion, be supported. Since this is my blog and my opinion, I can speculate all I want. I speculate that DTSC will lose on the issue of "surrogate disposal" for the EP sludge that is returned to the process.
They will lose because 40 CFR 261.2(e)(1)(ii) and (iii) were put into the regulations specifically to pull material out of the hazardous waste requirements so that recycling could be facilitated. This goes way back to the late 70's and our antiquated view of recycling. Even the name of the law, "RCRA," alludes to the fact that recovery - recycling - was a necessary and prudent waste management practice.
Soon after the hazardous waste regulations were implemented, congress passed another law - the Pollution Prevention Act (PPA). Under Section 6602 (b) of the Pollution Prevention Act of 1990, Congress established a national policy that:
- pollution should be prevented or reduced at the source whenever feasible;
- pollution that cannot be prevented should be recycled in an environmentally safe manner whenever feasible;
- pollution that cannot be prevented or recycled should be treated in an environmentally safe manner whenever feasible; and
- disposal or other release into the environment should be employed only as a last resort and should be conducted in an environmentally safe manner.
You will notice that recycling is the second preferred method while the forth - landfilling (aka disposal) - is the least preferred.
I speculate - soundly I feel - that DTSC will lose on their claim that adding the EP sludge back into the process is not recycling. Not only does 262.2(e) allow for this, it is also consistent with what the EPA wants:
Some practices commonly described as "in-process recycling" may qualify as pollution prevention. Recycling that is conducted in an environmentally sound manner shares many of the advantages of prevention - it can reduce the need for treatment or disposal, and conserve energy and resources.
If Gallo Glass is correct, that the process of returning the EP sludge back into the process and that method "is recognized throughout the world as the environmentally-sustainable best practice and its use in the glass making process eliminates the need to transport and dispose of it in landfills" then recycling is indeed taking place.
And...if recycling is taking place, then 261.2(e) is being met. And if 261.2(e) is being met, the EP sludge "are not solid waste when recycled." And if the EP sludge is not a solid waste, it cannot be a hazardous waste. And if it is not a hazardous waste, the EP sludge is not a "recyclable material" as the definition in California's HSC 25120.5 only applies to hazardous waste. All of this makes compliant number 33 invalid.
The law and its regulations work both ways. White/gold dress, blue/gold dress, its now down to how you see it. I have presented my evidence and support that it is blue/gold. However, before I move on to show which DTSC claims fall apart and which one's might stick, I need to address the California take on things.
Number 33, in my opinion, flies out the window based on the evidence to the contrary I have presented. So let's look at it.
One small item I have not addressed is the DTSC claim that because the EP sludge contains arsenic, cadmium, lead, and selenium above the TCLP threshold, the "EP sludge is therefore subject to regulation as hazardous waste under the HWCL once it exits the the EP unit."
California can have rules that are more stringent than the EPAs. Is this one of them? If so, then the EP sludge would meet the definition of a hazardous waste based on this one sentence.
My gut feeling is that we will come to the same conclusion even while going throught California's hazardous waste determination process. Based on what I have seen so far, California follows the same path as the EPA. California may have additional rules to follow and may prohibit certain activities, but what we are discussing in complaint 33 deals fundamentally with the claim that the EP sludge is a hazardous waste.
On to the 9th post. If you are still with me, thanks. All of these words to explain the concept of recycling and hazardous waste. Wacky indeed!
Next post: Part 9
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