The reference DTSC gives is HSC 25201.12. Let's have a look shall we?
Notwithstanding any other provision of law, a hazardous waste facilities permit or other grant of authorization from the department, and payment of any fee imposed pursuant to Article 9.1 (commencing with Section 25205.1), are not required for a facility, with regard to the facility's operation of a physical process to remove air pollutants from exhaust gases prior to their emission to the atmosphere, as permitted by an air pollution control district or an air quality management district, unless a permit is required for that operation pursuant to the federal act. However, the facility is subject to all requirements imposed pursuant to this chapter on hazardous waste generators with regard to any liquid, semisolid, or solid hazardous waste that is generated as part of, and upon its removal from, the air pollution control process.
Okay...so that's about collecting fees for removing air pollutants. The last sentence pretty much clarifies that even if they don't collect a fee on the process, the facility has to comply with all requirements imposed on the waste generated once it is removed from the air pollution control process. Pretty standard legal stuff you see all the time. Just because we exempt you here, does not mean we exempt you there.
Nothing too big of a deal here. Basically while it is in the air pollution control process/device, it is technically in sanctuary from the hazardous waste regulations. Once it leave the sanctuary, all the the requirements imposed on a generator come in to play.
Standard practice there. Nothing in 25201.12 specifically mandates that the EP sludge become a hazardous waste. What 25201.12 does, in my opinion - and a lawyer can tell me I am full of beans here - is state that a hazardous waste determination must now be made on the material that has been removed.
Now we are back to square one. In California, does 40 CFR 261.2(e)(1)(ii) and (iii) apply?
I came across a PowerPoint presentation from a Jeff Van Slooten with DTSC titles "Recycling Exclusions & Exemptions." It is dated January 28, 2009 so this was the thinking back then and the time period of the complaint. Since 2009 things may have changed. If I find that change I'll write about it. This is not an exhaustive research process I do.
Interesting...here is what DTSC's Mr. Van Slooten tells us about why we should recycle:
Wow! That's a far cry from the DTSC who is looking at Gallo Glass. That DTSC claims in number 34 of the compliant that Gallo Glass "reaped a substantial economic benefit by failing to properly dispose of all EP sludge to an authorized disposal facility,"
Wait,,,isn't an economic incentive consistent with the reason we want folks to recycle? Okay, I understand the "all" part of that complaint, and DTSC is correct on that. But the vast majority of this EP sludge is, and was, recycled. Isn't keeping this EP sludge from a landfill (authorized disposal facility) consistent with "concern for the environment?" Doesn't "illegally stored" and "illegally treated" fly in the face of "less regulations" and "no permit to treat HW."
California, through this PowerPoint presentation - and there are others - is telling California generators that recycling waste is a good thing. At the same time, the DTSC looks at a recycling method and chooses to see it as not recycling contradicting themselves as they attempt to build a case.
Please do not get me wrong here. Gallo Glass is not guilt free. What I am focusing on is only one aspect of the compliant. Is the EP sludge that is returned to the process to make glass bottles recycling or is it "surrogate disposal" as the DTSC contends in the complaint.
If it is recycling, then all those benefits outlined in the slide above come into play and the dominoes of "illegally" this and "illegally" that do not fall for the DTSC.
Back to the question at hand. Is the EP sludge, once it is removed from the air pollution control device, a hazardous waste because it contains arsenic, cadmium, lead, and selenium above the TCLP threshold or does the act of recycling, by putting it back into the process, keep it from becoming a solid waste which, you know by now, keeps it from becoming a hazardous waste REGARDLESS of the arsenic, cadmium, lead, and selenium above the TCLP threshold.
Wacky! Let's make sausage!
Next post: Part 10
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