Bottle of Wine.... Gallo Glass vs. DTSC - Part 11

Isn't this fun?  One little simple question.  white/gold or blue/gold dress.  Recycling, not a solid waste, hazardous waste, surrogate disposal.

Ten post later and here we are.  Closer...but still a bit too far away.

Remember in Part 8 I said:

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.

I have my doubts now.  I am pretty sure that Gallo Glass has some issues with the EP sludge that the DTSC will get them on.  In fact, I was going to write about that issue as a way to show how easy it is to mess it all up because of how you manage the waste day-to-day.

Then I came across 25143.9.

A recyclable material shall not be excluded from classification as a waste pursuant to subdivision (b) or (d) of Section 25143.2, unless all of the following requirements are met:

I have skimmed over the complaint a number of times and I cannot find reference to this HSC.  It is my contention that the DTSC, through this complaint, never considered the recycling as being valid for Gallo Glass.  That is, California's own HSC 25143.2(b), was never considered as applicable.

Because HSC 25143.2(b) allows for recycling that entails the material being "used or reused as a safe and effective substitute..." or "returned to the original process...," and, when doing so, the material being recycled is not considered waste, Gallo Glass did not illegally store or treat a hazardous waste for the EP sludge that was recycled.

All the dominoes they knock over in the complaint have to do with the EP sludge being a hazardous waste.  Nothing in the complaint - and I could have missed it - mentions 25143.9.  This is going to be an interesting case for the lawyers.

Basically, as I see it, Gallo Glass, as the generator of the EP sludge, made a hazardous waste determination for the EP sludge they removed from the air pollution control device.  Since I cannot speak for them, I will hypothetically speak for them.

The end goal for the EP waste was to return it back into the process as a substitute for salt cake.  This is a common best practice for other companies who make glass bottles.  The use of the EP sludge in place of the salt cake (I am assuming here) saves raw material costs to make the glass bottles and does not create a lessor value bottle.  This, for all intents an purposes is what the "returned to the original process...," regulation was designed for.

Because of HSC 25143.2(b), Gallo Glass does not have to consider the EP sludge as a solid waste.  Since it is not a solid waste, it is not a hazardous waste and any hazardous waste requirement, as identified in the compliant, is not applicable to the EP sludge.

But there is a catch here.  Two of them if you live in California.

The first catch is applicable to both California and the EPA.  In order for 261.2(e)(1)(iii) and 25143.2(b)(3) to keep the EP sludge from not being a solid waste, an hence, not a hazardous waste, the EP sludge must be recycled.

"I am going to recycle it" works here provided speculative accumulation does not take place.  That is, you need to have a way to recycle it and actually recycle it and not just store it telling everyone its recyclable.  I can find no reference to speculative accumulation in the complaint for Gallo Glass.

Gallo Glass appears to have a valid recycling method for the EP sludge.  This method seems to be recognized in the industry and is a standard best practice they claim.  The fact that is saves landfill space or is more environmentally friendly or sound plays no part here.  All that we care about is the material is being recycled and the recycling is a valid recycling method, that is, it is not considered sham recycling.

California adds a second catch to this.  HSC 25143.9.  This here is very, very important for you California generators.  "A recyclable material shall not be excluded from classification as a waste ...unless all of the following requirements are met:"

If you don't recycle it, EPA takes your "not a solid waste away."  If you don't do these things in HSC 25143.9, California takes your "not a waste" away.

Here is what California requires Gallo Glass to do for the EP sludge that they want to recycle by returning it back into the process:

1. The container or tank shall be labeled or marked clearly with the words "Excluded Recyclable Material"
2. A business plan that meets the requirements of Section 25504...which specifically address the material or that meet the department's emergency response and contingency requirements which are applicable to generators of hazardous waste.
3. The material shall be stored and handled in accordance with all local ordinances and codes...secondary containment...the material shall be stored in tanks, waste piles, or containers meeting the department's interim status regulations establishing design standards applicable to tanks, waste piles, or containers storing hazardous waste.
4. If the material is being exported to a foreign country, the person exporting the material shall meet the requirements of Section 25162.1.

If you don't do these things then the recyclable material is not excluded from being a solid waste.

It is very easy to screw this up for yourself if you see the material as now just material.  It is not.  It is a solid waste that you don't have to call a solid waste as long as you legitimately recycle it under 261.2(e)(iii) and manage it as per HSC 25143.9,

Next post: Part 12.