Bottle of Wine.... Gallo Glass vs. DTSC - Part 10

Sausage...yummy sausage...

From what I have been able to gather, California requires a generator to make a hazardous waste determination in a very similar manner as the other 49 states.  I am basing this off of a PowerPoint presentation produced by another DTSC guy named Charles Corcoran.  Check this slide out.  Does that look familiar?

That's from 2007, so I Googled HSC 25143.2 to see what it looks like:

25143.2.  (a) Recyclable materials are subject to this chapter and the regulations adopted by the department to implement this chapter that apply to hazardous wastes, unless the department issues a variance pursuant to Section 25143, or except as provided otherwise in subdivision (b), (c), or (d) or in the regulations adopted by the department pursuant to Sections 25150 and 25151.

Let's look at "or except as provided otherwise in subdivision (b), (c), or (d)"

(b) Except as otherwise provided in subdivisions (e), (f), and (g), recyclable material that is managed in accordance with Section 25143.9 and is or will be recycled by any of the following methods shall be excluded from classification as a waste:

(1) Used or reused as an ingredient in an industrial process to make a product if the material is not being reclaimed.

(2) Used or reused as a safe and effective substitute for commercial products if the material is not being reclaimed.

(3) Returned to the original process from which the material was generated, without first being reclaimed, if the material is returned as a substitute for raw material feedstock, and the process uses raw materials as principal feedstocks.

Does anything in there look familiar as well? Number 2 and number 3 is the same definition as 40 CFR 261.2(e)(1)(ii) and (iii).

And California - in their own rule and PowerPoint presentation state "shall be excluded from classification as a waste."  Not just a hazardous waste, but a waste.

But what about that "Except as otherwise provided in subdivisions (e), (f), and (g)," and "managed in accordance with Section 25143.9."  Fair enough.  You gonna make sausage, you gonna get your hands dirty making it.

(e) Notwithstanding subdivisions (b), (c), and (d), all of the following recyclable materials are hazardous wastes and subject to full regulation under this chapter, even if the recycling involves use, reuse, or return to the original process as described in subdivision (b), and even if the recycling involves activities or materials described in subdivisions (c) and (d):

This is the same requirement as 262.2(d) and (e)(2)(i), (ii), (iii), and (iv),  California adds a couple more:

Used or spent etchants, stripping solutions, and plating solutions that are transported to an offsite facility operated by a person other than the generator...

Used oil

For Gallo Glass, according to the compliant, there is no indication that the EP sludge is not "inherently waste like" or "used in a manner constituting disposal, or used to produce products that are applied to the land, including, but not limited to, materials used to produce a fertilizer, soil amendment, agricultural mineral, or an auxiliary soil and plant substance" or "burned for energy recovery, used to produce a fuel, or contained in fuels..." or "accumulated speculatively" or "spent etchent" or "used oil."

Used oil is part of the complaint.  It is not part of the discussion on the EP sludge.  So...25143.9(e) is not applicable to the EP sludge.

What about (f)?

Any person who manages a recyclable material under a claim that the material qualifies for exclusion or exemption pursuant to this section shall provide, upon request...

Any person claiming an exclusion or an exemption pursuant to this section shall maintain adequate records to demonstrate to the satisfaction of the requesting agency or official that there is a known market or disposition for the material, and that the requirements of any exemption or exclusion pursuant to this section are met.

For purposes of determining that the conditions for exclusion from classification as a waste pursuant to this section are met, any person, facility, site, or vehicle engaged in the management of a material under a claim that the material is excluded from classification as a waste pursuant to this section is subject to Section 25185.

This requires us to look at 25185.

In order to carry out the purposes of this chapter, any authorized representative of the department or the local officer or agency authorized to enforce this chapter...may, at any reasonable hour of the day, or as authorized ...do any of the following...

Okay, so even if it is excluded, the DTSC can still come in and do an inspection.

This leaves us with (g):

...recyclable materials excluded from classification as a waste pursuant to this section are not excluded from the definition of hazardous substances in subdivision (g) of Section 25316.

Okay, so excluded from being a hazardous waste does not exclude it from being a hazardous substance.

This leaves (f) as the one complaint DTSC can hold out there - again my opinion only - my speculation - my blog - for which Gallo Glass will have to work to show this to have been done.

Remember the DTSC complaint alleges that Gallo Glass did, or did not do, something based on how the DTSC perceives it.  Let's look at complaint 34 again.

If you look at (f) closely, it states in 25143.2 "to demonstrate to the satisfaction of the requesting agency or official."  You can see in 34 that the DTSC alleges this has not been met.

Does not meeting 25143,2(f)(2) negate 25143.2(b), (c), and (d)?  I sure hope not.  Because if it does, the DTSC could claim ad nauseam that it has never been demonstrated.  This one will be fun for the lawyers if they split hairs here.

This brings us to the last "catch" in 25143.3(b) " recyclable material that is managed in accordance with Section 25143.9."  Which, you guessed it, makes us have to look at 25143.9.  /sigh.

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'll come back to this one later.  It deals with management of the material to be recycled.  It is important because of the "shall not be excluded from classification as a waste."

Next post: Part 11