Bottle of Wine.... Gallo Glass vs. DTSC - Part 7

That Matlock guy sure did not help Gallo Glass.  Can't we find someone a little more 21st century?

How about this guy?

.

Sherlock Holmes: C’mon! Where is your case? Did you eat it?

DTSC: It's not recycling, therefore its surrogate disposal!

Sherlock Holmes: Yes, thank you for your input, but you are missing one, possibly two, additional ways Gallo Glass gets out of this unscathed.

DTSC: No they will not! There was no recycling.  Gallo Glass put the EP sludge in silos where it was illegally stored and then illegally treated it in furnaces by adding it to the glass batch ingredient mix from which their glass bottles were made.  It's all there in the compliant, number 35 if you care to take a look.

Sherlock Holmes: Dear God. What is it like in your funny little brains? It must be so boring.  That Matlock lawyer may have been something big in his time, but the reclamation route he went was pretty sophomoric.

DTSC: And you can do better?

Sherlock Holmes: Gallo Glass puts the EP sludge back into the production process, yet you claim that this is surrogate disposal.  If I recall correctly, surrogate disposal is when the recycling material does not contribute any significant element to the product.

DTSC: Yes, that's how the EPA looks at it.

Sherlock Holmes: Yes, its right there on page 487 of that PDF is it not?  This seems to be the crux of your argument.  It is either recycling or it is not.  Deciphering this - it’s the key to throwing your complaint out, or at least a large part of it.

DTSC: We have the law and our regulations that we go by.

Sherlock Holmes:  Yes, and so do I.  I'll give you the fact that reclamation is not taking place.  Mr. Matlock was not too bright to use that as a defense.  Are you familiar with the rest of 261.2?  The part after (d)?

DTSC: Yes.

Sherlock Holmes: And if I recall from the Matlock transcript, the EPA's definition for recycling is valid.  So we can agree that recycling that is not reclamation also takes place when the materials is "used" or "reused."

DTSC: Yes, 261.1(b)(7).  It is also a "recyclable material."under our California regulations in the HSC 25120.5 by which it is a hazardous waste that is capable of being recycled because the EP sludge is a residue produced from the EP process.

Sherlock Holmes: Slow down there sir.  Let's not confuse two definitions that sound very similar.  "Recycling" is a very different definition from "recyclable material."  I am still not convinced that Gallo Glass' EP sludge is a hazardous waste.  If it is not a hazardous waste, then your "recyclable material" definition would not apply as that definition is for a hazardous waste that is capable of being recycled.  You do see the difference don't you?

DTSC: Illegally stored, illegally treated.  Surrogate disposal.

Sherlock Holmes: Yes, I figured that ould be your fallback, so let's look at a little closer shall we.  Gallo Glass is using the EP sludge in their process to make glass bottles are they not?  The question is, can they do that?  I'm not so sure yet under your silly California way of looking at waste, but I do have a good handle on how EPA views it.

DTSC: Mr. Holmes, you flatter yourself.

Sherlock Holmes: Let's get back to 261.2 shall we, specifically (e).  Would you be so kind as to read that to me?

DTSC: "Materials are not solid wastes when they can be shown to be recycled..."

Sherlock Holmes: "...by being used or reused as ingredients in an industrial process to make a product, provided the materials are not being reclaimed."  Did I state that correctly?

DTSC: Yes...

Sherlock Holmes: We agreed that there was no reclamation did we not?  And didn't you write in your complaint that Gallo Glass was using the EP sludge as and ingredient?

DTSC: They told us they were using the EP sludge as a substitute for salt cake, a raw ingredient used in the making of glass bottles.

Sherlock Holmes: Yes, number 34 in your compliant.  And if you will continue reading 261.2(e)(1), roman numeral (ii)...

DTSC: "Used or reused as effective substitutes for commercial products."

Sherlock Holmes: So according to 261.2(e)(1)(ii) "materials are not solid wastes when they can be shown to be recycled by being...used or reused as effective substitutes for commercial products."

DTSC: Yes, but we have not been provided with the requested information necessary to confirm that claim.

Sherlock Holmes: Yes, I read that in number 34.  I also read that based on "information and belief" you contend that Gallo Glass "reaped a substantial economic benefit by failing to properly dispose of all EP sludge to an authorized disposal facility."

DTSC: Yes, we also contend that Gallo Glass "failed to demonstrate that its practices qualify as recycling under California law" and "that it also did not comply with requirements for legitimate recycling." 

Sherlock Holmes: Yes, so would you also contend that disposal in a landfill is a better management practice then recycling?

DTSC: No, as you can read in our press release, we state ”DTSC promotes and supports legitimate recycling."

Sherlock Holmes: So...if this EP sludge was being recycled is a legitimate recycling method, would you allow it?

DTSC: I can't really speak for all of DTSC on that matter...

Sherlock Holmes: I figured as such.  Well I will then have to speak my mind on this subject, after all, that's what I was brought in to do.  Your complaint rests on the premise that the recycling of the EP sludge is not recycling therefore making the process "surrogate disposal."  You claim that Gallo Glass failed to demonstrate to you that their practice of putting the EP sludge back into the process does not qualify as recycling under California law.

DTSC: That is correct.

Sherlock Holmes: Well, while you were confirming what I already know, I looked up your definition of "recycling."  According to your California HSC 25121.1, you define recycling as "using, reusing, or reclaiming a recyclable material."  That sounds just like EPA's definition, does it not?

DTSC: We also add that it "means the collecting, transporting, storing, transferring, handling, segregating, processing, using or reusing, or reclaiming of recyclable material to produce recycled material."

Sherlock Holmes: Precisely!  So Gallo Glass takes their EP sludge that is produced when they make glass bottles and puts it back into the process to make glass bottles.  By doing this, they contend, the "precipitate captured by our air emission controls is comprised of the same raw materials used to make glass so we use it instead of adding new raw materials."  Why are you having a difficult time seeing this as recycling?

DTSC: Err...well Gallo Glass claims they are using it as a substitute for salt cake.  You can't just be a substitute.  261.2(e)(1)(ii) states it must be an "effective" substitute.  Like we told you, Gallo Glass has not "provided us with the requested information necessary to confirm that claim."

Sherlock Holmes: Okay...and in your complaint you acknowledge that Gallo Glass took a "significant amount" of EP sludge and "added it to the glass batch ingredient mix" and placed it "in the furnace" from which "glass bottles are made."  So, if I have this correct, the EP sludge is produced from making glass bottles, it is then put back into the glass bottle making process as a substitute for salt cake, whereby new EP sludge is produced and the process repeats.

DTSC: Yes, but we have no proof that the EP sludge is an effective substitute for salt cake, therefore Gallo Glass "failed to demonstrate that its practices qualify as recycling under California law." 

Sherlock Holmes: Yes, I am well aware of that oft repeated claim.  Are you daft?  We can agree, can we not, that the EP sludge comes from the process of making glass bottles and it is put back into the process of making glass bottles.  Gallo Glass tells us that "the use of precipitate in glass making is recognized throughout the world as the environmentally-sustainable best practice."

DTSC: That's what we acknowledge has happened in our complaint, except that last part...that's what Gallo Glass states.

Sherlock Holmes: Would you read 261.2(e)(1)(iii) for me please?

DTSC:  "Returned to the original process from which they are generated, without first being reclaimed or land disposed."

Sherlock Holmes: Go on...there is more, isn't there?

DTSC: "The material must be returned as a substitute for feedstock materials."

Sherlock Holmes: Gallo claims that it is, you claim that it is not.  White/gold or blue/gold dress I heard it described as. So if less feedstock is required, less waste is generated, and the bottles do not, as you claim in your press release state that you have "no evidence that consuming wine stored in these bottles poses a health threat," then the caveats in 261.2(e)(2), you can read them...the glass bottles are not "inherently waste-like," "used in a manner constituting disposal or used to produce products that are applied to the land," "burned for energy recovery, used to produce a fuel, or contained in fuels," or "accumulated speculatively."  None of those issues were addressed in your complaint as it relates to the process of placing the EP sludge into the furnace to make glass bottles.  Is that correct?

DTSC: Yes, none of those caveats  are listed in the compliant.

Sherlock Holmes: I don't know...maybe I am missing something here, but how is this process of putting the EP sludge, that was generated from making bottles, back into the making of glass bottles not recycling?  Help me out here, because I am not seeing surrogate disposal.  This EP sludge, as I see it, meets either 261.2(e)(1)(ii) or 261.2(e)(1(iii).  What more proof do you need then this current method of returning EP sludge back into the glass bottle making process is "recognized throughout the world as the environmentally-sustainable best practice?"  It is elementary even to Matlock that what Gallo Glass is doing is recycling within the definition of 261.2 and therefore is not a solid waste which, therefore, makes the EP sludge not a hazardous waste.

Announcer: Has Sherlock Holmes found the smoking gun?  Has he deciphered this correctly?  What will the DTSC throw at him next? Tune in for the next post, Part 8.