Bottle of Wine.... Gallo Glass vs. DTSC - Part 6

What we know - kind of know - assume to know - based on the compliant and Gallo Glass' Word doc is that the EP sludge is being returned back into the process.

This is, and would be considered to be recycling if you see that dress as white/gold. According to the DTSC press release:

The complaint, filed in Alameda County Superior Court, alleges the company illegally introduced dust containing lead, arsenic, cadmium and selenium into the manufacture of its wine bottles.

 Gallo Glass states:

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.  The use of precipitate in glass making 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. 

The DTSC thinks the dress is blue/gold:

Here is where the lawyers are going to make their pay and the judge and/or jury is going to become cross-eyed.

If it is recycling, the DTSC has no case (okay, they can get them on the spilled material).  If it is not recycling they do.

The DTSC calls it "surrogate disposal" which, I believe, is most likely based on this:

An example the EPA gives is the use of certain heavy metal sludges in the production of concrete. Because the sludges do "not contribute any significant element to the concrete's properties," the EPA said it would not consider this legitimate recycling. An example the Agency gives of legitimate recycling is the use of spent pickle liquor as a phosphorous precipitant in wastewater treatment.

What is going to happen here is the splitting of hairs.  If this is how the EPA views recycling that is not recycling and is really "surrogate disposal" then the DTSC would most likely take that same approach.

If I have said it once, I'll say it again.  If you want to do anything other than ship a waste to a hazardous waste permitted facility on a hazardous waste manifest, the burden to prove that it is okay falls on the generator's shoulders.

"Know before you Throw" I Teach my students.

Let's get back to EPA's regulations.  Remember that "[261.2(b)(1)(B)] Recycled, as explained in paragraph (c) of this section..." I mentioned in my previous post?  Well that's where we need to start with Gallo Glass.  Here is what that says:

[261.2(c)(3)] Reclaimed. Materials noted with a ‘‘—’’ in column 3 of Table 1 are not solid wastes when reclaimed. Materials noted with an ‘‘*’’ in column 3 of Table 1 are solid wastes when reclaimed unless they meet the requirements of ...

Here is where it gets fun kids!  Let's look at Table 1:

Let's bring out Matlock to explain this:

Matlock: Do we all agree that Gallo Glass produces a sludge?  Do we also all agree that the sludge they produce exhibits the characteristic of hazardous waste, in this case, it exceeds the toxicity threshold in 261.24's Table 1 for arsenic, cadmium, lead, and selenium?

DTSC: Objection!

Judge: Overruled!

Matlock: Do you see, on the EPA's Table 1 which is in 40 CFR 261.2, an item in the first column that sounds a lot like Gallo Glass' EP waste?  I think the third item down "Sludges exhibiting a characteristic of hazardous waste" fits the bill pretty gosh darn close!

DTSC: Objection!

Judge: Overruled!

Matlock: So as I was a sayin' we have Gallo Glass's EP sludge clearly identified on Table I do we not?  Now my client takes that EP sludge and returns it back into the process.  This is an industry best practice used by most glass producers.  This, I think we can all agree, meets the definition of recycling does it not?

DTSC: Objection!

Judge: Define for us the term "recycling" Mr. Matlock.

Matlock.  Okay, if it please the court, the EPA defines in 40 CFR 261.1(b)(7) that a material is recycled if it is  "used, reused, or reclaimed."  Now, as I was saying, Gallo Glass recycles this EP sludge by putting it back into the process where it came from.  This is recycling in all senses of the word, and. I think we can all agree, meets the EPA definition.

DTSC: Objection!

Judge: Overruled!

Matlock: Now my eyes are not what they used to be when I was just a young sheriff in a small town, so I am going to need some help here.  DTSC can you tell me what symbol is noted in forth column over, the one titled "reclamation for the material in the first column that is three down?"

DTSC: Objection!

Judge: Answer the question DTSC!

DTSC:  There is a "—" in column 3 of Table 1.

Matlock:  And can you tell the judge what the "—" means?

DTSC: Objection!

Judge: Answer the question DTSC!

DTSC: That "—" in the reclamation column means that "sludges exhibiting a characteristic of hazardous waste" are not solid waste when they are reclaimed.

Matlock:  And you would agree, DTSC, that reclamation is recycling as per the EPA would you not?

DTSC: Yes, reclamation is recycling under EPA's definition.

Matlock:  And you would also agree, DTSC, that you cannot have a hazardous waste without first having a solid waste.  Isn't that the way y'all make a hazardous waste determination?  Solid waste first?

DTSC: Yes.  Solid waste is required to call something a hazardous waste.

Matlock:  And in that column there is a "—" symbol which means that Gallo Glass' EP sludge is not a solid waste and therefore is not a hazardous waste!  I'm a rational, reasonable man DTSC, and as plain as the nose on my face, Gallo Glass did not generate a hazardous waste!

DTSC: Objection!

Judge: What is your objection DTSC, Matlock's brilliant summary has convinced me.

DTSC:  Table 1 only excludes "sludges exhibiting a characteristic of hazardous waste" from being a solid waste if they are reclaimed.  Would your honor ask Mr. Matlock to define for him what the definition of reclamation is?

Matlock: Objection!

Judge: Answer the question Mr. Matlock.

Matlock: Er...ah...gosh...here it is...261.1(b)(4) "a material is "reclaimed" if it is processed to recover a usable product, or if it is regenerated."

DTSC:  And what does your client tell us they are doing with that EP sludge?  If you look at number 34 in the compliant you...

Matlock: Objection!

Judge: Answer the question Mr. Matlock.

Matlock: "Defendants claim EP sludge was being used as a substitute for salt cake, a raw ingredient used in the making of glass bottles..."

DTSC: Thank you Mr Matlock. Will your honor agree that what Gallo Glass is doing with the EP sludge is not reclamation and therefore their EP sludge is a solid waste?

Judge: Well...based on that information, I would have to agree with you...

Matlock: Doh!

Announcer: Has Ben Matlock finally met his match?  Does Gallo Glass generate an EP sludge that is a hazardous waste?  Can this EP sludge be recycled by putting it back into the process?  What will happen next is anyone's guess! Stay tuned for our next post: Part 7!